Fourth Circuit Reverses Conviction Because of Illegal Seizure

United States of America v. David Foster, No. 09-5161 (4th Cir. March 2, 2011). Available here.

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina.  The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant.  A police officer walked by the men and noticed that one of them mouthed something to the other.  The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands.  The officer called his headquarters and was informed that one of the young men was “under investigation.”  After a few minutes, the officer approached the men, seized them and searched their vehicle.

Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.”  The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.

The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis.  Rather, it is the following passage:

“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”


Posted by Brennan Sullivan and McKenna

Fourth Circuit Faults All Parties, Vacates and Remands

United States v. Lorenzo Martez Lewis, No. 09-4467 (4th. Cir. Feb. 2, 2011) (available here)

In a case decided this week, the U.S. Court of Appeals for the Fourth Circuit took issue with either mistakes made, or arguments advanced by all parties.

In the district court below, the defendant entered into a plea agreement with the government pursuant to Rule 11(c)(1)(C) (a "C" plea).  Unlike most plea agreements entered in federal courts, a C plea is binding upon the judge -- so long as the court accepts the plea and the terms of the agreement.  Should the court reject any of the terms of the agreement, the defendant is given the opportunity to withdraw his plea of guilty.

In Lewis, the court below accepted the defendant's plea of guilty, but refused to abide by the terms of the plea agreement -- namely, that any sentence imposed would run concurrent to the state court sentence the defendant was already serving.  While the court had discretion to reject the plea agreement, it had no discretion to alter the terms of the agreement without giving the defendant the opportunity to withdraw his plea.  In the end, the court sentenced the defendant to a term of imprisonment to run consecutive to any other sentence the defendant was already serving.

On appeal, the defendant's appellate counsel filed a brief pursuant to Anders v. California, essentially submitting that there were no meritorious issues for appeal, but requesting that the Court of Appeals consider whether the district court had erred in sentencing the defendant to a consecutive term of imprisonment.  The defendant also submitted a pro se submission to the Court stating that the plea agreement was supposed to be binding on the Court, if the Court accepted it.  The government's appellate counsel argued that the parties never "intended or understood the concurrent sentence provision to be an agreement for a specific sentence under Rule 11(c)(1)(C).

The Court had little difficulty in analyzing the issue presented.  The government and the defendant entered into a sort of contract which, if accepted by the district court, would be binding.  The agreement specifically stated that "the sentence of imprisonment shall be served concurrent with the state sentence."  The district court in this case, however, never explicitly rejected (and tacitly accepted, albeit partially) the plea agreement.  The defendant was not given an opportunity to withdraw his guilty plea.  And notably, "the prosecutor failed to correct the court's misunderstanding of the concurrent sentence provision."  The Court noted that the government's failure to uphold its obligations under the agreement constituted a breach.

"The government's contention that the parties actually intended and understood the concurrent sentence provision to be a mere recommendation is - put mildly - nearly frivolous."

The Court vacated the defendant's conviction and sentence, and remanded the case.  The defendant himself is the only person that came out of this decision without drawing major criticism from the Court of Appeals.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Vacates Improper Leadership Enhancement

 United States v. Kevin M. Slade, No. 08-4932 (Decided Jan. 27, 2011).

In an opinion filed yesterday (available here), the Fourth Circuit vacated and remanded a case for sentencing where a district court erroneously applied an aggravating leadership enhancement to a defendant in a drug conspiracy.

At the time of sentencing, the district court applied a three-level enhancement to the defendant's guidelines calculation because of his aggravating role as a manager or supervisor of other participants in the drug conspiracy.  (U.S.S.G. 3B1.1).  This enhancement is reserved for defendants who "control the activities of other participants" or exercise managerial responsibility.

The district court applied the enhancement, to which the defendant did not object, on the basis of the following factors: the defendant sold powder and crack cocaine to other co-conspirators (who in turn sold it to others), the defendant was driven around by a co-conspirator during the course of the drug conspiracy, and some of the co-conspirators sold drugs "for" the defendant.  However, the Fourth Circuit held that there was insufficient evidence in the record that the defendant actually directly supervised anyone, or managed the operations.

The Court of Appeals remanded the case for re-sentencing, at which time the district court will have the opportunity to find facts that may increase the defendant's sentencing exposure under this enhancement, anyway.

Posted by Brennan Sullivan and McKenna

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