Fourth Circuit update (January 14 2013)

Tuesday, January 14, 2014

The Fourth Circuit update is divided the cases into three categories for your browsing pleasure: The Good, The Bad, and The Unpublished.

The Good (for Criminal Defendants)

  • United States v. Torres-Miguel (D. S.C. Dec. 13, 2012) – In this case, the Fourth Circuit reversed the district court’s conclusion that a California conviction for a “criminal threat” qualified as a crime of violence under the illegal re-entry Guideline (U.S.S.G. 2L1.2). The California criminal-threat statute prohibits “willfully threatening to commit a crime that would result in death or great bodily injury.” The circuits are split on whether the statute categorically qualifies as a crime of violence under 2L1.2’s residual clause (which captures offenses with an element requiring the use or threatened use of physical force): the Ninth Circuit says yes; the Fifth Circuit, no. In concluding that the Fifth Circuit was right, the Fourth Circuit reasoned that offenses requiring physical injury to the victim do not necessarily require the offender to use physical force to cause that injury — for example, threatening to poison someone would satisfy the elements of the California statute, but would not require the offender to use (or threaten to use) physical force.
  • This decision is significant in that it could have fairly broad application to results-oriented criminal offenses (i.e. those prohibiting causing bodily injury or other harms), if the offenses are not defined in a way that requires the use of physical force by the offender. This means that an offense may not qualify as a crime of violence even if the particular defendant committed the crime in a manner that did in fact involve the use of physical force. That’s because, as the court observed, the modified categorical approach can be used under United States v. Gomez, 690 F.3d 194 (4th Cir. 2012), only if the statute itself “contains divisible categories of proscribed conduct, at least one of which constitutes–by its elements–a violent felony.” An offense that simply prohibits “causing serious bodily injury or death,” for example, would not be susceptible to the modified categorical approach under Gomez. Notably, the Supreme Court is (indirectly) reviewing the validity of Gomez in United States v. Descamps (oral argument held Jan. 7, 2013).

  • United States v. Hilton (W.D. N.C. Dec. 13, 2012) – This case arose from a scheme through which the three defendants (Jimmy Hilton, his wife Tamatha, and his ex-wife Jacqueline) stole 168 checks totaling $655,000 from Tamatha’s employer, The Woodsmiths Company. They were ultimately convicted of 43 counts under a variety of fraud-related statutes. Two of the three defendants (Jimmy and Jacqueline) won a partial victory in the Fourth Circuit, which vacated their convictions for identity theft, 18 USC 1028(a)(7), and aggravated identify theft, 18 USC 1028A. The Court concluded that those statutes were “fatally ambiguous” as to whether they prohibit stealing the identity of a corporation (as opposed to a natural person). As a result, the Court vacated those convictions and remanded for resentencing.
    The Court rejected the remainder of the defendants’ claims: (1) it affirmed the district court’s denial of Tamatha’s post-arrest statements; (2) it held that the district court acted properly in denying Jimmy’s last-minute request to represent himself during jury selection (he was permitted to represent himself at trial); and (3) it found that sufficient evidence supported the other counts of conviction.
  • The Bad (for Criminal Defendants)

  • United States v. Ayesh (E.D. Va. Dec. 18, 2012) – The defendant in this case was a Jordanian national who worked for the State Department as a customs and shipping supervisor at the U.S. Embassy in Baghdad. Based on a scheme through which he diverted U.S. government funds to his wife’s bank account, he was convicted of two counts of theft of public money (18 U.S.C. 641) and one count of acts affecting a personal financial interest (18 U.S.C. 208(a)). The Fourth Circuit affirmed his convictions in an opinion written by District Judge Cogburn. The court held: (1) that Congress intended the statutes of conviction to apply extraterritorially, (2) that the defendant’s confession was voluntary under the Due Process Clause, and (3) that sufficient evidence supported his conviction.
  • United States v. Tillery (E.D. Va. Dec. 19, 2012) – This case arose from the robbery of a dry cleaners in Petersburg, Va., for which the defendant was ultimately convicted of a Hobbs Act robbery (18 U.S.C. 1951(a)) and a firearm-brandishing charge under 924(c). On appeal he argued that the Government could not satisfy the jurisdictional element of the Hobbs Act count because he stole less than $100, meaning (in his view) that the robbery did not have even a “minimal effect” on interstate commerce. The Fourth Circuit disagreed, holding that the “minimal effect” standard turns solely on “whether an inherently economic enterprise is depleted of its assets, not [on] the amount of assets depleted.” In addition, the Court rejected challenges to the jury instructions and the sufficiency of the evidence. Finally, the Court held that Virginia’s eluding-police statute is a crime of violence under the Guidelines career-offender provision, as recently decided by United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012).
  • United States v. Hamilton (E.D. Va. Dec. 13, 2012) – This case involved a Virginia legislator convicted of federal program bribery for trading his legislative help in securing state funding for a leadership center at Old Dominion University for a paid position as the director of that leadership center. The primary question on appeal was whether e-mails the defendant sent to his wife from his work account (while employed part-time as a local school board administrator) were protected by the marital communications privilege. The Court held that the privilege did not apply, but its reason for doing so was somewhat narrow: it relied on the district court’s factual finding that the defendant had failed to take any steps to protect the privacy of the e-mails in question after being put on notice that his employer retained the right to inspect all of his archived e-mails. The Court also rejected challenges to the jury instructions and the sufficiency of the evidence.
  • United States v. Smith (D. Md. Dec. 17, 2012) – In this case, the Fourth Circuit affirmed a conviction under 18 USC 1112(a) for involuntary manslaughter during the commission of a non-felonious unlawful act (DUI) on the Baltimore-Washington Parkway. On appeal, the defendant argued that the Government’s expert witness had testified beyond the scope of the Rule 16 notice by opining on alcohol metabolization rates. The Court held that any such error was harmless because the defendant neither called a rebuttal expert to contradict the testimony, nor sought a continuance to consider doing so. The Court also held that a blood test several hours after the accident, at least when combined with other factors present in the case, was sufficient to prove that the defendant’s blood-alcohol level exceeded the permissible level at the time of the accident. And, finally, the Court rejected the defendant’s challenge to the district court’s refusal to give a proffered jury instruction.
  • The Unpublished (after Oral Argument)

  • United States v. Blakeney(E.D. N.C. Dec. 13, 2012) – After pleading guilty to manufacturing counterfeit bills, the defendant faced a Guidelines range of 37 to 46 months. Based on the defendant’s extensive criminal history — 28 convictions, including 16 not scored in his criminal history calculation — the Government sought an upward departure to 60 months. The district court went even further, imposing a sentence of 120 months. In a per curiam opinion, the Fourth Circuit affirmed the substantive and procedural reasonableness of the sentence. Judge Gregory concurred in the result, but wrote separately “to lament on how formalistic and hollow our review of district court sentencing has become.” He argued that the Court’s “review must be given teeth to ensure that the discretion of district court judges — which is not absolute — remains subject to meaningful appellate review.”