SC Supreme Court Reverses Denial of PCR in Criminal Sexual Conduct Case

Michael Lee Robinson v. State (No. 2015-001773)

In this PCR case, Robinson was charged with criminal sexual conduct for acts that took place between 1998 and 2000. At the time the alleged acts occurred, criminal sexual conduct with a minor carried a sentencing range of 0-30 years. Subsequently, the statute was amended to increase the sentencing range to 25-Life. During their plea negotiations, the solicitor “agreed to let [Robinson] be sentenced the old version of the law.” Despite Robinson’s outright denial of the allegations, at the advice of his attorney, he took the deal. Robinson mistakenly believed (based on his attorney’s advice) that he was potentially subject to the 25-Life sentencing range, and that the offer to “let” him plead into the 0-30 sentencing range was a benefit to him. Obviously, the increased sentencing range was not applicable under any circumstances, and thus Robinson received no benefit at all from the solicitor’s “offer.” The SC Supreme Court reverses Robinson’s denial of PCR below, holding that plea counsel was ineffective for failing to recognize that the constitutional prohibition on ex post facto laws rendered the increased sentencing range inapplicable in Robinson’s case.

SC Court of Appeals Affirms Murder Conviction; Clarifies Admissibility of Skype Testimony During Trial

State v. Justine Johnson (No. 2014-001219)

Justin Jermaine Johnson appeals his convictions for two counts of murder, kidnapping, burglary in the first degree, and possession of a firearm during the commission of a violent crime. The evidence at trial showed that Johnson got into an argument with his ex-girlfriend Kaisha Caraway. During this heated argument, Johnson retrieved a shotgun and killed his own son (Caraway’s child) as well as Caraway’s mother.

Johnson sets forth the following errors on appeal: the circuit court erred in (1) admitting predeath photographs of the victims, (2) permitting a witness to testify via Skype, (3) admitting his confession to police when it was not voluntarily given, (4) denying his motion for mistrial when he was brought shackled and guarded into a holding room adjacent to the jury pool’s location, (5) denying his motion for mistrial when two witnesses involved in the case discussed the merits of the case in the hallway outside the courtroom and within earshot of prospective jurors, and (6) sentencing him to five years for possession of a weapon during the commission of a violent crime when a statute prohibits such punishment.


During trial, the State was permitted to introduce photographs of the victims prior to the death. Johnson objected, arguing that the photos were irrelevant and served only to arouse sympathy. The Court of Appeals agrees that it was error to admit these photographs, but concludes that any error was harmless based on the overwhelming evidence of guilt.

Skype Testimony

During the trial, the State was permitted to present the testimony of one of the police officers remotely, via Skype. Johnson objected, arguing that the failure to present such testimony in person violated his Sixth Amendment right to confront witnesses. The Court  concludes the trial court erred in permitting the State to present testimony via Skype.

“The Fourth Circuit has indicated the generalized conviction of criminal offenses is not sufficient to dispense with in-court confrontation and other courts have generally permitted such testimony only in cases in which the witness’s health prevents him or her from traveling or possibly when a witness is beyond the subpoena power of the court . . . in the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right via in-person confrontation is inappropriate”

Despite the trial court’s error, the Court of Appeals nevertheless finds that the error was harmless, in light of the substance of the testimony and other evidence presented at trial.

Voluntariness of Confession

Johnson argues the circuit court erred in finding his confession was voluntary. He asserts that police misrepresented the evidence to him, threatened him with the death penalty, and repeatedly referenced his daughter and what she would think of her father’s actions, rendering his confession involuntary. The Court of Appeals disagrees. “Overall, we conclude the circuit court did not abuse its discretion in admitting Johnson’s statement as the evidence supports a finding his will was not overborne by the various tactics employed during his interrogation.”

Remaining Issues

Johnson argues that he was prejudiced when he was brought to the courthouse in shackles. “The circuit court did not err in denying Johnson’s motion for mistrial based on his being brought into the courthouse in handcuffs and surrounded by police personnel as the record fails to demonstrate any juror observed this activity or that any juror was prejudiced.”

Johnson also argues that his attorney overhead two witnesses discussing the evidence within earshot of jurors. The Court holds that it was not error to deny Johnson’s subsequent motion for mistrial, because “the record fails to demonstrate a juror overheard the comments or was prejudiced by them.”

Lastly, Johnson argues that he should not have been sentenced to an additional 5 years for possession of a firearm during a violent crime, because the statute states that such a sentence is prohibited when a defendant is otherwise sentenced to life in prison. The Court finds that the issue is not preserved for review. (Judge Short writes a concurring opinion stating that “Although this argument was not raised to or ruled upon by the trial court, I would address the issue in the interest of judicial economy.”)

Fourth Circuit Ducks Tough Questions in Online Tracking Case; OK’s FBI’s Use of Malware to Track Darkweb Users

US v. Robert McLamb (No. 17-4299)

McLamb challenges the district court’s order denying his motion to suppress evidence of child pornography contained on a hard drive recovered at his home. The FBI obtained the evidence in the course of its investigation of a child pornography website called “Playpen,” a hidden services message board located on the “dark web.” The dark web is a collection of encrypted networks providing strong privacy protections to its users.

After locating and seizing the Playpen servers in February 2015, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate users accessing the website. The NIT is a computer program (much like malware) designed to surreptitiously install itself on target computers and collect identifying information from those computers. A federal magistrate judge in the Eastern District of Virginia issued the warrant, authorizing the FBI to put the NIT on the Playpen server, such that it would infect the computers of the users who anonymously accessed the site. The NIT identified thousands of computers across the world. After the NIT identified Appellant as one such visitor, the FBI seized Appellant’s hard drive and charged him with receipt and possession of child pornography.

The Fourth Circuit declines to take on the thorny, complicated issues that are presented here, and instead falls back on Leon’s good-faith exception, holding that “even if any of these alleged shortcomings amount to constitutional violation, suppression is not an appropriate remedy.” The Court notes that three other circuits have similarly ducked the question by relying on LeonSee United States v. Horton, 863 F.3d 1041 (8th Cir. 2017); United States v. Levin, 874 F.3d 316 (1st Cir. 2017); United States v. Workman, 863 F.2d 1313 (10th Cir. 2017).

A disappointing punt by the Fourth Circuit, particularly in light of the “cutting edge investigative techniques” employed here. The Court is comfortable that suppressing this kind of evidence would not produce “an appreciable deterrence on law enforcement.” One wonders what effect a green-light from four circuits will have.

US Supreme Court OK’s Arrest of D.C. Party-House Attendees; Justice Ginsburg Questions the High Court’s Fourth Amendment Precedents

District of Columbia v. Wesby

This §1983 action arose out of the allegedly unconstitutional arrest of a number of individuals in a vacant house Washington DC. Police responded to a noise complaint and found the interior of the house in disarray, with a number of individuals partying inside. Officers reported smelling marijuana, observing beer bottles and liquor, and what appeared to be a “makeshift strip club” inside. Upon questioning, the partygoers gave conflicting accounts of who authorized them to party inside of the house. Some stated that they were there for a bachelor party, but were unable to identify the bachelor. Other said they were given permission to party there by a woman named “Peaches,” who the officers contacted by phone. Peaches refused to return to the scene, and ultimately admitted over the phone that she did not have permission to use the house.

The officers arrested the partygoers and ultimately charged them with disorderly conduct. They filed suit under 42 USC § 1983, alleging that they were arrested without probable cause. The partygoers prevailed in the district court, which held that the officers lacked probable cause to arrest the partygoers, in part because the law of unlawful entry “requires evidence that the intruder knew or should have known, upon entry, that such entry was against the will of the owner.”

The Supreme Court reverses the lower court, holding that the officers had probable cause to arrest the partygoers. The Supreme Court points to the condition of the house (vacant, no furniture, filthy) as well as the partygoers conduct (providing evasive answers, hiding when police arrived) to support the officers’ conclusion that the partygoers lacked permission to be on the premises, and that they knew they lacked such permission. The Supreme Court criticized the lower court’s failure to consider the totality of circumstances presented to the officers, and that the court’s reliance on potentially innocent explanations for each suspicious factor was an improper “divide-and-conquer” approach.

In her concurring opinion, Justice Ginsburg makes a few interesting comments about the Court’s Fourth Amendment precedents. She states that this case has led her “to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted.” Justice Ginsburg notes that the officers’ testimony included what appears to be a complete misapprehension of the law, which is ignored in the Court’s Fourth Amendment analysis pursuant to Whren v. United States and its progeny. Justice Ginsburg expresses concern that “the Court’s jurisprudence . . . sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” Justice Ginsburg suggests that the Court should “leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”

Fourth Circuit Cracks Down on Tardy Filings in Pair of Opinions

United States v. Oliver (No. 15-4376)

In Oliver, the Fourth Circuit addressed the Court’s authority to dismiss a criminal appeal as untimely sua sponte. Oliver filed his appeal nearly three months after the denial of his §2255 petition, and several years after his actual conviction. The Court notes that “when the Government promptly invokes the rule [setting deadlines for filing an appeal] in response to a late-filed criminal appeal, we must dismiss.” However, in this case the Government failed to raise the issue until briefs were already filed, and therefore the Court considers its own authority to dismiss Oliver’s appeal sua sponte. After running through some of the considerations at play, including finality of criminal judgments, and the orderly presentation of post-conviction review, the Court concludes that it had “inherent authority” to dismiss an untimely appeal sua sponte. However, the Court notes that it will only exercise such authority in “extraordinary circumstances,” which it happens to find in the present case, dismissing Oliver’s appeal.

United States v. Hyman (No. 16-4771)

In Hyman, the defendant similarly filed a tardy notice of appeal. However, the Government filed a motion to dismiss the appeal only after Hyman had already filed his opening brief. Hyman contended that the Government’s tardy motion to dismiss constitutes a waiver of the timeliness issue. The Court rejects this argument and holds that the Government’s motion was timely, dismissing Hyman’s appeal.

Fourth Circuit Affirms Sex Trafficking Convictions

US v. Michael Lawrence Maynes (No. 16-4732)

“Michael Maynes was a pimp,” this opinion begins. It quickly goes downhill for the appellant from there.

Maynes was convicted of sex trafficking by use of force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a). The allegations in this case were that Maynes convinced several women to work for him as prostitutes based on false promises and threats.

On appeal, Maynes first argues that the trial court erred by failing to give a jury instruction regarding the “materiality” of the alleged fraud that caused the women to work as prostitutes for Maynes. At trial, Maynes sought an instruction that fraud is an “act of trickery or deceit especially when involving misrepresentation; such specific act of fraud must have been material to cause a person to engage in a commercial sex act.” The district court refused to give this instruction. The Fourth Circuit holds that the substance of Maynes’ requested instruction was conveyed elsewhere, when the district court instructed the jury that an element of the offense was “that the defendant acted in knowing or in reckless disregard of the fact that means of force, threads of force, fraud, coercion, or any combination of such means would be used to cause that person to engage in a commercial sex act.” The Fourth Circuit reasons that based on the court’s definition of fraud (“any act of deception or misrepresentation”), “by definition, only material misrepresentations could be used to cause a person to engage in such acts.”

Next, Maynes argues that the evidence present at trial was insufficient to sustain his convictions. The Fourth Circuit quickly dispenses with this claim, stating: “the evidence showed that [Maynes] convinced women to work for him through a variety of material misrepresentations, such as false promises to provide the women with homes and incomes. And once the women were working for him, he used a variety of coercive means, such as controlling access to their children, to prevent them from leaving.”

Lastly, Maynes complains that his trial attorney’s cross examination of the government’s witnesses was unduly limited by the district court. During the testimony of the alleged victims, Maynes sought to cross examine them on their prior histories with prostitution, but the district court limited the scope of these inquiries. The Fourth Circuit, deferring to the trial court’s wide discretion in making evidentiary rulings, notes that “the district court remains in the best position to strike a balance between the relevance of the information to the defense and the risk of creating a mini-trial into the victims’ character.”

Fourth Circuit: W.Va. Unlawful Wounding is a “Crime of Violence” for §4B1.2 Purposes

US v. Donald Covington (No. 17-4120)

Covington pleaded guilty to distribution of heroin. His PSR classified him as a career offender based on his two prior felony convictions. At issue in this appeal is his prior conviction for “unlawful wounding” under West Virginia law. The district court found that the latter conviction was not a crime of violence, and therefore Covington was not subject to an enhanced sentence as a career offender (reducing his sentence from roughly 12.5 years down to 18-24 months).

The government appealed Covington’s sentence, arguing that the district court erred in concluding that unlawful wounding is not a crime of violence. The Fourth Circuit holds that unlawful wounding categorically qualifies as a crime of violence under the force clause of §4B1.2. The Fourth Circuit criticizes the district court’s consideration of “hypothetical scenarios” in which a defendant might indirectly cause harm in violation of the West Virginia statute without using “force.” The Fourth Circuit reverses and remands the case for resentencing.

Fourth Circuit: Catch-All Statute of Limitations Does Not Apply to Civil Commitment of “Sexually Dangerous Persons”

US v. Edgar Searcy (No. 16-6833)

The appellant was convicted in 2003 for using interstate commerce to engage in sexual activity with a minor. He received a sentence of 180 months imprisonment. While he was incarcerated, Congress passed the Adam Walsh Child Protection and Safety Act (18 U.S.C. § 4248). Among other things, this law provides a mechanism for civil commitment of individuals in federal custody who are deemed to be “sexually dangerous persons.” In 2015, as Searcy was nearing the end of his sentence, the Bureau of Prisons petitioned to have him civilly committed under §4248. Searcy moved to dismiss the petition, arguing that the action was commenced outside of the statute of limitations period. Time limits for brining civil actions are governed by 28 U.S.C. § 1658(a), which provides a “general, 4-year limitations period for any federal statute subsequently enacted without one of its own.”

On appeal, the Fourth Circuit rejects Searcy’s argument that the catch-all four-year limitation applies to 18 U.S.C. § 4248. Specifically, the Fourth Circuit notes that §4248 provides its own limitations period. The Court points out that the government may only seek to certify someone as a sexually dangerous person if the person is in the custody of the Bureau of Prisons.

Thus, civil commitment is not some indefinite threat unmoored in time. The statute imposes a clear start and end point during which the government must initiate civil commitment proceedings: the period of time in which that person is in custody of the federal government.

Judge Thacker’s concurring opinion raises another noteworthy point regarding the text of the statute. The statute requires the lower court to consider whether the individual “suffers from a serious mental illness, abnormality, or disorder, ” and as a result whether the individual “would have serious difficult in refraining from sexually violent conduct or child molestation if released.” Judge Thacker notes that this analysis requires the court to determine the individual’s current mental state, and simultaneously their future risk. Judge Thacker feels that this analysis would be premature if the civil commitment action had to be brought within four years of an individual’s entry into BOP custody (and as a result, this could not have been what Congress intended when creating the procedure). For individuals serving lengthy sentences, Judge Thacker reasons that the civil commitment action would only be proper as they approach their possible release date, so that the court can consider their attempts at rehabilitation, as well as their current mental state.


Fourth Circuit Denies Successive Habeas Petition, Shrugs Off Defendant’s “Scylla and Charybdis” Bind

In re: Jarius Dama Phillips (No. 16-9566)

Defendant was convicted in Virginia state court for abduction, rape, and related charges. He was 17 years old at the time of the offense, and was sentenced to four terms of life imprisonment. Virginia has abolished traditional parole, thus these sentences amount to a life-without-parole sentence, as it is understood nationwide.

Phillips filed appeals in state court, to no avail. In 2013, Phillips filed a 28 USC § 2254 application, arguing that his life-without-parole sentence ran afoul of the Eighth Amendment, citing the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama. Phillips’ petition was dismissed due to being time-barred.

Phillips filed a second  2254 application in 2015, again challenging his sentences on the same grounds. The district court dismissed that action due to the fact that he had previously filed a 2254 petition in 2013. Phillips responded to this by filing a request with the Fourth Circuit for permission to file a successive 2254 petition, as required by statute. The Fourth Circuit notes that in order to receive authorization to file a successive 2254 application, the applicant must show (1) that the second application presents a claim that was not presented in the prior application, and (2) that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Herein lies the issue: Phillips’ prior 2254 application did rely on Miller, but Miller was only made retroactive (and thus available to successive 2254 applicants) in 2016. Before the Fourth Circuit, Phillips now argues that his Miller claim was never “presented” in the prior application, since it was not technically available to him yet. The Fourth Circuit points to the Supreme Court’s analysis in Dodd v. United States, in which the Supreme Court acknowledged that this very issue would often arise in habeas corpus litigation: “an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year.” The Court acknowledged that this confluence of rules gave rise to the “potential for harsh results,” which it simply shrugged off. The Fourth Circuit follows suit, shrugging off Phillips’ case.

SC Supreme Court Affirms Dorchester PCR Court; Death Sentence Affirmed in 2001 Murder Case

Marion Bowman v. State (No. 27661)

During the sentencing phase of this capital murder case, defense counsel elicited testimony regarding the defendant’s adaptability to the prison environment, in hopes of convincing the jury to impose a life sentence. During one witness’ testimony on this subject, counsel elicited testimony that the defendant would not be going to a “kiddy camp” or a place where he would be “mollycoddled” if he received a life sentence. On cross examination, the State elicited testimony from the same witness about the general circumstances of imprisonment, including the fact that in prison there are recreational facilities available, a library with books, movies and television for the inmates to watch, and other recreational activities.

After his direct appeal was unsuccessful, Bowman filed a PCR action arguing that his trial attorney was ineffective for failing to object to the above-stated testimony about the general characteristics of imprisonment. South Carolina has drawn a distinction between evidence of prison adaptability and evidence of general prison conditions. The former is admissible at a capital sentencing, the latter is not. Put another way, the sentencing phase of a capital trial is limited to consideration of the character of the defendant or the circumstances of the crime. Thus, general evidence of prison conditions is irrelevant at a capital sentencing. The PCR court that considered this issue found that trial counsel’s decision not to object to this testimony was acceptable under Strickland. Specifically, counsel testified that he was aware that he was opening the door to this inadmissible testimony by eliciting testimony that prison was a terrible place, and that a life sentence was an extreme and harsh punishment. Further, counsel stated that he chose to elicit this testimony knowingly, because he calculated that even if it opened the door to inappropriate testimony, counsel nevertheless felt that the evidence would benefit his client overall.

After running through the Eighth Amendment precedents that gave rise to the capital sentencing framework, the Court ultimately affirms the PCR court’s finding that trial counsel’s failure to object to the testimony at issue did not run afoul of Strickland, noting: “There is evidence that counsel articulated a valid reason for employing this strategy, and because the State’s response was proportional and confined to topics to which counsel had opened the door, we affirm the finding that counsel was not deficient for failing to object to the State’s line of questioning.”

Supreme Court Reverses 11th Circuit; Death Row Inmate May Be Entitled to Hearing RE: Racist Juror

Tharpe v. Sellers (No. 17–6075)

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any “clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him.” The Eleventh Circuit denied his application for appeal after deciding that jurists of reason could not dispute that the District Court’s procedural ruling was correct.

The Supreme Court reaches a different conclusion after its review of the record. The Court notes that the state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race. However, the Supreme Court notes that the record contains a hair-raising affidavit signed by Gattie which includes a variety of patently racist opinions, including Gattie’s opinion that “[a]fter studying the Bible, I have wondered if black people even have souls.” The Supreme Court notes that Gattie’s remarkable affidavit—which he never retracted— “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.”

The Supreme Court concludes that based on the unusual facts of this case, the Court of Appeals was incorrect to conclude that it is indisputable among reasonable jurists that Gattie’s service on the jury did not prejudice Tharpe. The Court vacates the lower court’s decision and remands for further consideration. Although this won’t necessarily entitled Tharpe to an appeal or ultimately grant him a hearing regarding Gattie’s affidavit, after further proceedings below he may ultimately prevail and receive his day in court.

Fourth Circuit Reverses District Court; §2255 Petitioner Entitled to Resentencing

United States v. Jolon Carthorne (No. 16-6515)

The defendant was convicted of possession of a firearm in furtherance of a drug trafficking crime. At sentencing, the probation officer’s presentence report indicated that defendant was subject to the career offender enhancement, due in part to his prior conviction for Assault and Battery of a Police Officer in Virginia. His trial-level attorney did not object to this enhancement, and as a result his guideline range was calculated between 322 and 387 months imprisonment. Had the career offender enhancement not applied, defendant would have received a guideline range of 181 to 211 months.

On direct appeal, the defendant argued that the district court erred in applying the career offender enhancement. However, because trial counsel did not object to the enhancement, the issue was subject only to plain error review on direct appeal. Noting that there was a circuit split on this very issue, the Fourth Circuit nevertheless affirmed defendant’s sentence, due to the stringent plain-error analysis.

Defendant then filed a motion under 28 U.S.C. § 2255, asserting that his trial-level attorney was constitutionally ineffective for failing to object to the career offender enhancement. The district court denied the motion, noting that the Fourth Circuit had not discerned plain error in defendant’s sentence.

As a preliminary matter, the Fourth Circuit is eager to point out that the inquiries under plain error review and a Strickland claim are different, and that they won’t necessarily dictate the same result in all cases.

Turning to the specifics of this case, the Fourth Circuit reasons that defendant’s Assault conviction did not qualify as a crime of violence for the purposes of career offender enhancement. Although at the time of defendant’s sentencing, the Fourth Circuit had not explicitly stated this, the Court reasons that the guiding precedents (including United States v. White, 606 F.3d 144, 148 (4th Cir. 2010) and United States v. Thornton, 544 F.3d 443, 449 (4th Cir. 2009)) “strongly suggested that Virginia assault and battery does not categorically present serious risks of physical injury,” which would remove the conviction from consideration under the career offender enhancement. The Court further noted that the colloquy at sentencing suggested that trial-level counsel failed to understand the basic legal analysis that was required in order to determine whether the Assault conviction would apply. In light of these facts, the Fourth Circuit concludes that there was no strategic basis for counsel’s failure to object. The Court vacates the defendant’s sentence and remands for resentencing.

SC Supreme Court Affirms Conviction and Death Sentence in Myrtle Beach Murder Case

State v. Luzenski Cottrell (No. 27754)

Luzenski Allen Cottrell was convicted and sentenced to death by an Horry County jury for the 2002 murder of Myrtle Beach police officer Joe McGarry. At trial, the State alleged that Cottrell shot and killed Officer McGarry during a scuffle outside of a Dunkin Donuts in Myrtle Beach. The State alleged that McGarry approached Cottrell and attempted to pat him down for weapons, at which time a physical altercation ensued, and Cottrell shot McGarry. On appeal, Cottrell raises five issues

Removal of Cottrell’s trial attorneys.

Weeks prior to the scheduled start of Cottrell’s second trial in March 2012, the solicitors representing the State had separate conversations with Cottrell’s appointed attorneys, at which time each accused co-counsel of misconduct and questioned their ability to adequately represent Cottrell in light of their difficulty working together. The solicitors made the trial judge aware of these allegations, and he conducted discussions in chambers with the appointed attorneys, who both confirmed they had indeed made the allegations brought to light by the State. Both attorneys also indicated they felt their inability to work together jeopardized Cottrell’s defense. Ultimately, due to his concerns for Cottrell’s representation and the ability of the attorneys to overcome their problems just two weeks before trial, the trial judge decided to relieve both attorneys. After appointing new defense counsel, the trial judge afforded Cottrell more than two years before rescheduling the trial so that his new attorneys would have adequate time to prepare.

On appeal, Cottrell characterizes the trial judge’s removal of his counsel as arbitrary and unsupported by any basis in the record. The Supreme Court disagrees, stating that the trial judge “acted properly and in accordance with his broad discretionary authority in removing Cottrell’s appointed attorneys.” Although the Court acknowledges that “it is somewhat problematic that the record does not indicate with specificity what the allegations of misconduct and disagreement actually entail, but the attorneys’ confirmation that the accusations were made and the absence of any rebuttal weighs in favor of affirming the trial judge’s decision.”

Juror Issues

Cottrell next argues the trial court erred in qualifying two jurors after they made statements during the jury selection process indicating they would not consider evidence of a defendant’s background in determining whether to impose the death penalty. The Court quickly dispenses with this issue by noting that the full review of the voir dire process shows that the trial court acted within its discretion in qualifying these two jurors, specifically noting that “Both jurors expressed a willingness to follow the trial judge’s instructions regarding the law, and both indicated they would not automatically impose the death penalty.”

Exclusion of Testimony

The State presented evidence at trial that Officer McGarry had been made aware that Cottrell was a suspect in an unrelated homicide. The State’s theory was that McGarry had this information in mind when he approached Cottrell and attempted to pat him down (which ultimately led to the physical altercation during which Cottrell shot McGarry). Cottrell’s attorneys sought to introduce testimony regarding that homicide investigation in order to show that the State lacked reasonable suspicion that Cottrell was actually involved in the homicide, and therefore McGarry lacked reasonable suspicion to approach and detain Cottrell outside of the Dunkin Donuts. The Court rejects this argument, noting that (1) McGarry was aware of other information about Cottrell, including his involvement in the drug trade, his prior arrests, and another pending attempted murder charge, (2) the witness Cottrell sought to present could not testify to what McGarry actually knew or perceived, (3) for Fourth Amendment purposes, Cottrell was not seized until after he made a gesture towards his waistband. Ultimately, the Court failed to find an abuse of discretion on the part of the trial court for excluding this evidence.

Jury Instruction

During the jury charge conference, Cottrell requested that the trial judge charge the jury not to infer malice from the use of a deadly weapon. The trial judge agreed to remove any instruction permitting the jury to infer malice from the use of a deadly weapon, but he refused to issue an express instruction that the jury could not infer malice from the use of a deadly weapon, noting that the jury has the right to make inferences from the evidence if it chooses to do so. The Court finds that the trial court’s instruction on malice “fully complied with Belcher [385 S.C. 597, 685 S.E.2d 802 (2009)] and did not charge the jurors that they could infer malice from Cottrell’s use of the weapon.” He instructed only that malice could be “inferred from conduct showing a total disregard for human life.”

Jury Note

Lastly, Cottrell argues the trial judge’s refusal to inform defense counsel of the contents of the jury note indicating the jury’s numerical division during sentencing deliberations violated his right to assistance of counsel, a fair jury trial, and a non-arbitrary verdict.

After deliberating for approximately two hours over Cottrell’s sentence, the jury sent a note to the trial judge indicating there were eleven jurors for the death penalty and one for life, asking, “What is the next step?” The trial judge did not disclose to the parties what the split was at that time, instead reading a redacted version without the numerical count, and informing them that he would instruct the jury to continue deliberations.

Accepting Cottrell’s argument that the trial judge should have disclosed the numerical split, the Court nevertheless finds that this was harmless error. “Because the trial judge concluded the jury had not yet reached a deadlock such that he needed to give an Allen charge, even if Cottrell had been notified of the numerical split, there was nothing further for him to do at the time to protect his rights.”

Fourth Circuit: Peer-to-Peer File Sharing is “Distribution” of Child Pornography per 18 USC §2252A

United States v. Dean Stitz (No. 16-4813)

The defendant was convicted for distributing child pornography after making files available for download on a peer-to-peer file sharing network. On appeal, he argues that the district court erred in finding a factual basis for his guilty plea, because he lacked specific intent to distribute child pornography.

The Fourth Circuit initially notes that the defendant failed to assert this argument below: “Appellant may have argued below that he did not have the specific intent to distribute child pornography and that his distribution was passive, but these arguments were not a challenge, even indirectly, to the factual basis of the plea agreement. Rather, they were made as part of a § 3553(a) variance argument, which does not implicate the factual basis underlying the plea.”

The Fourth Circuit goes on to hold that the mens rea necessary for conviction in cases of child pornography distribution is “knowingly,” which doesn’t require specific intent to distribute. The Court then joins a number of other federal circuits in holding that “where files have been downloaded from a defendant’s shared folder, use of a peer-to-peer file-sharing program constitutes ‘distribution’ pursuant to 18 U.S.C. §2252A.”

Fourth Circuit Vacates Procedurally Unreasonable Sentence; District Court Failed to Consider Defendant’s Arguments for Lesser Sentence

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.

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