Appellate Update — January edition

Wednesday, February 13, 2013

PUBLISHED

United States v. Bumpers (Jan. 16, 2013) – The defendant in this case was stopped and ultimately frisked outside of a convenience store in a “high-crime” area. The frisk produced a gun, and the defendant was convicted of a felon-in-possession charge under § 922(g).

On appeal, the panel majority (per Judge Wilkinson, joined by Judge Floyd) found that the stop was constitutional because the officer had reasonable, articulable suspicion that the defendant and a companion were trespassing on the store’s property. In support, the majority pointed to the following factors: (1) the store was in a “high-crime” area; (2) there was a history of trespassing violations on the property, which had previously led the store owner to file a formal request with the police to “enforce criminal violations” on the premises; (3) the men were standing near two dumpsters at the back of the store, away from the entrance and in an area with a posted “no trespassing” sign; (4) the men acted “evasively” because, upon seeing the patrol car, they walked away “at a fast pace”; and (5) in walking away, the men passed by the front of the store without entering, an action the majority interpreted as consistent with being trespassers as opposed to legitimate store customers. (As a practice pointer, it’s worth noting that the Government apparently refused to enter into a conditional plea in this case, so the defendant preserved the issue for appeal by proceeding to a bench trial at which he stipulated to the elements of the crime.)

Judge Diaz dissented. He concluded that the officer had nothing more than a “hunch” or “inchoate suspicion” that the men were trespassers and not lawful customers. He emphasized that the officer had observed the men in the parking lot of an open convenience store for a matter of seconds before the men walked away as the officer approached. These facts, he concluded, were not “sufficient to separate a large number of innocent travelers from [the Fourth Amendment] intrusion” of a Terry stop.

Judge Diaz went on to criticize two particular aspects of the majority’s reasoning. First, he chided the majority for effectively deferring to the district court’s legal conclusion, not just its factual findings. Second, he contended that the majority improperly placed weight on the socioeconomic needs of the community, as evidenced by Judge Wilkinson’s repeated assertions that rigorous law enforcement is necessary for businesses in crime-ridden neighborhoods to remain open. By adopting this rationale, Judge Diaz argued, the majority was effectively—and without precedent—creating a Fourth Amendment “lite” that applies to individuals in distressed neighborhoods.

United States v. Jackson (Jan. 18, 2013) – This appeal presented a legal question regarding the scope of the forfeiture-by-wrongdoing exception to the Crawford confrontation right. The defendant argued that the exception applied only where the criminal defendant’s sole motivation in rendering a witness unavailable (e.g. by murdering him) was to ensure the witness’s unavailability to testify. In this case, that test was not satisfied because the defendant killed the witness only in part to ensure his availability; the murder also served other purposes—to prevent the witness from harming the defendant’s drug enterprise and to extract revenge for the witness’s theft of drugs from one of the defendant’s associates. The Fourth Circuit rejected the defendant’s argument. It held the forfeiture-by-wrongdoing exception applied so long as a “substantial” purpose of the murder was to render the witness unavailable to testify.

United States v. Allmendinger(Jan. 23, 2013) – This case arose from an insurance fraud scheme that caused more than $100 million of investor losses. The defendant was convicted on various mail-fraud, money-laundering, and securities-fraud counts and sentenced to 540 months in prison. His primary argument on appeal was that the district court violating his Fifth Amendment rights by altering the indictment for submission to the jury to omit allegations that the Government had not proven during trial. The Fourth Circuit disagreed, holding that the district court’s actions—altering the indictment to reflect that the Government’s evidence tended to prove a narrower conspiracy than alleged in the indictment—created, at worst, “a non-fatal variance” because the changes narrowed, rather than expanded, the grounds upon which the defendant could be found guilty. The Fourth Circuit also held that the district court committed no procedural error at sentencing and that the 540-month sentence was substantively reasonable.

United States v. Abramski (Jan. 23, 2013) – The defendant in this case was a former Virginia police officer who purchased a Glock 19 handgun for his uncle (using money sent by his uncle). The defendant’s uncle was a law-abiding citizen who could have purchased the gun for himself, but not at the discounted rate available to former law enforcement officers like the defendant.
Generally this would not be a problem. But, in filling out the ATF forms to consummate the purchase, the defendant falsely stated that he was the “actual buyer” of the gun. Odds are no one would have noticed (or cared about) this falsehood, but not long after the purchase the defendant found himself under investigation for robbing a local Virginia bank. Although he was never tried or convicted for that robbery, the authorities came across the gun receipt and discovered the false statement. And voila: federal charges under 18 U.S.C. § 922(a)(6) and § 924(a)(1)(A).

On appeal, the defendant’s most substantial argument was that the falsity was not “material” to the lawfulness of the sale, as required under § 922(a)(6), because his uncle could have legally purchased the gun. The Fourth Circuit recognized that this issue splits the circuits—the Fifth Circuit agrees with the defendant, but the Sixth and Eleventh Circuits do not. The Fourth Circuit joined the latter two and held that the identity of the “actual buyer” is a material fact regardless of whether that person is legally eligible to make the purchase on his (or her) own. In addition, the Fourth Circuit affirmed the district court’s denial of the defendant’s motion to suppress.

In re Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d) (Jan. 25, 2013) – This appeal arose from the well-publicized investigation into Pfc. Bradley Manning’s alleged involvement in leaking classified documents to WikiLeaks.org. As part of its investigation, the Government sought and obtained a court order under 18 U.S.C. § 2703(d) directing Twitter to disclose the electronic communications records of certain subscribers. When those subscribers later became aware of the order (after the Government moved to unseal it), they asked the district court to unseal the Government’s application for the order and to unseal (and publicly docket) any other § 2703(d) orders related to the investigation. The district court refused, and the Fourth Circuit affirmed. It held that the subscribers had no First Amendment right to access the information and that any common law right of access was outweighed in this case by the Government’s interest in maintaining the secrecy of the investigation.

UNPUBLISHED

United States v. Ramirez-Morazan (Jan. 8, 2013) – In this illegal reentry case, the defendant asked the district court to vary or depart downward to prevent the sentencing disparity that arises between districts that have fast-track programs and those that do not. The district court refused. On appeal, the defendant argued that the district court committed procedural error by failing to recognize its discretion to vary or depart downward on this basis. There’s a strong argument under Kimbrough that such a downward variance or departure is permissible, but the Fourth Circuit did not reach that question. Instead, it held that the district court in this case did not, as the defendant suggested, conclude that it “lacked authority” to impose a lesser sentence. According to the Fourth Circuit, the record established that the district court recognized its discretion but simply chose not to exercise it here.

United States v. Hickson et al. (Jan. 24, 2013) – In this case, three mid-level participants in a $78 million Ponzi scheme were tried and convicted on wire-fraud and money-laundering charges. On appeal, the Fourth Circuit first held that the evidence introduced at trial was sufficient to justify the district court’s inclusion of a “willful blindness” jury instruction. In addition, the Court held that the district court did not abuse its discretion by denying defendant Hickson’s motion for substitute counsel or by permitting him to proceed pro se after that motion was denied. Finally, the Court rejected an argument from the other two co-defendants that the district court should have granted their motion to sever in light of Hickson’s decision to represent himself at trial.

United States v. Hall (Jan. 24, 2013) – This case involved a drug kingpin from Baltimore (nicknamed “King Kong”) who was convicted of murdering an FBI informant who snitched on him. On appeal, the Fourth Circuit held (1) that the district court did not abuse its discretion in empaneling an anonymous jury; (2) that the court likewise did not abuse its discretion in ordering that any notes taken during the jury selection could not be removed from the courtroom; and (3) that the defendant was not prejudiced by the fact that only one of his two court-appointed attorneys was present during sentencing.