U.S. v. Bell, Fourth Circuit Court of Appeals, Filed August 28, 2018: Miranda, 404(b), CIs, and Mandatory Minimums
In U.S. v. Bell, the Fourth Circuit affirmed a 40-year mandatory minimum sentence for possession with intent to distribute heroin and firearms possession, rejecting Bell’s appeal that was based on:
- A statement that he alleged was taken in violation of Miranda;
- The admission of evidence that he was arrested in another jurisdiction, although he was not prosecuted following that arrest;
- The government’s refusal to disclose the identity of the confidential informant (CI); and
- Sentencing enhancements based on prior convictions that resulted in a 40-year mandatory minimum sentence.
Below, I’ll take a look at each of the appellate issues and why the Fourth Circuit denied them. But first, what else was going on “behind the scenes” in this case?
Why Was Bell Released After the First Search?
I suspect there was more going on in this case than the Fourth Circuit’s opinion reveals – for example, in April of 2014, Bell’s residence in Maryland was searched pursuant to a search warrant based on a tip from a confidential informant (CI). Agents found 112 grams of heroin, paraphernalia for distribution of heroin, and over $10,000 in cash.
Then, the agents left without arresting Bell:
“Upon completion of the search, the task force released Bell from custody, pursuant to the “request of another [law enforcement] agency.”
Four months later, in August of 2014, Bell was arrested in Washington, D.C., with marijuana, crack cocaine, heroin, and $1000 in cash, but he was not prosecuted for those offenses.
Five days after the D.C. arrest, federal agents executed another search warrant on his home in Maryland, finding more heroin, crack cocaine, cash, and paraphernalia – the paraphernalia included baggies marked with green dollar signs and blue devil faces that matched the baggies found in the D.C. arrest.
In November of 2014, he was indicted in federal court on drug trafficking and firearms charges.
Why would federal agents release him and not charge him after finding more than 100 grams of heroin in his house during the execution of the first search warrant? “At the request of another agency?”
We don’t know based on the facts in the opinion, but was he working as a CI for another law enforcement agency and that is why they requested that he be released? But, really? If a CI is found in possession of more than a hundred grams of heroin, should the agency they work for intervene and prevent his arrest?
What was really going on?
Why the Fourth Circuit Affirmed the Convictions
Whatever the back-story was with Bell’s release after the first search warrant, it did not affect his appeal and it was not addressed by the Fourth Circuit. They did, however, consider multiple appellate issues that are worth taking a look at:
Miranda v. Arizona prohibits the questioning of a suspect, if they are in custody, unless the officer first informs them that they have the “right to remain silent, that any statement he [makes] may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).
The most common challenges to a statement taken in violation of Miranda involve:
- Whether the person was “in custody;”
- Whether they made the statements in response to interrogation; and
- Whether the Miranda rights were fully communicated to the person prior to questioning.
According to the Fourth Circuit, it was undisputed that the agents asked Bell’s wife whether there were any weapons in the house and that Bell then interjected and told the agents where the weapons were…
Although Bell and his wife were “in custody” – they were handcuffed and surrounded by police officers – Bell’s statements were made in response to a question that was not directed to him – it was directed to his wife only.
404(b) Evidence of Bell’s Washington D.C. Arrest
Although Bell was never charged following his arrest in Washington, D.C., the Court allowed the prosecution to tell the jury about that arrest – was that admissible?
Under federal rule of evidence 404(b), “prior bad acts” are never admissible to show a defendant’s “propensity to commit crimes,” but they can be admissible if they are relevant, tend to prove the offense he is charged with, and if they are not “more prejudicial than probative.”
“Prejudicial” doesn’t mean “hurts the defendant’s case.” Prejudicial evidence is evidence that would tend to make the jurors convict a defendant for an improper reason – “highly probative [evidence] invariably will be prejudicial to the defense.”
The Fourth Circuit found that the D.C. arrest was more probative than prejudicial because:
- It connected the baggies of heroin and marijuana in the car in D.C., with the ones that were found at his home – with the same markings of a green dollar sign and a blue devil;
- It tended to show that he possessed the firearm in furtherance of drug-trafficking activity;
- His character was not in issue; and
- The evidence showed motive and intent, which is admissible under 404(b).
When Does the Government Have to Disclose the Identity of a CI?
Bell argued that the government was required to disclose the identity of the CI who was behind the search warrants on his residence, because:
- He claimed the heroin belonged to another individual who had been living in his basement;
- That person was now dead; and
- The informant was the only person he could cross-examine to establish that the informant had mistakenly identified Bell instead of the former roommate.
The Fourth Circuit disagreed, finding that the government did not have to disclose the CI’s identity because the CI was a “mere tipster” and not an “active participant” in the arrest or drug deals. Roviaro v. United States, 353 U.S. 53, 59 (1957).
Because there was evidence (the D.C. arrest) that connected Bell, and not his former roommate, to the drugs, the Fourth Circuit followed the “well settled principle that the government is permitted to withhold the identity of a confidential informant when ‘the informant was used only for the limited purpose of obtaining a search warrant.’”
Armed Career Criminal Act and 924(c) Enhancements
Bell argued that his prior convictions, which included two armed robbery convictions in Maryland, should have been determined by the jury because resulted in a greater sentence.
The Fourth Circuit denied this claim, because Almendarez-Torres v. United States, 523 U.S. 224 (1998) provides for an exception to the Sixth Amendment requirement that a jury determine facts that affect sentencing – permitting the Court to determine prior convictions, even when it increases the maximum or minimum penalty.
The Court also found that Bell’s prior robbery convictions in Maryland qualified as violent felonies under the Armed Career Criminal Act (ACCA) – although Maryland has two robbery statutes, the statute under which he had been convicted required a robbery or attempted robbery “with a dangerous or deadly weapon.”
As a result, he was subject to two mandatory minimum sentences:
- A 15-year mandatory minimum as an armed career criminal; and
- A consecutive 25-year mandatory minimum because he was convicted of a Section 924(c) firearm offense and had a previous conviction under Section 924(c).
Because the 924(c) enhancement was consecutive, Bell was sentenced to the minimum sentence of 15+ 25 = 40 years in prison.