United States v. Steve Hale (4th Cir, 5/17/17): Fences, Addicts, and Stolen Goods, Oh My! The Fourth Circuit Upholds Denial of Willful Blindness Jury Instruction.

This is an important case because of the attention it directs to the willful blindness jury instruction. Steve Hale was convicted of a whole host of violations– transporting stolen property in interstate commerce, knowing the goods to have been stolen, conspiring to do the same, of making false statements on his tax returns, failing to collect and pay employee taxes, and obstructing justice. His main argument on appeal was that the District Court judge erred in giving the jury a willful blindness instruction that informed the jury that he knew the property at issue was stolen. He raised other challenges, but the most interesting other claim (in my humble opinion) relates to the statements the government made to the jury during closing argument.

Essentially this scheme involved a number of drug addicts in and around the Gastonia, North Carolina area who would go into stores and shoplift large amounts of over the counter medications and health and beauty aids.  They operated in groups of 2-4 people. These addicts would then take their bounty and hand them over to a fence. The fence would then remove the stickers and other identifying information that showed that the goods were coming from a particular store. Then these fences would sell the materials to Hale who would then sell these products on the secondary market.

During the course of its investigation, law-enforcement surveillance showed that one particular fence, “Bridges”, regularly delivered stolen merchandise to Hale’s warehouse. Bridges and others delivered their products in plastic garbage bags, plastic storage bins, and boxes. Hale paid cash for the merchandise that was delivered. On October 20, 2010, agents intercepted a FedEx shipment from the warehouse to another person in the Boca Raton, Florida area. In that shipment were items that the officers had marked with an ultraviolet light prior to having a cooperating witness sell the items to Bridges. In short, law enforcement was tracking where some of these materials were being transported. Later, law-enforcement executed a search warrant at Hale’s warehouse and found numerous shelves with merchandise, and a “cleaning station” where there were different products for use to remove stickers, sensors, and glue.

At trial, numerous witnesses testified to their relationships with one another and with Hale. A number of these people met at flea markets, where apparently there is a vibrant trade in moving stolen goods. Who knew? One witness testified that Hale told him that he made $18,000 in a “bad month.” Apparently trafficking in stolen goods can be a very lucrative endeavor.

At the end of the government’s case, Hale made a motion for a judgment of acquittal that the district court denied. Hale’s attorney also objected to the district court’s decision to provide the jury with a willful blindness instruction. After conviction, Hale received a 97 month prison sentence.

On appeal, Hale argued that the District Court judge erred in giving the jury a willful blindness jury instruction. As the Court notes, for a jury to convict Hale of transporting stolen goods in interstate commerce, the government had to prove that Hale knew that the goods he was transporting were stolen.  See 18 U.S.C. §2314.   In order to meet this burden of proof, the government could either show that Hale actually knew the materials were stolen, or by presenting evidence that he had made himself deliberately ignorant of the fact that the goods were stolen.  It is a deeply rooted principle of law that criminal defendants cannot escape the reach of criminal statutes by shielding themselves from clear evidence of critical facts that are so strongly suggested by the circumstances.  Global-Tech Appliances, Inc. v. SEB S.A, 563 U.S.754, 766 (2011); see also United States v. Jinwright, 683 F.3d 471 (4th Cir. 2012).  The application of the willful blindness doctrine has two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists, and (2) the defendant must take deliberate actions to avoid learning of that fact.”  Global-Tech Appliances, 563 U.S. at 769.   Here, the Court found there was ample evidence to support that Hale knew there was a high probability that the goods he was buying and selling were stolen. He testified at trial that based on his prior experience he knew there was a very big risk of people selling over the counter medicine and health and beauty aids at flea markets could be first level fences who had bought the goods at deep discounts from professional shoplifters. And the Court also found that Hale took deliberate actions to avoid confirming the goods were stolen because he was careful never to ask his fence about where she was receiving her items or why so many of her goods were marked with stickers indicating that they belonged on the shelves of local stores. The Court also continued to show that Hale fully knew the goods were stolen, including evidence that he tried to disguise his suppliers’ identities.  In short, the Court found sufficient evidence existed to support the willful blindness jury instruction.

Hale also argued that the willful blindness instruction that the District Court judge gave was inaccurate, but the Fourth Circuit disagreed, finding that, considered as a whole, the jury instruction “accurately and fairly state[d] the controlling law.” United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).

Hale also raised on appeal the argument that the prosecutor engaged in misconduct by presenting a closing argument that focused on how Hale denigrated the community by feeding individuals’ addiction, and by indirectly lining the pockets of drug dealers. He argued that this blatant appeal the passions and prejudices of the jury was improper and deprived him of a fair trial. Unfortunately for Mr. Hale, he did not object to this argument at trial. For that reason, the Fourth Circuit reviewed the claim under the plain error standard. The court rejected the claim and found that in light of the strength of the government’s case, the prosecutor’s remarks did not substantially prejudice Hale’s substantial rights resulting in the deprivation of his right to a fair trial.  That’s too bad, because this argument was clearly improper.

An unfortunate conviction for Hale, but a good primer on the willful blindness jury instruction for others.


US v. Karen Kimble (4th Cir, filed 5/2/17): Search and Seizure Issue– Agents Empowered to Take Cash If Reasonable Agent Would Have Thought It Covered by the Warrant (and even when the Agents thought it related to crime beyond the scope of the warrant).

This is a really interesting search issue, in my opinion, and confirms that hard cases sometimes make for bad law. I don’t think I agree with this decision, frankly, although it’s easy to see how the Court would not be inclined to suppress the fruits of this search.

Kimble was convicted after a bench trial during which the Government proved that she committed a number of schemes involving tax and visa application fraud, and aggravated identity theft.  Here’s how the series of events unfolded:  In 2007, Kimble participated in an immigration scheme with Tamim Mamah, a native of Ghana.  Mamah earlier attempted to get a green card by way of a fraudulent marriage.  When that didn’t work, Kimble filed, under the former wife’s name, for a divorce from Mamah. Then Kimble submitted a new green card application on Mamah’s behalf, using a marriage certificate listing herself as Mamah’s wife. During that same time frame, she also committed perjury when Mamah’s brother was charged in connection with heroin distribution.  She took the stand in that trial and essentially testified to facts she claimed she witnessed while in Africa. Only, she was not in Africa during that relevant time frame.  Then, Kimble offered herself as a tax preparer. She prepared taxes, but she inflated numbers, gave her clients different returns, and pocketed the difference to the total of $222,000 of skimmed monies. Very naughty behavior.

In July 2011, the Department of Homeland Security obtained a search warrant in connection with its investigation into Kimble’s marriage and immigration fraud and perjury.  In its affidavit, it asserted probable cause to believe her home contained evidence of perjury, marriage and immigration fraud, and false statements.  An attachment to that warrant stated that the search would enable the government to seize “[a]ny and all records and documents relating to the travel of [Defendant] to Ghana in 2006 including but not limited to… documents, correspondence, notes, statements, receipts or other records that reference or indicate fraudulent activity and items evidencing the obtaining, secretly, transferring, concealment and or expenditure illegal proceeds and currency to include cash.”

The agents executed a search warrant on July 29, 2011. At the beginning of the search, the agents asked Kimbel if she had any valuables in the house. She told him that she had some cash in a laundry basket. The agents searched the basket and found $41,000. When the agents asked her about the source of the funds, she told them that the money did not belong to her and that she had received the money from a stranger about a week earlier and that she was holding it for her husband. The officers were aware that her husband had been detained on a narcotics distribution charge, and so they took the money on suspicion that it derived from illegal drug activity.

Several months later Kimbel filed a claim to recover the seized funds. This time she told the officers that the money was proceeds of an insurance claim she filed after her home was damaged in a fire. Based on her changing account of the source of the funds, investigators subpoenaed her bank records in an attempt to confirm the source of the seized funds.  Once they reviewed those records, they found the numerous deposits from the IRS which they later figured out were the inflated refunds from her tax scheme.  In other words, they discovered her tax fraud, about which, until then, they had been unaware.

Kimbel was then indicted. She motioned the Court to suppress all the evidence obtained from the search of her house. Specifically, she argued that the government exceeded the scope of the warrant when it seized money it believed was related to drugs when the warrant itself only pertained to the perjury and immigration charges. Campbell argued that because the cash was improperly seized, any evidence obtained as a result of her efforts to reclaim that money amounted to the fruit of the illegal seizure and therefore was subject to exclusion at trial.

In this appeal, the Court assessed whether the government agents exceeded the scope of the search warrant. The court reviews the district courts legal conclusions regarding the scope of the warrant de novo and a factual findings underlying the conclusions for clear error.  United States v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or  affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend. IV. The particularity requirement protects against a general, exploratory rummaging in a person’s belongings to the extent that a valid warrant leaves nothing to the discretion of the officers performing the search.  See United States v. Robinson, 275 F.3d 371 (4th Cir. 2001).

Here, Kimbel argued that the seizure of the cash violated the Fourth Amendment because the warrant permitted the agents to seize evidence relating only to her travel to Ghana, the subject of her perjured testimony. In support of this argument, she pointed to the language of Attachment B to the warrant which included the phrase “any and all records and documents relating to the travel of defendant to Ghana and 2006.”   She argued that the money, which the agents initially believed was linked to unrelated drug activity, exceeded the scope of the warrant because it could not have been related to her alleged perjury. The Court disagreed.   According to the Court, the scope of the search conducted pursuant to a warrant is defined objectively by the terms of the warrant in the oven and sought, not by the subjective motivations of an officer.  See United States v. Srivastava, 540 F.3d 277, 287 (4th Cir. 2008) (“In analyzing the constitutionality of a search warrant execution, we must conduct an objective assessment of the executing officers’ actions in light of the facts and circumstances confronting him at the time, rather than make a subjective a valuation of the officers’ actual state of mind at the time the challenged action was taken”).  In upholding the constitutionality of this search and seizure, the Court concluded that a reasonable officer could have found that the $41,000 could have constituted potential evidence of the marriage fraud, false statements, unlawful procurement of citizenship, or perjury charges.  In other words, it didn’t matter that the officers actually intended to exceed the scope of the warrant, so long as a reasonable agent would have thought these additional items were relevant to the search.  Therefore, the seizure did not exceed the scope of the warrant, and the district court correctly denied Kimbel’s motion to suppress.

The Court also addressed a sufficiency of the evidence claim relating to the tax and wire fraud charges.  The Court rejected those arguments as well.  Not a good outcome for Ms. Kimble, nor anyone else challenging the scope of a search warrant.  But here, some artwork from Nanart Agyemang, a Ghanian artist:






United States v. Fathia-Anna Davis (4th Cir. 1/5/17): Manufactured Jurisdiction Argument. Also, Don’t Try to Murder Your Husband.

So, this case raises an interesting claim in the context of a murder-for-hire scheme. Davis apparently loathed her husband.  So much so that she repeatedly tried to murder him.  Her first attempt, giving him an overdose of Ambien, did not work. The husband merely ended up in the hospital. Seeking a more certain outcome, Davis reached out to a friend of hers who worked at a car dealership that catered to the local gang members and drug dealer milieu.  This friend, instead of helping her solicit a murderer, instead went to law enforcement. Law enforcement, in conjunction with this friend set up a sting operation. This friend sent a text message to Davis, at the behest of law enforcement, informing her that he found someone for the job. This text message is the basis for Davis’s argument that her conviction and sentence should be vacated under the manufactured jurisdiction doctrine.

Under the manufactured jurisdiction doctrine, federal law enforcement officers essentially cannot use an instrumentality of interstate commerce in order to elevate what would normally be a local concern into a federal one. Davis relied primarily on United States v. Coates, 949 F.2d 104 (4th Cir. 1991) for this analysis. In that case, the court found that despite investigating Coates for a month, the government “had no evidence of his use of interstate mail or wire facilities in connection in the murder-for-hire scheme. To cure this problem, the government agent drove to Virginia for the sole purpose of making a telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to discuss the scheme.”  Id. at 105.

The Court found the reliance on Coates misplaced.  First, the manufactured jurisdiction argument does not categorically prohibit government agents from using a facility of interstate or foreign commerce to initiate contact.  Instead, it only prohibits them from doing so for the sole purpose of turning a state crime into a federal crime.  Two, in this case, the record is silent as to the officers’ intent in asking the car-dealership friend to send the initial text.  It’s quite likely it was done for convenience sake, and not as a ploy to confer federal jurisdiction over the case.  And lastly, unlike Coates, this is not a case where there was a one-time direct response to a government agent’s invitation.  Instead, the record shows that Davis voluntarily used her car and mobile phones, repeatedly, to meet and communicate with the detectives regarding the plot to murder her husband.

The Court also found that Davis’s sentence of 120 months was completely reasonable under the facts of this case. Appellate counsel made the important argument that Davis was improperly enhanced in her sentencing for facts that actually constitute elements of the offense. For example, because the offer or receipt of something of pecuniary value is an element of the offense (Section 1958), everyone convicted under that statute will receive a four-level enhancement under 2A1.5.  This argument, however, was not presented to the sentencing court, so the Fourth Circuit assessed it under plain error review.  Under that stringent standard she did not prevail. The Court notes in footnote 7 that other circuits have also rejected the 2E1.5 cross reference to 2A1.5 (specifically, the 2nd and 8th circuits).  The Court also rejected other, preserved issues regarding the substantive reasonableness of her sentence.

An interesting legal issue with some highly unsavory facts.  Ten years seems very reasonable to this completely defense-oriented-never-even-thought-about-being-a-prosecutor attorney.


United States v. Philip Swaby, 4th Circuit Court of Appeals (filed 4/24/17): Court’s “general” immigration warnings did not cure lawyer’s erroneous advice regarding consequences of guilty plea.

A very important case for lawyers representing defendants facing possible deportation as a consequence of criminal convictions.  The facts here are very similar to those SCOTUS addressed in Padilla v. Kentucky, 559 U.S. 356 (2010).  Counsel was appointed to represent a client who had lawful permanent resident status.  He was married to a citizen and has two daughters who are citizens.  He also has a step-daughter.  He and his wife were indicted for trafficking counterfeit goods.  Recognizing possible immigration consequences, counsel reached out to another attorney, one who specialized in immigration law.  Counsel sent the indictment and what he believed was the applicable statute to the immigration lawyer.  Unfortunately, he inadvertently sent the wrong statute so the immigration lawyer erroneously advised plea counsel that a plea to the crime would not be considered an aggravated felony for immigration purposes under 8 U.S.C. 1101(a)(43)(M)(i).  The plea agreement ultimately entered into by Petitioner and the Government was predicated on their understandings that Swaby would be free from deportation if he secured a sentence for less than 365 days.  The plea agreement itself contained boilerplate warnings about possible immigration consequences.  And, at the plea itself, the district court judge informed Petitioner that his guilty plea could lead to his deportation or removal from the United States.

The short of it is that the Fourth Circuit found that the general warnings by the district court judge did not mitigate the prejudice of plea counsel’s deficient performance.  In United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012), the Court also found that a district court’s general warnings of risk of deportation do not correct counsel’s deficient performance, although a “careful explanation” specifically correcting misadvice may cure any prejudice that misadvice may cause.  Id. at 253-54.

As to the prejudice prong of the Strickland inquiry, the Court notes that a defendant is prejudiced if “there is a reasonable probability that, but for counsel’s errors, [a defendant] would not have pleaded guilty and would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985).  In the context of a guilty plea, the Fourth Circuit recognizes that a defendant is prejudiced if there is a reasonable probability that the defendant would have negotiated a plea agreement that did not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89 (9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014).  Under these tests, and assessing Petitioner’s situation, the Court found that Petitioner demonstrated a reasonable likelihood that he would have negotiated for, and the government would have been amenable to, a plea agreement that had no immigration consequences.  Alternatively, Petitioner could have shown prejudice by showing a reasonable likelihood that, absent his counsel’s error, he would have gone to trial instead.  The Court reversed, vacated, and remanded Petitioner’s case for further proceedings consistent with this opinion.  It looks like Petitioner is going to be able to stay in the United States with his wife and children, a very humane result under the facts of this case.  Chief Judge Gregory, Judge Wynn and Judge Thacker on the opinion.


US v. Donald T. Hill (App. No. 15-4639) (4th Cir., filed 3/30/17): Prolonged Detention of Car Stop; Important Dissent by Judge Davis.

This is an interesting case addressing law enforcement’s prolonging a roadside detention. The short of it is that law enforcement is not particularly obligated to be efficient during a stop as it conducts its duties. Here, law enforcement was patrolling a neighborhood in Richmond, Virginia. They saw a car that slightly exceeded the posted speed limit, and then that car crossed a solid yellow line. They decided to pull the car over.  Time:  6:01. The driver of the car (not Hill) immediately stepped out of the car, but got back in when the officers told him to. One of the officers recognized this guy as someone who hangs out with people connected to robberies. He also recognized Hill, who was the passenger, as someone who had been the victim of a stabbing incident.

Hill was unable to produce identification.  The officer then entered the names of both guys into the National Crime Information Center (NCIC) database. About three minutes passed and the database returned an “alert” notifying the officer that both men had been associated with drug trafficking and were “likely armed.” The officer also realized that the driver had a suspended license. Time:  6:04.  The officer started writing summons for the driver– for reckless driving and suspended license. He also called for a K-9 unit.

The officer then stopped writing the summonses so he could check an additional database, PISTOL (“Police Information System Totally On Line”) which tracks every person who has prior contacts with Richmond police officers.  At the hearing, the officer testified this can be a lengthy process because PISTOL produces a list of all people who have the same name.  In this case, PISTOL produced a list of 8-9 people with the same name as the driver. The officer spent 3-5 minutes reviewing that list. While this officer was checking out PISTOL, the other cop was making small talk (yeah, right) with the driver and Hill.  This officer asked them three times whether they had drugs or firearms in the car.  After the third ask, Hill told him that he had a gun on him. The officer immediately yelled, “gun!” and the other officer assisted in securing Hill and taking his gun. As this was going on, the K-9 unit arrived.  The court found that approximately 20 minutes elapsed between the time of the stop and the moment that the officer yelled “gun!”.

Hill argued on appeal that the officers unlawfully extended the duration and scope of the traffic stop in violation of Hill’s Fourth Amendment rights. Specifically, he challenged one officer’s decision to talk with him and the driver instead of assisting the other officer searching the databases and writing the summonses. He also challenged the decision to request the K-9 unit and to search the PISTOL database.

Hill did not challenge the initial basis for the stop so the Court focused on the question of whether the “manner of execution [of the stop] unreasonably infringe[d]” on Hill’s rights under the Fourth Amendment.  Illinois v. Caballes, 543 U.S. 405, 407 (2005).  If a traffic stop is extended in time beyond the period that the officers are completing tasks related to the traffic infractions, the officers must either obtain consent from the individuals detained or identify reasonable suspicion of criminal activity to support the extension of the stop.  United States v. Williams, 808 F.3d 238, 245-46 (4th Cir. 2015).  The United States Supreme Court has recently clarified that extending a stop, even a de minimis length of time violates the Fourth Amendment. Rodriguez v. United States, 135 S. Ct. 1609 (2015).   In assessing the reasonableness of a stop, the Court will consider “what the police in fact do,” and whether the officers acted reasonably under the totality of the circumstances.  Rodriguez at 1616.

Here’s what cops get to do:

  • An officer may engage in certain safety measures during a traffic stop, but generally must focus on the initial basis for the stop.  United States v. Palmer, 820 F.3d 640, 649 (4th Cir. 2016).  An officer may engage in “ordinary inquiries incident to” the traffic stop, such as inspecting the driver’s license and license to operate the vehicle, has insurance, and whether driver has outstanding warrants.
  • Officers may also engage in other investigative techniques unrelated to the traffic infraction or the safety of the officers, but only so long as that activity does not prolong the roadside detention for the traffic infraction.

The Court quickly found that the officers’ actions in this case did not improperly prolong the detention, but also found that this case does not present a case of officers being intentionally dilatory in their duties.  The Court offers a very important final paragraph:

In sum, the Supreme Court’s decision in Rodriguez does not require courts to second-guess the logistical choices and actions of a police officer that, individually and collectively, were completed diligently within the confines of a lawful traffic stop.  We emphasize, however, that we are not confronted here with an officer’s decision to execute a traffic stop in a deliberately slow or inefficient manner, in order to expand a criminal investigation within the temporal confines of the stop without reasonable suspicion of criminal activity or consent of those detained.  In such a case, an officer’s actions delaying the completion of the stop may compel a different conclusion than the one we reach here.  In the present case, however, we hold that because the evidence shows that the officers acted with reasonable diligence in executing the tasks incident to the traffic stop, and the stop was not impermissibly expanded in scope or time beyond the pursuit of the stop’s mission, the district court did not err in denying Hill’s motion to suppress.

Judge Davis authored an important dissent, noting that Hill was not the driver of this car, he was merely the passenger.  Davis finds the purpose of this stop to be “well known to all of us”– this was a narcotics and firearms investigation, undertaken in the absence of reasonable suspicion that a narcotics or firearms violations were occurring.  As Judge Davis notes:  “the ill-fated “War on Drugs” has a sometimes overlooked and unmentioned casualty:  the Fourth Amendment.”  Davis would have reversed the denial of the motion to suppress pursuant to Rodriguez.


United States v. Juan Elias Lara (4th Cir, 3/14/17): Psychotherapist-Patient Priv and 5th Amendment Protections in Interviews with Supervision Agents

This case raises an important issue– the extent to which statements made to a supervisory government agent (like a probation agent, or as in this case, a sex offender treatment program provider) can remain confidential.  Not good news for the more criminal-defense minded among us.

Lara was convicted in Virginia state court for a sex assault.  He was sentenced to 20 years, with 17 years suspended and a term of 20 years of probation (!).  As a term of his supervised probation, he was ordered to attend and successfully complete a Sex Offender Treatment Program and to permit the program to have “unrestricted communication with the probation and parole department” and to “submit to any polygraph.”  Lara signed the form listing these conditions.  He was then released and referred to a sex offender treatment program.  There, he was interviewed by a licensed clinical social worker.  During that interview, he disclosed other sexual assaults he had committed and his involvement in two murders (!!).  He confirmed all this by way of a polygraph he took a few weeks later.  Three months after that, he signed a form called “Sex Offender Program Acknowledgment of Confidentiality Waiver” acknowledging that whatever Lara tells a therapist or group leader is not privileged.  Lara completed his probation without incident . . . until . . .

He moved from Virginia to Texas and failed to notify his probation agent, nor did he register with the Sex Offender and Crimes Against Minors Registry maintained by Virginia.  He was ultimately indicted for violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250.

Lara pleaded guilty and filed a motion to exclude from consideration at sentencing the admissions of other criminal activity he told the clinical social worker.  The district court denied his motion.

Lara raised two claims for the court’s consideration.  First, he argued that the district court erred in concluding that he knowingly and voluntarily waived the psychotherapist-patient privilege because he was “compelled to participate” in the treatment program.  He also argued that the district court’s using of the statements he made to the social worker violated his 5th amendment privilege against self-incrimination.

As for the psychotherapist-patient claim, the Court found that Lara’s waiver was knowing and voluntary.

Probation is “one point…on a continuum of possible punishments” imposed on those convicted of a crime.  Samson v. California, 547 U.S. 843, 848 (2006) (quoting United States v. Knights, 534 U.S. 112, 119 (2001).  Therefore, courts administering probation “may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”  Knight, 534 U.S. at 119.  Essentially the Court found that Lara could have decided just to stay incarcerated if he didn’t like the terms and conditions of probation, so his acquiescence was “voluntary.”  See McKune v. Lile, 536 U.S. 24, 50 (2002) (opinion of O’Connor, J.) (concluding that the defendant had a voluntary choice, and was not compelled to incriminate himself, when required to participate in a sex offender treatment program to avoid transfer from a medium-security to a maximum-security area of a prison).

As for the 5th Amendment claim, the Court was not persuaded by that argument either.  Lara didn’t invoke his 5th Amendment right at the time he gave his statements, and the Court did not find that his conditions of probation fell within the narrow “penalty” exception to the rule:

To invoke the Fifth Amendment privilege against self-incrimination, a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.”  Minnesota v. Murphy, 465 U.S. 420, 429 (1984).  One exception to this general rule occurs in “penalty” cases, in which assertion of the privilege results in a penalty that essentially “foreclose[s] a free choice to remain silent.”  Id. at 434 (internal brackets omitted).  As the Supreme Court has explained, in order for conditions of probation to provide a sufficient “penalty” to overcome a defendant’s free choice to remain silent, the threat of revocation must be nearly certain.  In this case, Lara was never threatened with the imposition of a penalty sufficient to overcome his freedom of choice to remain silent.  For this reason, no Fifth Amendment violation.

So, an important case for those clients who have given statements in connection with probation or supervised release.  Those statements are not going to held privileged should your client find himself in trouble in the future.




US v. Kofi Agyekum, No. 15-4479 (4th Cir, filed 1/24/17), Disagreement on Enhancement Based on Abuse of Position of Trust

Mr. Agyekum found himself in a whole bunch of trouble due to his criminal plan to illegally sell oxycodone pills out of his pharmacy in West Virginia.  In addition to simply illegally filling fraudulent prescriptions, he also fudged his bank deposits to hide this activity (by making a number of deposits at a level below $10,000 which triggers certain federal notice provisions).  Much of this opinion details the specifics of Agyekum’s conduct, and– frankly– his rather amateurish attempts to hide his ill-gotten profits.  What’s most interesting here is the sentencing discussion.

Agyekum argued on appeal that the district court erred in calculating his sentenced based on two enhancements– 1) leadership role (USSG 3B1.1(c)) and 2) abuse of a position of trust (USSG 3B1.3).

The overarching design of the Guidelines is aimed at sentencing defendants in substantial part for “the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted.”  USSG 1A1.4(a).  “Thus, despite the limited scope of conduct for which the defendant was convicted, he may nonetheless be sentenced more broadly for relevant conduct.”  United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014).  USSG 1B1.3 defines relevant conduct to include “all acts and omissions committed . . .by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”  USSG 1B1.3(a)(1)(A).  The Court held “when defining “relevant conduct,” the term “during” conveys a linkage that is more than a mere temporal overlap; it also conveys a qualitative overlap such that the conduct must be related or connected to the crime of conviction.  See United States v. Wernick, 691 F.3d 108, 115 (2nd Cir. 2012) (holding that “[o]ne criminal act does not become ‘relevant’ to a second act under 1B1.3(a)(1)(A) by the bare fact of temporal overlap” and that there must also be “proof of a connection between the acts”).

Long legal analysis short, the Court found that, even though Agekum only pleaded guilty to the money structuring violations, his illegal drug distribution plan was still “relevant conduct.”

As to the enhancements:

Leadership:  The Court agreed with the district court that Agyekum had a leadership role based on these factors:  1) that the pharmacy would fill out-of-state prescriptions, 2) that the pharmacy would only accept cash for filling oxycodone prescriptions, 3) that the pharmacy charged different prices depending on the risk involved in the transaction; and 4) that those seeking to fill suspicious oxycodone prescriptions were also required to submit prescriptions for non-controlled substances.  Also, he handed all the money, and controlled the bank accounts.  Dude ran the business.

Trust:   According to the majority opinion, Agyekum qualified for this enhancement due to his clear abuse of his positions of trust with his drug distributors (by not purchasing drugs to serve legitimate purposes) and the West Virginia Board of Pharmacy (by altering computer records to avoid proper reporting).

Judge Wynn, while agreeing with most of this, disagreed with the district court’s enhancement based on his abuse of a position of trust (and his colleagues’ adoption of it).  He argues that a defendant’s abuse of trust must be effected “in a manner that significantly facilitated the commission of the offense.”  USSG 3B1.3.  Also, “[w]hether a defendant held a position of trust must be assessed from the perspective of the victim,” United States v. Abdelshafi, 592 F.3d 602, 611 (4th Cir.), cert denied, 562 U.S. 874 (2010, and “[t]here must be a trust relationship between [the defendant] and his victim for the enhancement to apply,” United States v. Moore, 29 F.3d 175, 180 (4th Cir. 1994).   Judge Wynn argues that the majority fails to establish that a trust relationship existed between Appellant and either the Board of Pharmacy or the distributor.  Appellant was, in fact, a pharmacy intern since he flunked his pharmacy boards.  The pertinent West Virginia statute deprived him of managerial discretion since he was not actually a pharmacist (his wife is a licensed pharmacist).  Therefore, the trust relationship existed between the Pharmacy Board and Agyekum’s wife.  But also, there was not a trust relationship between Agyekum and his distributors since “an ordinary commercial relationship between the perpetrator and victim is insufficient to support the abuse of trust enhancement.”  United States v. Akinkoye, 185 F.3d 192, 204 (4th Cir. 1999).

An interesting disagreement on the nature of “abuse of trust” for purposes of sentencing enhancements under the Federal Sentencing Guidelines.


Cruz v. Marshall, App. No. 15-6130 (filed 12/19/16), Unpublished 4th Circuit HABEAS REMAND

Excellent work by the Appellate Litigation Project, Georgetown University Law Center!  Cruz, a habeas petitioner, filed a petition alleging 5 grounds of relief.  The State moved to dismiss the petition as untimely.  The magistrate court recommended granting the State’s motion.  Cruz then filed objections to the Report and Recommendation (R&R), and the district court summarily rejected those objections, adopted the recommendation, and dismissed the petition as untimely.  The Fourth Circuit granted Certificates of Appealability (COA’s) on the issues of whether the petition timely asserted a Brady violation and an ineffective assistance of counsel (IAC) claim.  The Fourth Circuit held that:

Because the district court failed to properly consider the Petitioner’s objections to the R&R and provide an adequate rationale for its decision, the Court vacated the district court’s decision and remanded for further proceedings.

Essentially, this pro se petitioner filed his habeas petition but failed to include the dates of when he found out important facts that bared on whether his petition was timely or not.  The State motioned that it be dismissed as untimely.  The R&R found the claims were untimely because he failed to plead sufficient facts to toll the statute of limitations (if you uncover new facts about your case, you may be able to toll the statute of limitations).  The R&R found the omissions of these dates to be a “fatal flaw” and dismissed the petition.  In his objections, Cruz then FILLED IN THESE DATES.  But DESPITE THAT, the district court still adopted the R&R and declined to issue a certificate of appealability.  And the Fourth Circuit also said this (this is called a “benchslap!”):

“Furthermore, the district court’s laconic order failed to provide any insight as to why the district court was rejecting Petitioner’s objections.”

The Court then explained what the district courts need to do going forward:

When a party raises new information in objections to an R&R, regardless of whether it is new evidence or a new argument, the district court must do more than simply agree with the magistrate.  It must provide independent reasoning tailored to the objection . . . The district court does not need to provide an elaborate or lengthy explanation, but it must provide a specific rationale that permits meaningful appellate review…Because such a reasoned basis is necessary to make appellate review meaningful, we vacate the district court order … (internal citations omitted).

The district court’s order, which stated it “had appropriately reviewed the portions of the Magistrate Judge’s Report to which objection was made and has made a de novo determination in accord with the Magistrate Judge’s report” was not good enough.

An excellent opinion for habeas practitioners.  It shows that the Fourth Circuit takes inmates’ rights seriously, even when they are representing themselves pro se.


Appealing a sentence when there is a plea agreement in place, United States v. David Williams III, No. 14-4680 (filed January 28, 2016)

This case was consolidated with Mr. William’s co-defendant, Ms. Kristin Williams, and the issue here really only pertains to her sentence.   Ms. William’s appellate counsel filed Anders briefs in their cases (which, by its nature informs the court that counsel does not believe the raised issue has merit), and questioned whether Ms. Williams’s sentence was reasonable.

The court takes this opportunity to remind the bench and bar that not all sentences are subject to appellate review.  The court of appeals may only review a defendant’s sentence if 1) it “was imposed in violation of law,” (2) it “was imposed as a result of an incorrect application of the sentencing guidelines,” (3) it “is greater than the sentence specified in the applicable guideline rant,” or (4) it “was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.”   18 U.S.C. §3742(a).  But additionally, a defendant sentenced pursuant to a plea agreement “may not file a notice of appeal . . . unless the sentence imposed is greater than the sentence set forth in the agreement.  Id. §3742(c).   The court clarifies, in this opinion, that a sentence imposed pursuant to a plea agreement may be reviewed, but only where that agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment.  So, in other words, a defendant may appeal a plea agreement if some stipulated plea sentences expressly rely on the Guidelines to calculate the agreed-upon sentence (and the application of the Guidelines was incorrect).  Since Ms. Williams’s sentence did not expressly rely on the Guidelines, the Court did not have jurisdiction to review the sentence’s reasonableness.  Short and sweet, and something that federal practitioners should keep in mind when crafting plea agreements for their clients.frog-927764_960_720