Wednesday, July 22, 2009

Maker of Fake Money Not Necessarily a "Leader" of Operation

US v. Cameron: Cameron was caught trying to pass a counterfeit $20 bill at a store in Dunbar. Police who responded secured a second fake $20 and an admission from Cameron that he intended to pass it. Searches of Cameron's grandmother's home and his sister's home follow, uncovering various implements and equipment that could be used for making counterfeit bills. In particular, officers seized a computer from his sister's house that had, on the hard drive, a single image of a counterfeit $20 bill. Cameron went to trial and was convicted of producing and uttering counterfeit currency.

At sentencing, his offense level was enhanced under USSG 3B1.1(a) for being an "organizer or leader" of the counterfeiting operation. However, at sentencing, the Government's sole witness actually testified that she barely knew Cameron, didn't know much of his role in the operation, that he did not recruit her, nor did he get a cut of the scheme's proceeds. Nonetheless, the district court overruled Cameron's objection and imposed the enhancement. Cameron was sentenced to 46 months in prison.

On appeal, Cameron challenged both his production conviction and the application of the leadership enhancement. The Fourth Circuit affirmed the conviction, concluding that there was sufficient evidence collected from the two searches (there was no testimony from inside the operation at trial) to allow a jury to conclude that the Government met its burden of proof.

However, the Fourth Circuit vacated the sentence because of the application of the leadership enhancement. Reiterating both earlier precedent and Guideline commentary that the enhancement only applies to the supervision of other people, not property. It rejected the Government's argument that because Cameron made the bills he must have exercised some leadership role in the operation. The court also noted that the Guidelines provide a separate enhancement in counterfeiting cases for the person who actually makes the fake bills.

Congrats to the SDWV defender office on the win!

Tuesday, July 21, 2009

Failure to Give Justification Defense Requires Reversal of Felon-in-Possession Conviction

US v. Ricks: Ricks's partner, Blue, returned to their home after several days absence, acting strangely. Ricks noticed that Blue had a gun in his hand, so Ricks pinned him against the wall and knocked the gun out of his hand. Ricks then picked up the gun, removed the clip, and tossed the gun and clip away in opposite directions. Blue fled. Ricks picked up the gun and the clip and placed them (without putting the clip back in the gun) on a dresser in their bedroom and returned to the living room to watch TV. About 15 minutes later, Blue returned to the home with two police officers. Ricks admitted there was a gun in the house and admitted he had a prior felony conviction.

Ricks was charged with being a felon in possession of a firearm. At trial, he requested a jury instruction on justification, which the district court denied. The court concluded that such a defense was not available in this circuit, as the Fourth Circuit had never held that the defense existed. However, the district court indicated that, if the defense were available, it would apply in this case. Ricks was convicted at trial.

While he was awaiting sentencing, the Fourth Circuit decided the Mooney case, in which the Fourth Circuit held that failure to inform a defendant that the defense was available constituted ineffective assistance of counsel. The district court held a sue spontehearing as to what application Mooney had to Ricks's case. Reversing itself, somewhat, the district court concluded that although a justification defense was apparently available in the Fourth Circuit, it was not applicable in this case. Therefore, Ricks's conviction stood and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit unanimously reversed. The parties agreed on appeal that the district court's initial decision that the justification defense was not available in the Fourth Circuit was error. Therefore, the only issue on appeal is whether the facts of the case supported the jury being instructed about the defense. As to that issue, the focus was on what Ricks did with the gun after Blue fled their home. The Government argued that because Ricks left the gun in the home afterwards, he "had other reasonable alternatives to continued possession of the gun." The Fourth Circuit disagreed, essentially concluding that a properly instructed jury could have found otherwise. Critically, the court refused the Government's invitation to hold that the method of dispossessing the firearm in Mooney- turning it over to police as soon as possible - is the only means to do so. The Government also tried to argue that Ricks's constructive possession of the gun extended to the point where the police officers arrived, but the court concluded that there was insufficient evidence to concluded that Ricks intended to exercise continued dominion and control over the gun left in the bedroom.

Ricks's conviction, therefore, was reversed.

Congrats to the FPD office in the WDNC on the win!

Tuesday, July 07, 2009

Conspiracy Is "Violent Felony" Under ACCA



Carjacking Conviction Affirmed Over Numerous Objections

US v. Blake: Blake and Tolbert were involved in a carjacking in Maryland, during which the driver of the car was shot in the head, run over, and killed. Tolbert was arrested shortly thereafter and gave a statement basically admitting to being part of the process but putting the gun in Blake's hand and the ideas in Blake's head. That statement provided probable cause to arrest Blake.

Once at the station, Blake demanded a lawyer and was placed in a cell. He received a notice of the charges to be filed against him, which incorrectly stated that he faced the death penalty (at 17, he was too young to qualify in Maryland). The notice of charges also included a summary of what Tolbert had told the officers. At one point, while Blake was in the cell, an officer not otherwise involved in the investigation who was accompanying the lead officer taunted Blake, saying "I bet you want to talk now, huh?" He was escorted out by the lead officer, who said, "no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer." Later, when the lead officer went to take Blake some clothes, Blake asked if he could talk to him. Blake was re-Mirandized and gave a statement, admitting to being present during the carjacking, but putting the gun in Tolbert's hands.

Blake was charged in Maryland with murder. He moved to suppress the statements he made after his arrest, arguing that they were made in violation of his already invoked right to counsel. The case bounced around the Maryland courts and was eventually accepted for review by the Supreme Court, which later dismissed the case as having been improvidently granted. As a result, Blake was never convicted of the charges in Maryland. Blake was then charged in federal court of, among other things, carjacking causing death. He was convicted and sentenced to life in prison.

On appeal, Blake made several arguments attacking his conviction, all of which the Fourth Circuit rejected. First, Blake made the same argument that had been successful in the Maryland courts, that his statements should have been suppressed. The court disagreed, holding that the officer's taunt about Blake wanting to talk wasn't interrogation and therefore did not violate Blake's right to counsel. The fact that Blake was re-Mirandized and otherwise cooperative after asking to resume conversations with the lead officer was also key. Second, Blake argued that the federal court lacked jurisdiction over him because he was only 17 at the time of the crime and the Government had not complied with the procedures set forth in the Juvenile Delinquency Act.

The court also concluded that Blake was, in fact, not a juvenile by the time federal charges were brought (three months after his 21st birthday) and therefore the JDA had no application to him. The court also concluded that the trial court did not abuse its discretion by denying Blake's request for a mistrial based on statements made during the Government's opening statement, in allowing evidence about a polygraph examination Blake took, allowing a prosecution witness to testify sooner rather than later at trial, or in excluding as hearsay the testimony of a defense witness. Finally, the court rejected Blake's argument that the district court erred in instructing the jury on the death element of the carjacking offense.