For your Friday reading pleasure, a few recent Fourth Amendment wins:
Before officers knew they were patting down a felon, they had no reason to reach into his pocket to retrieve what they thought was ammunition. Items that are neither weapons nor contraband---and ammunition is not contraband unless possessed by a felon---cannot be retrieved during a Terry search. This according to the Eleventh Circuit in United States v. Johnson.
Eleven minutes into a traffic stop, an officer had all the information he needed to issue citations and send the driver and passenger on their way. Instead he dragged his feet, waiting for a drug dog to arrive and only then handing out the citations. After the dog failed to alert, the officer extracted consent to search from the driver. Did the officer unreasonably extend the stop? He did, said the Seventh Circuit in United States v. Rodriguez-Escalera, affirming the district court's suppression order.
Probable cause that a person is a drug trafficker is not enough for a search warrant to search that person's home. So said the District Court for the Southern District of Indiana in United States v. Zamudio, rejecting the government's argument that "drugs are likely to be found where drug dealers live," and refusing to excuse the search on good-faith grounds.
Thursday, March 29, 2018
Sunday, March 25, 2018
Federal conspiracy to commit murder in aid of racketeering held not categorically a crime of violence
Under
the Guidelines, we know that the base offense level for a felon-in-possession
conviction increases where the defendant has at least one prior felony
conviction of a crime of violence. And we also know from the Guideline’s
commentary that a crime of violence (as set forth in §4B1.2(a)) includes the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.
The
Fourth Circuit reminded us this past week in United States v. McCollum, that when evaluating a client’s prior
conviction for an undefined, enumerated inchoate offense, two sets of elements are at issue for
determining whether the conviction falls under §4B1.2(a)’s umbrella: the elements
of the inchoate crime, as well as the elements of the underlying offense.
In
McCollum, the defendant argued that
the court erred by enhancing his base offense level for a § 922(g) conviction upon a finding
that his prior conviction for federal conspiracy to commit murder in aid of racketeering
constituted a crime of violence. Specifically, the defendant argued that by applying
the categorical approach to his prior federal conviction as the Supreme Court has
instructed courts to do, the sentencing court was required to look at the “generic,
contemporary meaning” of the inchoate offense, as well as the underlying
offense, to ensure that the elements of his crime of conviction are no broader
than those of the generic federal statute. And while conceding that the
underlying offense would qualify as a crime of violence, he argued that the inchoate
crime did not.
The
Fourth Circuit agreed. Citing authority from the Ninth and Tenth Circuits, the McCollum court recognized that the generic
federal conspiracy statute required an overt act as an element of the offense. But
because conspiracy to commit murder in aid of racketeering (§ 1959(a)(5)) does
not require an overt act, it criminalizes a broader range of conduct than that
covered by generic conspiracy. The Fourth Circuit thus vacated the defendant’s sentence
and remanded for resentencing, concluding that a prior federal conviction for
conspiracy to commit murder in aid of racketeering does not qualify categorically
as a crime of violence to support an enhanced sentence.
Tuesday, March 20, 2018
Brady's mandate still needs enforcing half a century later
It
is well-settled under Brady v. Maryland
that a defendant may obtain a new trial where he establishes that evidence
suppressed by the government (including all those acting on the government’s
behalf)
was favorable and material to either his guilt or punishment.
The
Seventh Circuit affirmed the district court’s grant of a new trial based on
findings that the suppressed recording was both favorable and material to the
defendant’s case. The Ballard court
agreed that the recording provided “ample fodder for impeaching [the loan
officer’s] credibility” as it was probative of his character for truthfulness.
And, because he was never prosecuted, the jury could have inferred that the loan
officer was biased in favor of the prosecution. Had the government "played by the rules" and allowed the defense to
cross-examine the loan officer about his credibility, and had the jury found
him incredible, the Seventh Circuit concluded “it is not a stretch to see the
verdict could have been different.”
The
Seventh Circuit’s decision this week in United States v. Ballard, succinctly enforced
Brady’s mandate.
In
Ballard, the defendant had been
convicted of bank fraud after a jury credited a bank loan officer’s testimony
and rejected the defendant’s “good faith” defense that the loan officer and his
superiors not only knew, but also authorized and pressured him to carry out the
unlawful acts. Later, the defense moved for a new trial when it learned of a
recording from a prior, distinct government investigation (involving the same prosecutor and investigator) in which the loan
officer admits to wrongdoing.

Make
no mistake, Brady still (over a half
century later) does not tolerate a conviction where withheld evidence that was
favorable to the defendant undermines
confidence in the jury’s verdict. And as Ballard
demonstrates, confidence in a verdict may be undermined by the suppression
of one recording relevant to the credibility of just one of 13 witnesses
who testifies at trial.
Sunday, March 18, 2018
Supreme Court to examine SORNA's application to pre-SORNA offenders---under the nondelegation doctrine
Do you have a client charged with a SORNA offense? Did that client's registration-triggering conviction predate SORNA? If so, you might be tempted to argue that ex post facto principles prohibit any conviction under SORNA. And we hope that you win that argument. But there may be a better argument---one that the Supreme Court will be considering next term: Whether Congress violated the nondelegation doctrine when it left it to the attorney general to decide whether to apply SORNA retroactively.
This is the question that the Supreme Court has decided to answer in Gundy v. United States:
This is the question that the Supreme Court has decided to answer in Gundy v. United States:
Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.With the cert grant in Gundy, it's important to preserve this issue. But don't assume it's a dead-bang winner. The last time the High Court relied on the nondelegation doctrine to strike a federal law was in 1935.
Monday, March 12, 2018
Carrying a gun near (somebody's) drugs not enough for sentencing enhancement
If we know anything by now, it's that guns + drugs = a higher sentence, right?
Not always. Case in point: United States v. Ferrell.
Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).
In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.
Know what elements are necessary for every enhancement. Challenge those elements. You just might win.
Not always. Case in point: United States v. Ferrell.
Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).
In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.
Know what elements are necessary for every enhancement. Challenge those elements. You just might win.
Tuesday, March 6, 2018
Your mission: challenge the ping!
But first, the issue must be properly raised and briefed. Do you have the right case, and are you up for the task? If so, take a look at the Tenth Circuit's decision this week in United States v. Banks, rejecting a pinging challenge on other grounds, but noting that "whether pinging a phone to determine its current location is a search under the Fourth Amendment—remains an open question in this circuit," and discussing the considerations and cases that might come into play in answering that question.
Sunday, March 4, 2018
Entire First Circuit calls on High Court to re-examine the sentence 'proportionality principle'
The Eighth Amendment applies to noncapital sentences, too. And yet, if a sentencing court is stripped of making any individualized findings and is left only with an arithmetical assessment that “seemingly could have been more severe only if it had required death,” where then is the Eighth Amendment’s proportionality safeguard?
The First
Circuit posed this heady question just last week, explicitly urging the U.S. Supreme
Court to revisit its outdated precedent on the Eight Amendment’s applicability
to lengthy, adult prison sentences.
In United States v. Rivera-Ruperto, 130
years of the defendant’s sentence was imposed for six stacked §
924(c) convictions stemming from an FBI sting operation targeting Puerto Rican police
officers. Rivera-Ruperto participated as an armed security guard in a number of
“deals” involving fake cocaine. FBI agents posed as the buyers and the sellers.
As a consequence of his involvement in this one sting operation, Rivera-Ruperto
received a mandatory sentence of five years for his first § 924(c) conviction
followed by consecutive twenty-five-year prison sentences on the subsequent five
§ 924(c) convictions.
The First
Circuit denied Rivera-Ruperto’s request for rehearing en banc to challenge the
constitutionality of his sentence, but in doing so, the entire Circuit joined
in Judge Barron’s momentous concurrence calling on the U.S. Supreme Court to
reassess its three-decade old, three-judge concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991), which controls the outcome
of this case. Under Justice Kennedy’s concurring opinion in Harmelin, the Eighth Amendment “forbids
only extreme sentences that are ‘grossly disproportionate’ to the crime.” But as
Judge Barron cogently opined, sentencing courts “have no choice but to approve
mandatory ‘forever’ sentences under § 924(c) so long as they can hypothesize a
rational reason for the legislature to have thought that the underlying criminal
conduct was as serious as the large quantity drug possession at issue in Harmelin.” (Note: see United States v. Angelos, 433 F.3d 738, 750-51 (2006), for Tenth Circuit precedent applying Harmelin in this fashion.)
Judge Barron’s
concurrence provides thorough insight on why Congress did not carefully
consider the resulting impact of 924(c) convictions and stacking in general.
The concurrence also provides two lines of more recent Supreme Court precedent
(under Alleyne and Miller/Graham) as reinforcement for why the Court must reassess Harmelin in the modern era. As Judge Barron concluded, “a
consequence as grave as the one that Harmelin
requires in a case like this should have the imprimatur of more than only a
nearly three-decade old, three-Justice concurrence.”
This isn’t the only kind
of fact pattern and noncapital sentence that the Eighth Amendment’s
proportionality principle should reach, but it’s certainly one of them
according to the entire First Circuit.
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