U.S. v. Benjamin Cornelius Blue (No. 16-4537)

Defendant-Appellant Benjamin Cornelius Blue appeals his 272-month sentence, which the district court imposed after Blue pled guilty to armed bank robbery and brandishing a firearm during a crime of violence. On appeal, Blue argues that his sentence is unreasonable because the district court failed to address his non-frivolous arguments in favor of a downward departure from the sentencing range. The Fourth Circuit agrees, reversing Blue’s sentence and remanding to the district court for resentencing.

The PSR calculated Blue’s guideline range to be 272 to 319 months. At sentencing, the district court adopted the PSR as written. Blue requested that the court impose a sentence of 92 to 115 months’ imprisonment on Count 1, to be followed by the mandatory 84-month consecutive sentence on Count 2. In support of his request, Blue raised several arguments: (1) he was influenced by his older brothers, who pressured him to commit the previous robbery offenses; (2) he committed the instant offense to support his opiate addiction; (3) he had successfully found employment and was a hard worker; (4) he was a good father to his child and his wife’s children from a previous relationship; (5) his co-defendant received a sentence of 63 months’ imprisonment; (6) the career offender Guidelines range was overly harsh and failed to deter offenders; (7) he accepted responsibility for his conduct; and (8) he attempted to provide substantial assistance in the prosecution of others, but his attempts were frustrated by factors outside of his control.

The district court imposed a 188-month sentence for Count 1 and an 84-month sentence for Count 2 to run consecutively. The Fourth Circuit concludes that the district court failed to provide adequate explanation for the sentence, and did not address Blue’s arguments in favor of a lesser sentence. The Fourth Circuit notes that “a sentencing court must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the court rejects those arguments, it must explain why in a sufficiently detailed manner to allow this Court to conduct a meaningful appellate review.” Here, the district court failed to address six of the eight above-stated issues raised by Blue at sentencing. Based on this conclusion, the Court holds that the sentence is procedurally unreasonable, and vacates Blue’s sentence.

United States v. Moshin Raza (No. 16-4247)

United States v. Farukh Iqbal (No. 16-4259)

United States v. Mohammad Ali Haider (No. 16-4261)

United States v. Humaira Iqbal (No. 16-4262)

The defendants were convicted by a jury in the Eastern District of Virginia of the offenses of wire fraud and conspiracy to commit wire fraud . Their alleged crimes were predicated on a fraudulent mortgage lending scheme centered at the Annandale branch of SunTrust Mortgage in Fairfax County, Virginia. The defendants were former employees of that branch, and the substance of the charges involved 25 mortgage loans made by SunTrust from May 2006 through February 2007. The government alleged that the defendants prepared fraudulent mortgage applications, which included false employment claims, inflated incomes, and overstated assets. By preparing these documents and submitting them to SunTrust’s underwriters in Georgia for approval, the defendants caused SunTrust to fund 25 of the mortgages at issue in this case. The defendants were paid a commission for each approved mortgage, which was their motive (according to the government) for submitting falsified documents.

During the course of these activities the defendants presented false information in the mortgage applications, manufactured and delivered false supporting documents (payroll documents, tax-related documents, pay stubs, W2 forms, bank statements) with those applications to support the applications’ false claims.

The defendants presented three witnesses at trial, seeking to show that the misrepresentations made on the mortgage applications were not important to the bank’s loan process. The defendants also sought to prove that their scheme did not present substantial risk of injury to SunTrust. According to the first defense witness, SunTrust aggressively sought to originate mortgage loans in order to sell them on the secondary mortgage market. In other words SunTrust sought to sell the loans immediately after origination, before the borrowers could default and undermine the loans’ marketability; consequently, the witness stated, SunTrust discouraged its mortgage underwriters from raising red flags when loan applications contained questionable information about income, employment, or assets, as long as the borrowers had good credit. Another defense witness testified that SunTrust’s actions were “reckless” in that they approved far more mortgage loan applications than their competitors.

(1) The first issue in this appeal relates to the district court’s jury instructions. In order to convict, the jury was required to find that the defendants had made materially false statements to SunTrust. The defendants wanted the court to define this subjectively – “a materially false statement was one that would have a natural tendency to influence or be capable of influencing a decision of the particular decisionmaker to whom it was addressed – here, the decision of SunTrust to approve and fund mortgages for the properties named in the indictment.” The prosecution sought an objective instruction: “a materially false statement was one that would have a natural tendency to influence or be capable of influencing a decision or action.” The district court gave the prosecution’s proposed instruction.

The defendants argue that the district court’s objective materiality instruction authorized the jury to convict them on the basis of false statements that an objective, reasonable lender might have considered material, but that SunTrust itself did not deem to be material in the circumstances.

The Fourth Circuit, however, explains that according to its precedents, “frauds perpetrated on private lending institutions are judged according to an objective, ‘reasonable financial institution’ standard.” See United States v. Colton , 231 F.3d 890, 903 n.5 (4th Cir. 2000); see also United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980)(“If a scheme to defraud has been or is intended to be devised, it makes no difference whether the persons the schemers intended to defraud are gullible or skeptical, dull or bright. These are criminal statutes, not tort concepts.”). The Court goes on to say that “the relevant elements of wire fraud are an intent to defraud and materiality, which Colton defined as “what a reasonable financial institution would want to know in negotiating a particular transaction.” Id. at 903 n.5 (emphasis added).

(2) Next, the defendants argue that the district court erred when it instructed the jury that in order to convict, the jury must find that the defendants acted “knowingly and with the intention . . . to deceive or to cheat.” The defendants contend that the court’s use of the disjunctive “or” in that instruction “erroneously allowed conviction for wire fraud based just on intent to deceive without an intent to deprive SunTrust of anything of value. The Court rejects this argument, noting that the instructions as a whole adequately conveyed to the jury that a scheme to defraud requires that “someone intends to deprive another of something of value.”

(3) The Court similarly dispenses with the defendants’ final claim of error. There, the defendants argue that the district court failed to adequately instruct the jury that it had to consider the guilt of each defendant separately, and that the jury should allow the guilt of one defendant to control its verdict as to the remaining defendants. The Court holds that that the district court’s instructions as a whole sufficiently addressed this issue, and rejects the defendants’ claim of error on that basis.

Juniper v. Zook (No. 13-7)

Anthony Juniper was convicted at trial for the murders of Keshia Stephens, along with Ms. Stephens’ brother, and her two daughters. The evidence at trial showed that Juniper and Stephens were involved in a tumultuous relationship. On the morning of the murders, Juniper went to Stephens’ apartment at approximately 10:20 am. While there, Juniper and Stephens argued. An eyewitness described hearing four “booms,” which she described as “sounding like gunshots.” A friend of Juniper’s testified that Juniper called him and said “they gone,” and that Juniper had “killed them,” without specifying who he was talking about. Another witness testified that he went over to Stephens’ apartment and saw that the front door had been kicked in. He further testified that he entered the apartment and saw Juniper holding a pistol, and that he saw the alleged victims dead in the master bedroom. A third witness testified that she drove to Stephens’ apartment and that Juniper came out of the apartment and got into her car, and that Juniper was holding a handgun when he got into the car.

Police arrived on scene at approximately 12:44 pm in response to a disturbance call at the apartment complex with possible gunshots. The officers who responded walked the apartment complex and then departed, not having observed anything out of the ordinary. Later, at approximately 2:20 pm, a large number of police officers responded to the second disturbance call. When police arrived, one of the trial witnesses was on scene and informed the officers that the victims were inside Stephens’ apartment. Officers entered the apartment and discovered the victims in the master bedroom.

Juniper was charged and convicted for capital murder, burglary, and use of a firearm in commission of a felony. After conviction, Juniper’s case worked its way through the state direct appeal and collateral review stages; Juniper was denied relief in those proceedings. 

In 2011, the lead investigator in Juniper’s case, Detective R. Glenn Ford, was federally prosecuted for and convicted of taking bribes. During that prosecution, it was revealed that investigative notes maintained by Ford related to Juniper’s case had not been turned over to Juniper’s trial counsel. Among the items that were not disclosed were notes which stated that, in the immediate aftermath of the murders, investigators interviewed one of Stephens’ neighbors, Wendy Roberts, and asked her to view a photo line-up. Juniper’s trial counsel did not know that Wendy had discussed the case with investigators.

Investigators assisting in Juniper’s habeas proceedings approached Wendy, who provided an affidavit averring that the night before the murders she heard a man and woman arguing in Stephens’ apartment. She heard arguing again the following morning. And then in the afternoon, as she was taking her dog outside, she heard “a series of loud pops.” Soon after, a man came down the stairs from  Stephens’ apartment and told Wendy “What the f—- are you looking at lady?” The man then got into a car and drove away. Wendy stated that the man, who was one of three African-American men who regularly visited Stephens’ apartment, was the only person in the car.  Wendy further averred that this occurred sometime between 1:00 and 2:30 p.m. and approximately five minutes before a large number of police officers arrived. Wendy’s son, Jason, also provided an affidavit to Juniper’s habeas investigators. Jason, who lived with Wendy at the time of the murders, averred that he heard “gunshots” and looked out his window and saw an African-American man running to a car parked in front of the building. Jason said he immediately ran outside and saw the man get into the driver’s seat of the car and drive off. According to Jason, within five minutes, approximately thirteen police officers arrived.

In Juniper’s federal habeas petition under 28 U.S.C. 2254, he asserted that the State’s failure to disclose the above-referenced statements constituted a Brady violation. During the discovery that took place pursuant to that proceeding, it was confirmed that investigators spoke with Ms. Roberts at the scene during their initial investigation of Stephens’ murder. It was further revealed that Roberts viewed a photographic lineup and identified an individual who was not Juniper as the man who left Stephens’ apartment that day. The prosecuting attorney submitted an affidavit maintaining that the Roberts materials were not materially exculpatory—and thus not subject to disclosure under Brady—because “Wendy Roberts’ statements on January 16, 2004 were factually inconsistent with the documented event chronology of the [Police Department] response and activities in and around [Stephens’ apartment] on January 16, 2004.” The district court denied Juniper’s habeas petition, finding that the withheld statements did not meet Brady‘s “materiality” requirement.

The Fourth Circuit now reverses the district court, remanding the case for an evidentiary hearing (which was denied below). The Fourth Circuit finds that the district court did not apply the proper legal standard in determining whether Juniper alleged or established sufficient facts regarding materiality to warrant an evidentiary hearing. First, the Fourth Circuit holds, the district court failed to “construe facts in the light most favorable to the plaintiff . . . and draw all reasonable inferences in his favor.” Second, the district court failed to properly account for the impeachment value of the withheld Roberts statements. Third, the district court improperly made credibility determinations based on the written record.

Whereas the forensic evidence inculpating Petitioner was strong, but not unassailable, the withheld Roberts materials—viewed in the light most favorable to Petitioner—had significant exculpatory value. First, Wendy’s statement to the investigators and identification of a different individual in the photo array would have allowed Petitioner to mount an “other suspect” defense. Courts have long recognized that “new evidence suggesting an alternate perpetrator is ‘classic Brady material.’” Williams, 623 F.3d at 1265 (9th Cir. 2010) (quoting Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir. 2001)); Hart, 798 F.3d at 588 n.1. To that end, courts have found withheld evidence material when the evidence pointed to a different individual as perpetrating the convicted offense

Second, by establishing that Keshia was alive between 12:30 and 12:45 p.m., Wendy’s statement to Investigator Jones, if proven credible, would call into question the government’s theory that the murders occurred at 11:44 a.m.

Third, the withheld evidence “would have raised opportunities to attack . . . the thoroughness and even the good faith of the investigation.” Kyles, 514 U.S. at 445 (concluding withheld evidence describing potential alternative perpetrator was material, in part because it could have been used to cast doubt on adequacy of government’s consideration of alternative suspects).

Fourth, the withheld evidence was not cumulative of other evidence. Cf. Johnson v. Folino, 705 F.3d 117, 129 (3d Cir. 2013) (“Suppressed evidence that would be cumulative of other evidence . . . is generally not considered material for Brady purposes.”).

Finally, Petitioner’s trial counsel could have used the investigative notes of the Roberts’s statements to pursue evidence of Petitioner’s innocence that could have been used at trial.

 

Accordingly, the Fourth Circuit concludes, the district court abused its discretion in dismissing Juniper’s Brady claim premised on the withheld Roberts materials without holding an evidentiary hearing.

U.S. v. Terrell Banker (No. 16-4413)

Terrell Banker appeals his convictions for conspiracy to engage in sex trafficking of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a); and enticement of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2422(b). At Banker’s trial, it was disputed whether Banker had actual knowledge that the alleged victim, C.O., was underage. There was testimony that C.O. had lied to Banker about her age, and also testimony that Banker had later been informed of her actual age.

The district court ruled that, with respect to the § 1591(a) sex trafficking offense, it would charge the jury that it needed to find beyond a reasonable doubt that Banker “knew, or was in reckless disregard of the fact that [C.O.] was under the age of eighteen.” Additional instructions emphasized that this element could be satisfied by proof of either knowledge or reckless disregard, and that in considering proof of reckless disregard, the jury could “consider [Banker’s] reasonable opportunity to observe.”

On appeal, Banker contends that the district court’s jury instructions concerning § 1591(a) and § 2422(b) misstated the law. He maintains that to convict him of sex trafficking of a minor under § 1591(a) the jury had to find that he actually knew C.O. was a minor and could not properly base its verdict on the lesser mens rea of reckless disregard.

The Fourth Circuit examined the applicable statute, quoting the following portion:

Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),

knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished . . . . 18 U.S.C. § 1591(a) (2012).

The Fourth Circuit agrees with the Government’s proposed interpretation of the statute, that the first instance of “knowingly” in the statute applies to the indented subsections (1) and (2), and that the latter prase “knowing, or in reckless disregard of the fact,” modifies both clauses that follow it, allowing either mental state to exist for proof of either force or the victim’s age.

Put another way, the Fourth Circuit reads the statute’s linguistic structure as follows:

“Whoever knowingly, [A] or [B], knowing, or in reckless disregard of the fact, that [X], or that [Y], shall be punished . . . .”

Banker also challenges his conviction under 18 U.S.C. § 2422(b) on similar grounds. The statute provides as follows:

Whoever . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Banker argues that the district court should have instructed the jury that it must find that he had actual knowledge that C.O. was a minor for purposes of a conviction under § 2422(b). He asserts that the “knowingly” requirement extends to both the verbs that follow and their direct object (i.e. that the “knowingly” requirement also applies to the fact that the victim was under 18 years old). The Fourth Circuit rejects this argument, noting a prior case, United States v. Washington, 743 F.3d 938 (4th Cir. 2014), in which the court considered a similar argument regarding nearly identical language in 18 U.S.C. § 2423(a). There, the court recognized that in cases where “a victim’s underage status [is] an aggravating factor in order to provide minors with special protection, the Government must prove the victim was a minor, but is not required to prove the defendant’s actual knowledge of that fact.”

Lastly, the court rejects Banker’s claim that the evidence was constitutionally insufficient to sustain his convictions. The court notes the “heavy burden” that a defendant faces in order to prevail on a sufficiency challenge, and concludes that the evidence at trial meets the requisite burden to authorize conviction.

Kernan v. Cuero (No. 16-1468)

Here, the Defendant was charged with two felonies and a misdemeanor, and he entered a guilty plea to both felonies. After the guilty plea proceeding, but before the Defendant had been sentenced, the prosecutor moved to amend the criminal complaint to reflect that the Defendant had two prior felonies, which gave rise to additional sentencing exposure (altering his exposure from a maximum of 172 months to a minimum term of 300 months). The Defendant objected, and the trial court granted the prosecutor’s motion, and allowed the Defendant to withdraw his guilty plea. The Defendant subsequently entered a guilty plea to the new complaint, and his claims of error did not prevail during his state direct appeal and habeas proceedings.

On federal habeas review, the Ninth Circuit applied principles of contract law to conclude that the Defendant was entitled to specific performance of the agreed-upon 172 maximum sentencing range. In a per curiam opinion, the Supreme Court now reverses, expressing skepticism that the Ninth Circuit’s reading of the law is correct. However, the Supreme Court sets aside any dispute over interpretation, and falls back on the highly deferential standard that applies on habeas review, concluding that the trial court’s decision was not “contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).

Dunn v. Madison (No. 17-193)

An Alabama jury found Madison guilty of capital murder, and he was sentenced to death. In 2016, as Madison’s execution neared, he petitioned the trial court for a suspension of his death sentence. He argued that, due to several recent strokes, he has become incompetent to be executed. The court held a hearing to receive testimony from two psychologists who had examined Madison and prepared reports concerning his competence. After hearing testimony from those experts which included, inter alia, Madison’s claim that he did not remember the murder or his trial, the trial court denied Madison’s petition.

On federal habeas review of that order, the Eleventh Circuit reversed,  reasoning that given the undisputed fact that Madison has no memory of his capital offense, it follows that he “does not rationally understand the connection between his crime and his execution.” On that basis, the Eleventh Circuit held that the trial court’s conclusion that Madison is competent to be executed was “plainly unreasonable.”

The Supreme Court’s per curiam opinion reverses the Eleventh Circuit, once again pointing to the deferential standard applied on federal habeas review.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error “beyond any possibility for fairminded disagreement.” Richter, supra, at 103. Under that deferential standard, Madison’s claim to federal habeas relief must fail.

State v. Andrew Looper (No. 2015-001493)

Petitioner was charged with driving under the influence (DUI). At a pretrial hearing before a magistrate, Looper moved to suppress evidence of field sobriety tests and breath analysis, arguing they were the fruits of an unconstitutionally prolonged traffic stop. The magistrate granted Looper’s motion to suppress the evidence and dismissed the DUI charge. The State appealed to the circuit court. The circuit court held the magistrate erred in granting Looper’s motion and reversed and remanded for further proceedings. Looper appealed the circuit court’s ruling to the court of appeals.

In South Carolina, there are different standards for when each party can appeal in a criminal case. For the State, an appeal can be taken from an order order granting the suppression of evidence which “significantly impairs the prosecution of a criminal case.” A defendant, on the other hand, can only appeal from a final sentence and conviction. In considering Looper’s appeal, the Court of Appeals analogized the circuit court’s ruling to an order denying a motion to suppress evidence. The court of appeals therefore dismissed Looper’s appeal, finding that he was not “aggrieved” in a legal sense, because he had not been convicted and sentenced

What complicates this issue in the present case is a prior case from 2000, State v. Gregorie, 339 S.C. 2, 3, 528 S.E.2d 77, 78 (2000), in which the court stated that “any aggrieved party may appeal the circuit court’s final judgment.” This language appears to grant appellate review from the circuit court’s reversal in this case, and the Supreme Court granted certiorari to clarify this point of appellate procedure.

The court acknowledges that Gregorie language may be read to suggest that being aggrieved is the only requirement to appeal from a circuit court’s order.

We, of course, take no exception to the notion that Petitioner was adversely impacted by the circuit court’s order remanding the case for trial, but he was not aggrieved in a legal sense. Cf. Shields v. Martin Marietta Corp., 303 S.C. 469, 470, 402 S.E.2d 482, 483 (1991) (“Avoidance of trial is not a ‘substantial right’ entitling a party to immediate appeal of an interlocutory order.”)

The court clarifies that the proper standard for whether a defendant can appeal is that the defendant must be  aggrieved by a final judgment.

US v. Beth Palin & Joseph Webb (No. 16-4522, No. 16-4540)

Palin owned Mountain Empire Medical Care (“MEMC”), an addiction medicine clinic, and Bristol Laboratories (“the Lab”), which processed urine drug tests ordered by doctors. The Lab performed two types of urine tests: the basic, inexpensive “quick-cup” test and a more sophisticated, more expensive “analyzer” test. Referring doctors did not specify the type of test that was needed in any given case. Palin and Webb made that decision, instituting procedures in which insured patients were treated differently than uninsured patients. Uninsured patients paid cash and received the “quick-cup” test. Insured patients received both the “quick-cup” and the more expensive “analyzer” test. The Lab billed insurers for the sophisticated test. As a result, both Palin and Webb were charged with health care fraud and conspiracy to engage in health care fraud.

After a bench trial, the district court found Palin and Webb “knowingly and willfully executed a scheme to defraud health care benefit programs” in violation of §§ 1347 and 1349. The court found that performing additional, weekly, expensive tests for insured patients was not medically necessary; that insurers have rules prohibiting providers from submitting claims for unnecessary tests; and that Palin and Webb knew the additional tests were unnecessary but hid that fact when billing the insurers.

Palin and Webb moved for judgments of acquittal or, in the alternative, for a new trial, relying in part on Universal Health Services, Inc. v. United States ex rel. Escobar, — U.S. —, 136 S. Ct. 1989 (2016), which issued after the district court had found them guilty. They argued that Universal Health changed the materiality standard applicable to health care fraud under § 1347 and, under the new standard, their asserted misrepresentations were not material. On appeal, the Defendants further assert that because they billed insurers for the more sophisticated tests, and because the insurers regularly paid those claims despite knowing the type of test and the frequency of testing (weekly), it follows that “no material misrepresentations existed.” The Fourth Circuit rejects this  argument, stating: “insurers would not have paid for the sophisticated tests had they known those tests were unnecessary. In contrast to the example discussed in Universal Health, the insurers here did not reimburse claims despite knowing Palin and Webb sought payment for tests that Palin and Webb knew were not medically necessary.”

The Fourth Circuit further holds that the district court did not abuse its discretion in refusing to order a new trial after the publication of Universal Health. Rather than granting a new trial after learning of the decision in Universal Health, the district court issued a second written opinion in which it found that the defendants’ misrepresentations were material. The Fourth Circuit notes that “the court’s holding that the misrepresentations at issue were material is amply supported by an extensive record.”

The Fourth Circuit also dispenses with the defendants’ challenges to the indictment and to the sufficiency of the evidence presented at trial.

U.S. v. Shawntanna Thompson

Shawntanna Lemarus Thompson pled guilty to a drug offense and being a felon in possession of a firearm. The district court increased his sentence, because it found Thompson’s previous state conviction for assault inflicting serious bodily injury constituted a “crime of violence” under § 4B1.2 of the United States Sentencing Guidelines. Thompson appeals, challenging only his sentence. The Fourth Circuit affirms Thompson’s sentence, reasoning that the residual clause of § 4B1.2 authorized the increased sentence

Briggs v. State (No. 2014-000693)

The State indicted Briggs for criminal sexual conduct with a minor in the first degree and lewd act upon a child. At trial, the victim testified Briggs touched her “private” with his “private” and with his mouth, and the jury watched video of two forensic interviews in which the victim explained what happened. Using a special interrogatory verdict form, the jury found Briggs performed “anal intercourse,” “cunnilingus,” and “other intrusion” on the victim. After Briggs’ conviction was affirmed on direct appeal, Briggs brought a PCR action. He claimed, among other things, his trial counsel was ineffective in permitting the forensic interviewer to give opinion testimony that she believed the victim’s accusations to be true. The PCR court granted relief, vacated the convictions, and remanded to the court of general sessions for a new trial.

The Supreme Court described the improper testimony as follows: Arroyo-Staggs (the forensic interviewer) explained to the jury that before the interviews, she stressed to the victim the importance of telling the truth. Second, Arroyo-Staggs testified to her opinion the victim had not been coached. Third, Arroyo-Staggs told the jury “my role is to always find out . . . whether or not the child is able to know the difference between a truth and a lie.” On this point, the solicitor asked, “Do you make an assessment to determine whether or not the child understands truth and lie before you do [the interview],” and she replied, “That’s correct.” Fourth, when the solicitor asked Arroyo-Staggs to “describe for the jury what a forensic interview is,” Arroyo-Staggs answered, “A forensic interview is an assessment that is conducted . . . for the purpose of finding out if something happened or didn’t happen.” Similarly, when asked how she “assess[es] a child’s competency to do a forensic interview,” Arroyo-Staggs testified, “I base a lot of it on my experience and my knowledge and my training in reference to the developmental stages to figure out what has occurred.” Taken together, the Court finds that her testimony “clearly conveyed to the jury that she believed the victim.”

In this case, by informing the jury she conducted the forensic interviews for the purpose of finding out whether the sexual abuse happened, Arroyo-Staggs went far beyond her role as a person who collects facts for the jury to use in the jury’s determination of whether the victim was telling the truth. Arroyo-Staggs invaded the province of the jury and testified she had already made that determination. This testimony directly conveyed to the jury that she believed the victim. Similarly, her testimony that she made the determination the child understood the difference between a truth and a lie before she conducted the interviews is not part of her evidentiary role. Arroyo-Staggs’ testimony not only revealed to the jury that she believed the child knew the difference, but she also indirectly revealed she believed the subsequent disclosure in the interview was the truth.4 There was no purpose for this testimony except to bolster the victim’s credibility, and thus it was improper.

The Court further took issue with trial counsel’s cross examination of the expert, in which he asked her how she could possibly know that the victim was telling the truth.

We can discern no defensible purpose for [trial counsel’s] cross-examination questions. [Trial counsel] did not provide any. As we explained earlier, [trial counsel] testified his strategy was “to say that it didn’t happen, because nobody, her mother, her grandmother, nobody believed the child, that it happened.”[Trial counsel’s] deficiency in these cross-examination questions was that despite this strategy, he made sure the jury knew at least one person believed the child—the expert. In the series of questions and answers quoted above, from which [trial counsel] appears to have gained nothing for Briggs, he permitted a highly-educated, articulate, certified expert witness to provide the jury something that significantly undermined his strategy— an expert who believed the victim.

 

State v. King (Case No. 2015-001278)

In this case, the Supreme Court granted certiorari to expand on the Court of Appeals’ analysis below. The Court of Appeals previously reversed King’s attempted murder conviction based on the trial court’s erroneous instruction that attempted murder does not require a specific intent to kill. The Supreme Court notes that the Court of Appeals’ analysis focused on the phrase “with intent to kill” in isolation and did not consider the remainder of the statute concerning “malice aforethought.” Had the COA done so, the decision would have been much clearer as to why attempted murder requires a specific intent to kill. Tracking the legislative history of the Assault and Battery with Intent to Kill statute, the Court finds that the General Assembly expressly repealed the offense of ABWIK and purposefully created the new offense of attempted murder, which includes a “specific intent to kill” as an element.

State v. Shawn Wyatt (Case No. 2016-001303)

Kershaw Correctional Institute Officer Joe Schnettler was at his post in a watch tower when he observed a man run from the woods to the fence surrounding the prison. Schnettler watched the man throw eight packages over the fence, and then run back into the woods. During the incident Schnettler radioed other prison officers and announced each time the man threw another package over the fence. Schnettler described the suspect as a “white man” wearing “long jean shorts and a dark shirt.” A few minutes later, Kershaw Correctional Institute Officer Brenda Lippe was driving to work when she passed a man walking away from the prison on Highway 601. When Lippe arrived at work, she heard about the incident at the fence, and told the correctional officer in charge of contraband that she had seen a man walking away from the prison on Highway 601. She described him as “a light skinned black gentleman with a nice neat haircut, black shirt and . . . charcoal-colored shorts.” The correctional officers informed the Lancaster County Sheriff’s Office that there was a “black male wearing a black shirt and jean shorts” walking on Highway 601 who may have been involved with a contraband incident at the prison. Soon after, Deputy Charles Kirkley saw Wyatt walking along Highway 601 and detained him. Schnettler left the prison and drove to the side of the road where Kirkley was holding Wyatt, and Schnettler positively ID’d him. Wyatt was then driven to the prison, where Lippe positively identified Wyatt as the man she had seen walking on Highway 601 a few minutes earlier.

Wyatt was convicted for attempting to furnish contraband to a prisoner and possession with intent to distribute cocaine, cocaine base, and marijuana. He argues on appeal that the trial court erred by not suppressing the two eyewitness identifications (Schnettler and Lippe). During the pre-trial suppression hearing, the State appeared to concede that the show-up identification procedure was suggestive. However, the Supreme Court notes that the first prong of Neil v. Biggers requires a trial court to consider whether the procedure, even if suggestive, was necessary under the circumstances. The Supreme Court states that courts in other cases have denied suppression under the first prong of Biggers because the circumstances of the case rendered suggestive police procedures necessary. In the present case, the Supreme Court holds that the show-up identification was necessary because (1) it allowed the officers to quickly determine whether Wyatt was the suspect, or whether he should be released, (2) the officer who detained Wyatt initially lacked probable cause to formally arrest him – and that probable cause was supplied by Schnettler’s identification, and (3) providing a formal lineup would not have been workable under the circumstances.

Regarding Lippe’s identification, the Court holds that any issues with the identification did not affect the outcome of trial. The Court notes that Lippe did not witness the crime, and her testimony proved only a fact already established conclusively: that Wyatt was walking away from the prison on Highway 601 just before 6:00 a.m.

U.S. v. Julian Zuk (No. 16-4727)

In this appeal, the government challenges as substantively unreasonable the sentence imposed by the district court on Julian Zuk. Zuk was indicted on seven counts for transmitting, receiving, and possessing child pornography. The undisputed evidence shows that before his arrest, Zuk amassed more than 13,800 photographs and more than 470 videos, a large proportion of which depicted the sadistic treatment of young children. He also communicated on a daily basis with a 16-year-old who was sexually abusing his 5-year-old cousin and even directed the 16- year-old to abuse the child in specific ways.

Pursuant to a plea agreement, Zuk pleaded guilty to one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Because the Sentencing Guidelines’ recommendation for Zuk’s relevant conduct substantially exceeded 240 months’ imprisonment, which was the maximum sentence for possession, the 240-month term became the Guidelines’ recommended sentence. Following a lengthy sentencing hearing during which Zuk’s recently diagnosed autism spectrum disorder was explained, the district court sentenced Zuk to time served of 26 months, reciting Zuk’s disorder as the “primary driver” behind the sentence.

On appeal, the government argues that the time-served sentence Zuk received is substantively unreasonable because it creates unwarranted sentence disparities and fails to provide just punishment or adequate deterrence in light of the seriousness of Zuk’s offense conduct. The government claims that Zuk is a pedophile, a sadist, and a recidivist who possessed more than 13,000 images of child pornography and who directed a 16-year-old boy’s sexual abuse of his five-year-old cousin for Zuk’s sexual gratification. The government further points out that Zuk’s time-served sentence is lower than the sentence advised by the Sentencing Guidelines for a child-pornography possession offense with no aggravating factors.

The Fourth Circuit notes that the downward variance in this case amounted to 214 months, approximately 90 percent of the sentence recommended by the Guidelines. Such an extensive variance, the Fourth Circuit concludes, is not justified by the consideration that the district court gave to the sentencing factors set forth in § 3553(a). Specifically, the Court agrees with the government’s argument that the district court gave undue weight to Zuk’s autism diagnosis, and there was not a demonstrable link between such diagnosis and Zuk’s alleged conduct. Bearing these considerations in mind, the Fourth Circuit vacates the district court’s sentence and remands for resentencing.

 

US v. Blain Salmons

Blain Salmons Jr. pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). This crime carries a base offense level of 14, see U.S.S.G. § 2K2.1(a)(6)(A), unless the defendant has a prior conviction for a crime of violence, in which case the base offense level rises to 20. The term “crime of violence” is defined with reference to U.S.S.G. § 4B1.2(a).

Salmons had previously been convicted of West Virginia aggravated robbery. At sentencing, the district court found that this constituted a crime of violence for the purposes of calculating the applicable guideline range. With this prior conviction, the district court determined that Salmons’ advisory guideline range was 30-37 months. Had the district court found that Salmons’ prior conviction did not qualify as a crime of violence, his advisory range would have been 15-21 months. The district court ultimately imposed a sentence of 12 years and 1 day. On appeal, Salmons argues that the district court erred by concluding that his prior conviction for aggravated robbery subjected him to an increased guideline range under U.S.S.G. § 2K2.1(a)(4)(A).

The Fourth Circuit holds that it is “clear that West Virginia aggravated robbery qualifies as a crime of violence under the aforementioned 4B1.2(a)(1) definition.” The Court notes that at the time of Salmons’ conviction, aggravated robbery was defined as “the successful or attempted commission of a robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever.” W. Va. Code § 61-2- 12 (1961). On these grounds, the Fourth Circuit affirms the lower court’s judgment, finding “no need to belabor discussion of a district court decision so soundly anchored in both law and common sense.”

State v. Collier

Derek Vander Collier appeals his conviction for second- degree burglary, arguing the trial court improperly limited his closing argument, erred in allowing the State to play recordings of two police interviews, and should not have allowed a witness to identify him in front of the jury.

  1. During trial Justin Kirkman, an eyewitness to the burglary, testified for the State. During his testimony, the defense pointed out several inconsistencies between his testimony and his prior statements to police. The State attempted to rehabilitate Kirkman with prior consistent statements, and defense counsel objected. The trial court indicated that it would allow the State to introduce Kirkman’s prior consistent statements if the defense intended to argue that Kirkman was fabricating his testimony and was “lying to save himself from going back to jail” (it was revealed on cross exam that Kirkman was on probation for unrelated charges). Defense counsel informed the court that the defense would not present such an argument, and consequently the State was prohibited from introducing Kirkman’s prior statements. During closing argument, however, defense counsel made this very argument, stating, “You tell me who has got motivation. Justin Kirkman has motivation, already convicted felon[,] already on probation.” The State objected, and the trial court prohibited counsel from making this argument again, pursuant to its prior ruling. The Court of Appeals holds that the trial court did not abuse its discretion in limiting counsel’s closing argument in this way. The Court further notes that any error on the part of the trial court would be harmless, in particular because counsel’s remarks were not stricken from the record, nor was the jury instructed to ignore or disregard the argument.
  2. Next, Collier challenges the introduction of two custodial statements he made, in which he implicated himself in the burglary at issue in this case. Specifically, Collier argues that he was under the influence of crack cocaine when one of the statements was made, and that he wouldn’t have made the subsequent statements but-for the first statement. The Court of Appeals quickly dispenses with this issue, holding that the trial court did not abuse its discretion in admitting the statements at trial.
  3. Finally, Collier argues the trial court should not have allowed Kirkman to identify him before the jury because the pretrial identification procedure was unduly suggestive. Specifically, Collier argues that he was the only person depicted in the lineup who, like the person Kirkman confronted, wore a hooded sweatshirt. The Court of Appeals rejects this argument, noting that there was no evidence of suggestive police tactics. Further, the Court notes that the trial court properly weighed the applicable factors in allowing Kirkman to make an in court identification of Collier during trial. Bearing this in mind, the Court holds that Kirkman’s identifications of Collier did not mandate reversal of his conviction.

United States v. Lacresha Slappy

After serving a prison term, Slappy began serving a term of supervised release. Approximately one year later, Slappy’s probation officer filed a motion for revocation of Slappy’s supervised release, arguing numerous violations. At the revocation hearing, the Judge sentenced Slappy to the maximum punishment for these violations, while not specifically addressing a number of Slappy’s non-frivolous arguments in favor of a more lenient sentence. The Fourth Circuit notes that although the “court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, . . . it still ‘must provide a statement of reasons for the sentence imposed.'” In light of that, the Fourth Circuit holds that the district court’s failure to address Slappy’s arguments in favor of a within-policy-statement-range sentence constitutes procedural error.

Accordingly, we apply Carter here and hold that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the court rejects those arguments, it must explain why in a detailed-enough manner that this Court can meaningfully consider the procedural reasonableness of the revocation sentence imposed.

The Fourth Circuit concludes by holding that the district court’s error was not harmless. Consequently, Slappy’s sentence was vacated, and the case was remanded.

Read the full opinion here.

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