Fourth Circuit OK’s Conviction & Sentence in Maryland Bank Fraud Conspiracy

US v. Junaidu Savage (No. 16-4704)

A federal grand jury for the District of Maryland indicted Junaidu Savage for bank fraud conspiracy, in violation of 18 U.S.C. § 1349 (Count One), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts Two and Three). The Government alleged that Savage and others devised a scheme to defraud Capital One Bank. Savage and a mutual friend, Mumtaz Sadique, recruited Jayad Conteh―a teller at a Capital One branch―to participate in the scheme. At Savage’s direction, Conteh used her position as a teller to access customer account information on the bank’s internal systems, including confidential personal identifiers necessary to make changes to an account, for accounts that contained at least $10,000. She would then send the account information to Savage. At trial, Jayad Conteh testified to several details of the scheme. For example, she described how Savage approached her about the plan, how Savage directed her to access bank accounts, and how she communicated the confidential customer account information to Savage.

Junaidu Savage was convicted by a jury of one count of bank fraud conspiracy and two counts of aggravated identity theft. He now appeals his conviction and sentence on several grounds.

First, he argues that the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of bank fraud conspiracy. The Fourth Circuit rejects this argument, noting the Government’s videotaped evidence of Savage discussing his participation in the scheme with Conteh’s family after she was arrested. In this recording, Savage made statements including, “I could have found myself in the same situation where she is too. Because I was part of it, you understand?”; “[w]e made a big mistake”; and “I will not hesitate to pay for [Conteh’s restitution]. I don’t think I made over $8,000.00 on it but I am not looking at that because I was part of it.”

Second, Savage argues that the district court erred in failing to conduct an in camera review to determine whether material required disclosure under the Jencks Act, 18 U.S.C. § 3500(b), or pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Savage refers to the prosecutor’s notes from a pre-trial meeting/interview with Conteh. Savage contends that the district court was required to conduct an in camera review of those notes to determine whether they are subject to disclosure. The Fourth Circuit holds that Savage was not entitled to an in camera review of these materials under either the Jencks Act or Brady, because his claims that the notes might contain Jencks or Brady material was speculative, and thus he had “failed to make a plausible showing that the files contain evidence that is material and favorable to the defense.”

Third, Savage argues that the district court erred by not providing his requested jury instruction on accomplice testimony, and by providing the jury with a written copy of the jury instruction on aiding and abetting liability. First, Savage complains that the jury instruction emphasized that a jury may rely on accomplice testimony without providing the rest of the model instruction warning that such testimony must also be viewed with caution. The Fourth Circuit finds no error, holding that the district court’s charge “substantially covered Savage’s requested instruction because it warned the jury to scrutinize all witness testimony, especially the testimony of biased or hostile witnesses” Additionally, Savage claims error from the district court’s ruling, when it “first declined the jury’s request for a written copy of all jury instructions but then acceded to the jury’s request for a written copy of the aiding and abetting liability instruction.” The Fourth Circuit is not convinced by this argument, noting that “the court has discretion whether and how to respond to the jury’s requests and here, the district court responded to the jury’s request for a written instruction on aiding and abetting by providing that instruction.”

Finally, Savage challenges the district court’s application of the sentencing guidelines, specifically complaining about enhancements for obstruction, loss amount, sophisticated means, and supervisory role. The Fourth Circuit affirms the district court’s ruling regarding each of these enhancements.

SC Supreme Court OK’s Prolonged Traffic Stop & Search

State v. Stepheno Jemain Alston (No. 2015-002134)

On March 28, 2011, Deputy Donnie Gilbert, employed with the Interstate Criminal Enforcement Team of the Spartanburg County Sheriff’s Office, was monitoring traffic on northbound Interstate 85. At approximately 1:00 p.m., Deputy Gilbert observed a green Hyundai Santa Fe pass him while continuing to strike the dotted lines of its lane of travel. Deputy Gilbert pursued the vehicle and initiated a traffic stop.

Approximately fifteen minutes after the traffic stop commenced, Deputy Gilbert completed the warning and pulled the paper off of a pad. Shortly thereafter, Deputy Gilbert asked Alston for consent to search the vehicle. Alston replied, “I’m just trying to figure all – – what all this is about.” In response, Deputy Gilbert advised he was simply asking a question, at which point Alston said “I mean, yeah, you can search it.” Deputy Gilbert further testified that he advised Alston of his right to refuse consent, but Alston had “already told [him] ‘yes’.” The search of the vehicle yielded 434 grams of cocaine hidden in the steering column.

Subsequently, a Spartanburg County grand jury indicted Alston for trafficking in cocaine. At the beginning of the trial, Alston’s counsel moved to suppress the evidence. During the pre-trial hearing, Deputy Gilbert recounted the details of the traffic stop and explained that the following factors provided him with reasonable suspicion that Alston was involved in criminal activity: (1) Alston’s luggage was covered by a blanket, which suggested an intent to divert attention to the luggage and away from the steering column; (2) Alston, unlike ninety-nine percent of other drivers who are pulled over, immediately asked why he was being stopped rather than wait for the officer’s explanation; (3) Alston was from outside of Atlanta, a “major hub for criminal activity in the southeast”; (4) Alston was driving on Interstate 85, which is “a major criminal activity corridor connecting Atlanta to many routes to the south and to the north”; (5) the vehicle was rented to a third party who was not present; (6) the vehicle was rented to a female, which is common for “drug trafficking organizations” because they do not think that law enforcement “recognize[s] criminal activity with a female”; (7) the vehicle was being driven in South Carolina and Alston stated he was driving to New Jersey, yet neither were identified as authorized states on the rental agreement; (8) Alston had a “household air freshener” in the vehicle, which can be “used as a masking agent to hide odors of other things, which could be drugs”; (9) house keys were placed on the rental key ring, which may have been an attempt to “personalize the vehicle”; (10) Alston’s stated travel plans did not comport with the terms of the rental agreement as he would be arriving in Georgia after the vehicle was due; (11) Alston stated he intended to pick up his mother for Mother’s Day, but Mother’s Day, was a month and a half away; and (12) Alston stated he had six children but gave the ages for seven children when asked. The trial judge denied Alston’s motion to suppress.

On certiorari, Alston contends Deputy Gilbert did not have probable cause to stop Alston’s vehicle for a traffic violation, nor did he have reasonable suspicion to support a brief investigatory stop solely based on his observation that Alston was drifting within his own lane of travel. Alternatively, even if the initial stop was proper, Alston maintains that Deputy Gilbert impermissibly exceeded the scope of the traffic stop as he had neither (1) a reasonable and articulable suspicion of illegal activity to warrant the continued detention nor (2) Alston’s consent.

Regarding the propriety of the initial traffic stop, the Court holds that, “depending on the totality of the circumstances, a motorist who is observed repeatedly weaving within the lane of travel and striking the dotted lines marking this lane may be subject to a traffic stop.”

Having determined that the initial stop was valid, the Court turns its attention to Alston’s second argument, and analyzes whether: (1) Deputy Gilbert had an objectively reasonable and articulable suspicion illegal activity had occurred or was occurring to extend the duration of the stop; or (2) the detention became a consensual encounter.

The court finds that the following facts gave rise to reasonable suspicion on behalf of Gilbert: (1) inconsistencies in Alston’s stated travel plans and the terms of the rental agreement, (2) Alston’s statement that he intended to stay in New Jersey for “about a week,” until Monday, April 2, 2011, the date the vehicle was to be returned to a location outside of Atlanta, and (3) Alston’s claim that he intended to bring his mother back with him for Mother’s Day, which was a month and a half away. The court simultaneously questions the significance of the remaining factors the Gilbert identified, but nevertheless finds that there were sufficient facts for the trial judge to find reasonable suspicion of wrongdoing.

Regarding the question of whether Alston consented to Gilbert’s search, the Court notes the following testimony that took place during the suppression hearing: Deputy Gilbert expressly testified that Alston gave him consent to search the vehicle. Deputy Gilbert stated that, after he told Alston that he could refuse to give consent, Alston responded “then go ahead” and pointed to the car. Deputy Gilbert further testified that, in an effort to get a “yes” or “no” answer from Alston, he explained this right. According to Deputy Gilbert, Alston responded “yes” after receiving this explanation. Deputy Gilbert denied coercing Alston or producing his weapon during the encounter. Deputy Gilbert also maintained that Alston never withdrew his consent. The Supreme Court holds that “because Alston’s statements conflicted with Deputy Gilbert’s testimony, it was within the province of the trial judge, as the trier of fact, to determine this issue of credibility.”

Fourth Circuit: Traffic Stop Violated Defendant’s Fourth Amendment Rights, Conviction Reversed

U.S. v. Brian Bowman (No. 16-4848)

Brian Bowman appeals the district court’s denial of his motion to suppress evidence recovered from a dog sniff conducted after an already-completed traffic stop. The Fourth Circuit concludes that the police officer had neither Bowman’s consent to extend the traffic stop nor a reasonable, articulable suspicion of ongoing criminal activity to justify doing so. Accordingly, the prolonged traffic stop abridged Bowman’s right under the Fourth Amendment to be free of unreasonable seizures.

In the early morning hours of June 20, 2015, Waycaster was patrolling U.S. Route 25 in Henderson County, North Carolina. He received a tip from the Drug Enforcement Agency (DEA) that two individuals suspected of transporting methamphetamine from Atlanta to the Asheville and Hendersonville areas were possibly driving “a red, older model Lexus” in the area. Additionally, the DEA provided the license plate number for the vehicle. At about 3:40 a.m., Waycaster spotted a red 1998 Lexus traveling north on U.S. Route 25 and followed in his patrol vehicle. Rather than stop the vehicle based on the information provided by the DEA, Waycaster was “looking for [his]own infractions . . . for [his own] reason to stop the vehicle.” According to Waycaster, the red Lexus weaved over the fog line and accelerated up to a steady 10 miles per hour over the speed limit, leading Waycaster to believe that the driver might be operating under the influence of alcohol or drugs. Waycaster stopped the Lexus. Bowman was the driver, and Homero Alvarez occupied the front passenger’s seat. They both appeared nervous.

Waycaster instructed Bowman to sit in Waycaster’s patrol vehicle while he ran a check on Bowman’s driver’s license and vehicle registration. Bowman complied and sat in the patrol car’s front passenger’s seat. After speaking with Bowman, Waycaster did not believe he was driving under the influence and issued him a warning for speeding and unsafe movement of the vehicle. Waycaster then completed the traffic stop by returning Bowman’s driver’s license and registration and shaking his hand. As Bowman began to exit the patrol vehicle, Waycaster asked if he could speak with Bowman further. Bowman consented and remained in the patrol car. Waycaster asked Bowman additional questions about where Bowman was going that evening.

Waycaster then stated to Bowman, who was still seated in the patrol car, that he “was going to go ask [Alvarez] questions if you don’t mind, okay?” Bowman responded, “okay,” and remained in the vehicle. Then, as Waycaster was getting out of the patrol car, he told Bowman, “just hang tight right there, okay,” to which Bowman said, “oh, okay.” Waycaster testified that at this point, Bowman was “not free to get out of that police car to leave” because Waycaster had developed from the traffic stop alone a reasonable suspicion of criminal activity sufficient to detain Bowman further. Waycaster then walked to the passenger side of the Lexus and began posing questions to Alvarez about where they had been that morning. Alvarez gave an inconsistent story.

Waycaster asked for permission to search the Lexus, but Bowman refused. Once again, Waycaster told Bowman to “hang tight, okay” and then removed Alvarez from the Lexus, frisked him for weapons, and placed him in the patrol car with Bowman. A K-9 officer was summoned who then conducted a pass around the outside of the Lexus—and then on the interior of the vehicle—and received an alert from the dog for the presence of illegal narcotics. Subsequently, Waycaster and the K-9 handler conducted a search of the interior of the Lexus and found a quantity of methamphetamine, digital scales and containers of ammunition.

After Bowman moved to suppress the drugs, the magistrate judge concluded that “[u]nder the totality of the circumstances, a reasonable person in Defendant Bowman’s position would not have felt free to leave and terminate the traffic stop after being directed by Trooper Waycaster to remain in the patrol car while the officer questioned the passenger.” Nonetheless, the magistrate judge concluded that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.”

On appeal from the denial of his motion to suppress, it is undisputed that the initial traffic stop was complete when Waycaster issued Bowman a warning citation, returned his license and registration, and shook his hand. It is likewise undisputed that Bowman subsequently agreed Waycaster could ask him additional questions, which Waycaster did for approximately 40 seconds. Thus, Bowman concedes that this 40-second colloquy in the patrol car was a consensual encounter. However, he maintains that this brief consensual encounter became a seizure for Fourth Amendment purposes at the moment that Waycaster directed him to “hang tight” in the patrol car while Waycaster questioned Alvarez. The Fourth Circuit agrees, holding that “when Waycaster directed Bowman to remain in the patrol car after asking the additional questions, the encounter was no longer a consensual one but instead constituted a nonconsensual seizure.”

The Court goes on to consider whether Waycaster had reasonable suspicion to detain Bowman at the time he ordered Bowman to remain in the patrol car. The Court sequentially rejects all of the Government’s alleged bases for reasonable suspicion:

  • (1) nervousness (“a driver’s nervousness is not a particularly good indicator of criminal activity, because most everyone is nervous when interacting with the police”);
  • (2) the presence of clothing, food, and energy drinks in the car (“entirely consistent with innocent travel such that, in the absence of contradictory information, it cannot reasonably be said to give rise to suspicion of criminal activity”);
  • (3) Bowman’s uncertainty about the address of his passenger’s girlfriend (“Bowman told Waycaster several times that the address had been entered into his car’s on-board GPS as he was unfamiliar with the area.”)
  • (4) Bowman’s recent purchase of vehicles (“Without more, this factor is totally innocuous, and we accord very little weight to it.”)

SC Supreme Court: Pro Se Defendant Gave Up His Right to Counsel

Kenneth Hilton v. State (No. 2015-002140)

Kenneth Lee Hilton appeals the denial of post-conviction relief (PCR) claiming the PCR court did not obtain a knowing and intelligent waiver of his right to counsel before allowing him to represent himself at his PCR trial. The Supreme Court finds that the PCR court obtained a valid waiver of counsel, and affirms.

The court notes that in South Carolina there are two requirements the PCR court must meet before allowing a PCR applicant to proceed without an attorney. First, the court should make sure the applicant is aware of his right to counsel; second, the court should ensure the applicant understands the dangers and disadvantages of self-representation. The Court finds that in the colloquy before Hilton’s PCR trial, the court validly addressed both of these issues.

SC Supreme Court Grants Relief to Deported Jamaican Citizen

Gregg Taylor v. State (No. 2015-001118)

This is a post-conviction relief (PCR) matter in which Petitioner Gregg Taylor, a Jamaican citizen, pled guilty to a drug offense. Taylor resided in South Carolina for years with his wife and two children, all three of whom are United States citizens. In plea negotiations, Taylor’s primary concern was whether he would be subject to deportation. Plea counsel viewed Taylor’s grave concern with the prospect of deportation as a “collateral” issue, yet provided general assurances to Taylor that he would not be deported. As a result, Taylor pled guilty. The drug offense resulted in Taylor’s deportation. Taylor filed a PCR action, and the PCR court denied relief. The Supreme Court now reverses the PCR court.

The Court finds that counsel’s actual advice on the deportation issue was deficient as a matter of law. Counsel did inform Taylor he could face deportation, but counsel failed to adviseTaylor that his deportation was presumptively mandatory. The Court notes that counsel must do more than “discuss immigration” or advise Taylor he might face adverse immigration consequences. The Court further finds that Taylor “has demonstrated a reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

SC Supreme Court Reverses Granted PCR, No Relief in Meth Trafficking Case

Marshall Collins v. State (No. 2014-002397)

A jury convicted Marshall Collins of trafficking methamphetamine (third offense), and possession of a weapon during the commission of a violent crime. Collins’ conviction and sentence were affirmed on direct appeal. Collins later filed an application for PCR. The PCR judge issued an order granting Collins a new trial. The State petitioned for a writ of certiorari to review whether the PCR judge erred in finding trial counsel was ineffective in failing to request a continuance and failing to properly handle an expired plea offer. The Supreme Court now reverses the PCR court, denying relief to Collins.

Collins’ PCR application argued two grounds (1) that trial counsel failed to request a continuance when Collins was served with an additional indictment (for the weapon charge) on the morning of trial, and (2) that counsel failed to properly handle a plea offer that was made (and expired) prior to counsel’s appointment.

Though the PCR was granted below, the Supreme Court now rejects these arguments, reversing the PCR court. Regarding the continuance, the court reasons that counsel did ask for a continuance, without actually formally requesting one (on the morning of trial, counsel argued that the court should not allow the solicitor to proceed on the newly-indicted charge). Regarding the plea offer, the court notes that Collins failed to demonstrate that he would have accepted the expired plea offer if his new attorney had managed to revive it:

Consequently, the record is void of any testimony that Collins expressed a desire to accept the expired offer. More importantly, even if Collins wanted to plead guilty, there is no evidence or testimony from the solicitor that the expired offer was still available before trial, nor is there any evidence or testimony that a new offer existed for Collins to accept. Thus, Collins failed to demonstrate a reasonable probability that he would have accepted any offer, new or expired.



SC Supreme Court Reverses Court of Appeals: Trial Court Erred by Denying Defendant the Right to Represent Himself

State v. Lamont Antonio Samuel (No. 2105-002401)

In this case the SC Supreme Court clarifies the proper scope of a circuit judge’s inquiry under Faretta v. California, 422 U.S. 806 (1975), when a criminal defendant knowingly, intelligently, and voluntarily waives his right to counsel and requests to proceed pro se. Prior to his trial for murder, Lamont Antonio Samuel moved to represent himself under Faretta. The circuit judge denied his motion, finding Samuel was lying about whether he had or would have access to legal coaching in preparation for trial. The court of appeals affirmed, and the Supreme Court now reverses that decision.

On the day his case was called to trial, Samuel indicated he was dissatisfied with defense counsel and made a Faretta motion to waive his right to counsel and proceed pro se. During the hearing on that motion, Samuel stated that his mother had paid an attorney Mr. Grant some money to act as an informal consultant to Samuel, in order to help him properly represent himself. The trial judge summoned that Mr. Grant to the courtroom, and Grant denied having any such relationship with the defendant. The circuit judge denied Samuel’s request to proceed pro so, stating that Samuel’s and Grant’s conflicting testimony meant that Samuel was lying to her and attempting to manipulate the proceedings. Thereafter, Samuel proceeded to trial with his counsel and was found guilty.

We are unaware of any cases in which a circuit judge has relied on testimony from a third party witness, such as Grant, to determine whether a defendant has effectively invoked the right to proceed pro se. Moreover, whether Grant would be available to advise or coach Samuel throughout the trial relates to his competence to represent himself which, as discussed supra, is entirely irrelevant to the issue of whether he effectively invoked his right of self-representation. Rather, it is clear the circuit judge, with the best of intentions, was so concerned with Samuel proceeding pro se that she went beyond the scope of the question at hand using Grant’s testimony as the basis to prevent Samuel from invoking his constitutional right.

The court further discounts the relevance of Samuels’ dishonesty (assuming for the sake of argument that he was being dishonest in his testimony about his relationship with Grant), stating “even if Samuel’s testimony was misleading, this Court indicated in Barnes [413 S.C. at 3] that a defendant’s improper motive or unethical conduct is not enough to preclude him from exercising his right to self-representation.”

Justice Kittrdge dissents, arguing that the Faretta framework should be interpreted more broadly, “to allow for a trial court’s exercise of discretion where, as here, the knowingly, intelligently, and voluntarily asserted right of self-representation is accompanied by a circumstance that undermines the integrity of the proceedings and the orderly administration of justice.”

SC Supreme Court: No Mid-Trial Appeal for the State

State v. David Ledford (No. 2016-000791)

During the charge conference in Mr. Ledford’s trial for inflicting great bodily injury upon a child, there was a dispute between the parties regarding the proper jury instructions. Ledford’s proposed jury instruction included a requirement that he acted “willfully” in order for the jury to convict. Ledford explained his requested jury charge included the term “willfully” because the indictment alleged he “willfully” inflicted great bodily injury upon a child. He asserted that because the State included this level of intent in the indictment, the State was required to prove to the jury he committed the crime “willfully.” The State objected to the proposed jury charge, arguing the jury charge added an element to the offense that was not in the statute. The trial court determined Ledford’s requested jury charge was appropriate. Before the trial court could charge the jury, the State filed a notice of appeal with the court of appeals. The court of appeals promptly dismissed the State’s appeal, ruling the trial court’s decision to give the disputed jury charge was not immediately appealable. The Supreme Court granted certiorari to review the court of appeals’ order of dismissal.

The Supreme Court affirms the court of appeals’ dismissal of the appeal. The court acknowledges that it permits an immediate appeal by the State when there is “[a] pre-trial order granting the suppression of evidence which significantly impairs the prosecution of a criminal case.” The court declines to extend this to the present case.

An immediate appeal from a mid-trial ruling on a proposed jury charge is a different animal from an immediate appeal from a pre-trial evidentiary ruling which materially hampers the State’s prosecution of a case. Section 14-3-330(2) requires the State to show that the trial court’s decision to charge “willfulness” to the jury “in effect determines the action.” The State simply has not made that showing. The trial court’s decision to give the disputed charge might make it more difficult for the State to prove its case; however, it does not foreclose the possibility that the jury could find Ledford acted willfully in inflicting great bodily injury upon Child. Therefore, the trial court’s decision to give the disputed charge did not in effect determine the action.

The court further acknowledges that “There are countless situations in which a trial court’s mid-trial ruling could make the State’s prosecution of its case more difficult, and the State would still be prohibited from appealing the trial court’s decision if the jury returned a verdict of acquittal.” Nevertheless, the court notes that allowing appeals in circumstances like these “would result in the trial process becoming an unmanageable ‘stop-and-start’ enterprise.”

4th Circuit: SC Involuntary Manslaughter Not a “Violent Felony” Per the ACCA

U.S. v. Jenaro Middleton (No. 16-7556)

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On appeal, Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA. Applying the “categorical approach,” the Fourth Circuit concludes that involuntary manslaughter in South Carolina does not involve the requisite use of violent force, and reverses Middleton’s sentence.

In this appeal, Middleton argues that South Carolina involuntary manslaughter sweeps more broadly than the physical force required under the ACCA’s force clause. Middleton supports his argument by reference to  State v. Hambright, 426 S.E.2d 806 (S.C. Ct. App. 1992). There, the defendant Hambright illegally sold alcohol from his home to high school students. One child who bought alcohol from Hambright died after crashing his car into a telephone pole. The doctor who performed the driver’s autopsy testified that “alcohol was a significant contributing factor to [the driver’s] death,” and that his injuries must have been caused by “tremendous force.” A jury convicted Hambright of involuntary manslaughter, and the Court of Appeals of South Carolina upheld his conviction. According to Middleton, because Hambright used no violent physical force against the victim, South Carolina involuntary manslaughter is broader than the ACCA’s force clause and therefore does not qualify as a violent felony. The Fourth Circuit agrees.

SCOTUS: Guilty Plea Doesn’t Bar a Defendant from Challenging the Constitutionality of his Statute of Conviction

Class v. United States (No. 16-424)

A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, §5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty. The written plea agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After his sentencing, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims.

The Supreme Court holds that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. The Court notes that Class’ constitutional argument implicates “the very power of the State to prosecute the defendant,” and consequently a guilty plea cannot by itself bar it.  The Court further notes that Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. “Class challenges the Government’s power to criminalize his (admitted) conduct and thereby calls into question the Government’s power to constitutionally prosecute him.” A guilty plea does not bar a direct appeal in these circumstances.

Fourth Circuit Affirms Crooked Cop’s Conviction in WV

United States v. Mark Cowden (No. 17-4046)

Cowden, a former lieutenant with the Hancock County Sheriff’s Office in West Virginia, was charged with several federal crimes in connection with his assault on Ryan Hamrick. Evidence at trial showed that during a traffic stop, Ryan Hamrick resisted another officer’s attempt to place him under arrest. In the course of that struggle, Hamrick received superficial injuries, and he was taken to the police station. As several officers (including Cowden) were escorting Hamrick into the police station, Hamrick pulled away from the officers. Hamrick was cuffed at the time. Despite the fact that the other officers did not perceive Hamrick’s behavior as a threat, but rather he was “just being a pain,” Cowden pulled Hamrick to the side and threw him against a wall. Despite the fact that he was no longer resisting, Cowden again pulled Hamrick’s head away from the wall and slammed his head and face into the wall. Cowden then struck Hamrick on the back of the head with a closed fist, then grabbed Hamrick by the throat, hit him in the head, and yelled at him. The other officers intervened at that point, and observed that Hamrick was bleeding from his nose and mouth. At Cowden’s subsequent criminal trial, the jury heard evidence of two prior criminal investigations involving Cowden’s use of force. Both incidents involved Cowden using excessive force against individuals without provocation. The district court instructed the jury to utilize this evidence pursuant to Rule 404(b), to show the lack of accident or mistake.

Cowden first argues that the court abused its discretion by admitting the 404(b) evidence. The court rejects this argument, noting that the evidence of Cowden’s prior violent conduct was (1) relevant, (2) probative of an essential element of the offense, (3) reliable, and (4) the prejudice of this evidence did not substantially outweigh its probative value. Bearing this in mind, the court holds that the district court did not abuse its discretion in admitting this evidence.

Next, Cowden argues that the trial court erred by denying his motion for directed verdict as to the 18 U.S.C. 242 count. This statute, which criminalizes “deprivation of rights under color of law,” requires the government to show that the defendant willfully deprived an individual of his constitutional rights while acting under the color of law. Cowden takes issue with the government’s alleged failure to show that he acted willfully. The court rejects this argument, noting that Hamrick was restrained at the time that Cowden attacked him, and that there were six other officers present with Cowden at the time, and several of those officers testified that Cowden’s actions were not justified or reasonable.

Next, Cowden argues that the district court erred in failing to instruct the jury on lesser-included offenses. Cowden complains that a 242 violation is a misdemeanor if no bodily injury results, and Cowden asserts that the court’s instructions did not adequately convey that fact to the jury. The court rejects this, ruling that the court did instruct the jury of this distinction, it merely did so in language that was different from the instruction Cowden proposed at trial. The court finds no error with the court’s instructions on this point of law.

Finally, Cowden argues that the district court erred in ordering him to provide restitution for Hamrick’s injuries, since Hamrick sustained injuries at the scene of his arrest, prior to his encounter with Cowden. The court rejects this argument without much explanation, simply pointing to the “overwhelming evidence presented regarding the injuries Hamrick sustained as a result of Cowden’s actions.”

Fourth Circuit: NC Voluntary Manslaughter is a Violent Felony Per the ACCA

United States v. Antoine Darrell Smith (No. 17-4015)

Smith pled guilty to one count of PWID cocaine, and one count of possession of ammunition by a convicted felon. Smith’s PSI indicated that he was subject to enhanced penalties under the ACCA, due in part to his North Carolina conviction for voluntary manslaughter. Smith argued that the NC statute authorizes conviction for mere negligence or recklessness, and therefore it cannot give rise to ACCA enhancement. After the district court rejected this argument, Smith raises it before the Fourth Circuit.

The Fourth Circuit rejects Smith’s reasoning, holding that the NC statute does not permit conviction simply for negligent or reckless conduct. The court notes that “what separates voluntary manslaughter from murder is not the absence of intent but rather the circumstances in which that intent is exercised, namely, as we have noted, in the heat of passion or under provocation.” The court concludes by stating: “Simply put, voluntary manslaughter in North Carolina requires an intentional killing. It thus plainly involves ‘the use, attempted use, or threatened use of physical force against the person of another.'” The lower court’s ruling is therefore affirmed.

Fourth Circuit Affirms Convictions in Child Pornography Case

United States v. Miltier (No. 16-4729)

This case stems from a 2013 FBI investigation, during which images of child pornography were downloaded from an IP address allegedly assigned to Miltier. A search warrant was executed at Miltier’s home, and a forensic review of his laptop and a flash drive revealed child pornography. Both devices were found in Miltier’s bedroom. There was other evidence that Miltier had used both devices (usernames, email addresses, Miltier’s admission that he used the computer, photographs of Miltier on the flash drive).

During his trial, Miltier moved for a directed verdict, arguing (1) the government failed to produce evidence that he knowingly received or possessed child pornography, and (2) the government failed to produce evidence of the required interstate nexus which would trigger federal jurisdiction. Miltier’s motion was denied by the trial court. On appeal, the court affirms this ruling, rejecting Miltier’s arguments. The court recounts the above-noted evidence showing Miltier’s use of the computer in question, and holds that a “reasonable juror could have concluded that Miltier knowingly received and possessed child pornography.” Regarding the jurisdictional question, the court rejects Miltier’s argument, noting that there was evidence at trial that the images in question were downloaded from the internet, which would trigger federal jurisdiction.

Additionally, Miltier argues that the trial court erred in its jury instruction that authorized conviction based upon a finding that his computer moved in interstate commerce. The court holds that the movement of a computer in interstate commerce is sufficient to authorize conviction (as far as the interstate nexus requirement is concerned).

Lastly, the court rejects Miltier’s argument that the court’s above-noted instruction violated his Fifth Amendment rights in that it constituted an amendment to his indictment, violating his right to be indicted by the grand jury. The court characterizes the discrepancy in question as a “mere variance,” noting that Miltier did not attempt to argue that the variance surprised or prejudiced him.

SC Supreme Court Rejects Domestic Violence Equal Protection Claim

State v. Elias Walker (No. 27763)

In this appeal, the defendant argues that his ineligibility for early parole under 16-25-90 violates his constitutional right to equal protection. The applicable statute permits an offender to receive early parole for their crime against a “household member” if their attorney presents credible evidence of ” a history of criminal domestic violence . . . suffered at the hands of the household member.” Walker, who killed his father, argues that he is entitled to the same consideration under the law that other “household members” are, pursuant to this statute.

The Supreme Court rejects this argument, noting that Walker has failed to mount a valid equal protection claim, holding that “Walker is not similarly situated to other domestic violence victims included in the definition of a household member.”

SC Supreme Court: PCR Granted in Armed Robbery Case, Counsel’s Deficient Performance Requires Retrial

Stephen Smalls v. State (No. 27764)

In this PCR case, the Court of Appeals held that trial counsel was deficient, but found that the evidence against Smalls was overwhelming, undermining his Strickland claim. The Supreme Court now reverses, finding that the evidence was not overwhelming, and therefore Smalls is entitled to relief.

The underlying case involves an armed robbery of a Bojangles restaurant in Columbia. As two employees were closing the restaurant for the evening, a man burst in the door with a shotgun, demanding money. Police who responded to the scene recovered the shotgun in the area where the alleged perpetrator fled from the scene. A fingerprint expert determined that Smalls’ fingerprints were on the shotgun. An investigator created a photo lineup and showed it to both Bojangles employees. One employee identified Smalls, the other did not identify anyone (though he narrowed it down to two people one of which was Smalls).

The contested issues on appeal are as follows: (1) that Smalls’ trial attorney failed to impeach the Bojangles employee when it was revealed that the State dismissed a pending carjacking charge against him on the morning of Smalls’ trial, and (2) trial counsel failed to object when one of the State’s other witnesses implied that Smalls had obtained the shotgun used in the robbery by committing a burglary approximately one year before the armed robbery took place.

Regarding the impeachment issue, trial counsel erroneously believed that the Bojangles employee could not be impeached with a charge that had been dismissed. The magnitude of this error was revealed at the PCR hearing, when the employee revealed that he had repeatedly told the solicitor that he did not want to participate in the prosecution of the armed robbery case against Smalls, and that the only reason he agreed to testify against Smalls was because the solicitor dropped the pending carjacking charge against him (the employee).

Regarding the prior burglary, one of the State’s witnesses testified that the shotgun used in the robbery was stolen, “it was taken in a burglary.” During the State’ presentation of this evidence, the following exchange took place, without any objection from trial counsel:

Q: To make it perfectly clear, the shotgun wasn’t stolen from the defendant’s house in 1999?


A: No, it was not.


Q: He burglarized somebody else’s house?


A: That’s correct.


Q: So is there any reason why his fingerprint would be on this weapon-


A: Not that I know of, sir.


Q: -other than he robbed the Bojangles?


A: That’s correct.

Having found that counsel was deficient on both of these grounds, the Supreme Court then turns its consideration to the question of whether the evidence against Smalls was overwhelming, to the extent that it would undermine his Strickland claim. The Court combs through several of its precedents on this issue, and ultimately clarifies the standard in cases such as these: “for evidence to be overwhelming such that it categorically precludes a finding of prejudice – as we found it did in Rosemond and Harris – the evidence must include something conclusive, such as a confession, DNA evidence demonstrating guilt, or a combination of physical and corroborating oevidence so strong that the Strickland standard of “a reasonable probability . . . the factfinder would have a reasonable doubt” cannot possibly be met. Turning to the present case, the Court notes that “when potentially strong evidence such as the fingerprint and [the Bojangles employee’s] identification is tainted by a significant error of counsel, it should not be considered a part of “overwhelming evidence” that precludes a finding of prejudice.” The Court went on to specifically say that “We do not believe the jury could have heard about the dismissal of the charge without seriously questioning the credibility of everything [the Bojangles employee] said, including he pre-trial identification of Smalls as the man who committed the robbery.” (Note: in FN 8 of the published opinion, the Court notes that”the annals of criminal law are rife with instances of mistaken identification,” and “eyewitness evidence is inherently imperfect.”).

Bearing all of this in mind, the Supreme Court reverses, granting Smalls’ PCR.


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