Fourth Circuit Vacates Sentence – Alford Plea to Second Degree Assault Not ACCA Predicate

The opinion in United States v. Alston is available here.

In an opinion published last week, Judge Niemeyer wrote a unanimous opinion holding that where a defendant has previously been convicted of second-degree assault in Maryland state court, by way of an Alford plea, that conviction may not be used as an ACCA predicate.

There are other posts about ACCA on this blog, but in summary – certain crimes do not, on their face, qualify as violent felonies, because there are non-violent ways to commit the crimes.  In Shepard and later cases, the Supreme Court has tailored the types of information courts can look to in determining whether a conviction qualifies as a “violent felony” so that it can be used as a predicated under the Armed Career Criminal Act.  Generally, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.”

In Alston, the district court permitted the United States Attorney’s Office to prove that the defendant’s Alford plea satisfied the “violent felony” requirement by introducing the plea colloquy, during which the state court prosecutor laid out the evidence the state would have presented had the case proceeded to trial.  Importantly, because the plea was made pursuant to Alford, the defendant did not admit guilt, nor did the defendant admit any of the facts the prosecutor said they could prove.  The defendant simply admitted that the evidence the prosecutor claimed they would present, would be the evidence they presented – without any assertion as to whether the defendant agreed with the truth of such evidence.

The Fourth Circuit reversed the decision of the district court and held that in a case where the defendant entered an Alford plea to a crime that may or may not be a violent felony, this plea itself may not be used as a mechanism to qualify the crime as a predicate under the ACCA.

Posted by Brennan Sullivan and McKenna

Failure to Request Informant Instruction = Ineffective Assistance

This past week, in United States v. Luck, the Fourth Circuit held that where the outcome of a criminal case might hinge on the credibility of the government's cooperating witnesses, a defense attorney's failure to request an "informant" jury instruction is ineffective assistance.

The opinion is available here.

During the defendant-appellant's trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack.  In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant's house - where paraphernalia, but no drugs were recovered - and a grainy video allegedly depicting the defendant engaged in a drug transaction.

During his cross-examination of the government's cooperating witnesses, the defendant brought the witnesses' biases to the attention of the jury - the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation.  However, at the close of trial, the judge did not read the special "informant instruction" to the jury.  This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to - even if it is not the truth.

For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner -- even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).

In the end, the court held that the defendant's attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.

Posted by Brennan Sullivan and McKenna