No Error Where Distrcict Court Doesn't Know Whether Guidelines Are Still Mandatory

US v. Go: Go was a gopher in a methamphetamine distribution conspiracy. For his role in the offense - mostly running errands related to the conspiracy in return for methamphetamine - he was convicted after a jury trial of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, Go's advisory Guideline range was determined to be 188 to 235 months. Go argued for a variance down to the 10-year mandatory minimum, while the Government argued for a sentence at the bottom of the advisory Guideline range. The district court imposed a sentence of 188 months in prison.

On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:

[The presumption of reasonableness] may mean that the guidelines are still mandatory. I don't know. But it sure sounds like when they say that they're reasonable that they're saying if a judge gives a sentence outside the guidelines, then it's per se not reasonable.

There are cases that say that it is not a proper application of the law and maybe some day the Supreme Court will decided that [see Rita, Gall, etc.]. But the point is at this moment, I'm bound to apply the guidelines as a reasonable range of punishment.

* * *

Congress has set forth a range of punishment that I have to choose from, and that range of punishment is what I said earlier, 188 to 235 months.

The Fourth Circuit rejected Go's argument, deriding his "selective" use of the record, and holding that the district court ultimately imposed the sentence it did because it was consistent with the other sentences handed out in the case. The court held that it was "clear from the sentencing record that the district court was not under the misapprehension that it could not impose a sentence outside of the advisory Guidelines range." The court also rejected Go's argument that his sentence was unreasonable.

It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.

Court Affirms Drug & Gun Convictions

US v. Wallace: Wallace was convicted by a jury of several drug and gun offenses and sentenced to 248 months in prison. Wallace's activities came to light after local police were called to an apartment he shared to investigate a domestic disturbance. A maroon van with two men in it was seen leaving the apartment complex and later stopped. Wallace and a codefendant (who pleaded guilty) were inside, along with several firearms, drugs, and cash.

On appeal, the Fourth Circuit affirmed both Wallace's convictions and his sentence. The court rejected Wallace's argument that he should have been granted a mistrial or immediate curative instruction when a Government witness started to discuss the details of the domestic dispute, which had been ruled off limits in a pretrial order. Counsel objected immediately, but waited until a break in the proceedings to ask for a mistrial or curative instruction. The trial court denied the mistrial and gave a curative instruction during the closing jury charge. The Fourth Circuit found no error. The court also rejected Wallace's challenge to the sufficiency of one of the firearm convictions, using a plain error review (counsel failed to move for a judgment of acquittal at trial). Finally, the court held that Wallace's sentence, within the Guideline range, was reasonable.

Government Victory in Mann Act Appeals

US v. Singh: Singh and co-defendant Patel were managers of motels in Martinsburg, West Virginia. They became involved in a prostitution ring run by Susan Powell in which prostitutes recruited from West Virginia, Virginia, and Maryland would use rooms in Singh and Patel's motels to conduct their business. Powell would communicate with the prostitutes using the motel switchboards and had an arrangement with Singh and Patel wherein they would be paid for use of the rooms, but the rooms would be empty early enough in the afternoon to allow them to be rented to "regular" customers. Singh, Patel, and the company that owned Patel's motel were charged and convicted of conspiracy to violate the Mann Act, substantive violations of the Mann Act, conspiracy to launder money, and substantive money laundering counts. An order of forfeiture seizing more than $670,000, in addition to the two motels. Following post-trial motions, the district court vacated all the convictions against the company (and accompanying forfeitures) and the money laundering convictions against Singh and Patel. They were sentenced to 15 months in prison.

The Government appealed the district court's post-trial rulings and the Fourth Circuit reversed. As to the money laundering charges, the court rejected the district court's reasoning that the money Powell's prostitutes paid to Singh and Patel for the use of the motel rooms were separate from the underlying Mann Act offense. The court concluded that the Mann Act violation was complete once money was paid for sex and the later passage of some of those funds to the motel managers promoted that unlawful activity. The court also reversed the district court's conclusion regarding the company, holding that Patel's actions at his motel were undertaken within the scope of his employment.

Singh and Patel also appealed. First, the challenged the sufficiency of the evidence supporting the Mann Act convictions. They argued that they neither induced the prostitutes' interstate travel nor knew of Powell's inducements. The Fourth Circuit rejected that argument, noting that the Singh and Patel required the prostitutes to fill out registration forms on which they listed their out of state addresses. The court also noted that given Martinsburg's proximity to Virginia, Maryland, and Pennsylvania, it was reasonable that Singh and Patel knew that Powell would recruit from those areas. Second, the court rejected the argument that the district court erred by preventing Singh and Patel from offering evidence that Powell's daughters were involved in the prostitution ring and Powell made a deal with the Government party to shield them from prosecution. Third, the court rejected Singh and Patel's Batson argument regarding the only minority juror struck by the Government. Finally, the court held that Singh and Patel were properly tried together.

As a result, the entire case was remanded to the district court for resentencing in light of the original verdict being reinstated.

Jury Trial Waiver Without Court Examination OK'd

US v. Boynes: Boynes was charged with drug and firearm offenses arising from "a cocaine deal that degenerated into a murder." Prior to trial, Boynes requested new counsel, alleging that the relationship with his initially appointed counsel had become "adversarial." New counsel was appointed. Eventually, Boynes also requested that his new counsel be replaced, due to the "adversarial" nature of their relationship. That request was denied and trial preparations went forward. Prior to trial, counsel met with Boynes, who requested that he be tried by a judge, rather than a jury. Counsel filed the motion, the Government agreed, and the district court accepted the waiver. No hearing was held on the motion to waive a jury trial.

At trial, Boynes was convicted on all counts. Before sentencing, Boynes filed a bar complaint against counsel, resulting in the appointment of a third attorney. That attorney then filed a motion for a new trial arguing, for the first time, that Boynes's waiver of a jury trial was not knowing and voluntary. After a hearing, which included testimony from counsel #2 but not Boynes, the district court denied the motion. Boynes was sentenced to life in prison, plus 480 months.

On appeal, Boynes argued that his jury trial waiver was not knowing and voluntary. Specifically, he argued that the district court should have undertaken some on the record inquiry into Boynes's wishes, particularly given the strained relationship he had with counsel. The Fourth Circuit disagreed, 2-1, and upheld the conviction. The court held that, although it is better practice to make such inquiries, it is not required by either the Rules of Criminal Procedure or the Sixth Amendment. Dissenting, Judge Gregory argued that the determination of whether a waiver of a jury trial is knowing and voluntary cannot be made post-trial and therefore must be resolved before a bench trial goes forward.

Court Affirms Involuntary Servitude Convictions Against Hearsay, Crawford Challenges

US v. Udeozor: Udeozor: and her (now former) husband helped a 14-year old Nigerian girl emigrate to the United States. They told her family that she would be enrolled in school, but she wasn't. In fact, she became basically an indentured servant, working for the family for five years without payment or any kind of compensation. She was repeatedly subjected to physical, emotional, and (by Udeozor's husband) sexual abuse. Udeozor was convicted of conspiracy to hold another in involuntary servitude and harboring an alien for commercial advantage or private gain. She was sentenced to 87 months in prison and to pay restitution to the victim of over $100,000.

On appeal, the Fourth Circuit rejected several of Udeozor's arguments on the way towards upholding the convictions. First, the court held that the district court did not err by admitting evidence of Udeozor's husband's sexual abuse of the victim during Udeozor's trial. The court concluded that the use of sexual abuse to maintain control of the victim was part of the conspiracy between Udeozor and her husband, even if there was conflicting evidence as to whether she knew about the abuse. Second, the court held that recordings of phone conversations between Udeozor's husband and the victim were properly admitted as statements against penal interest under FRE 804(b)(3). The court also rejected Udeozor's confrontation argument, holding that her husband's statements (made to the victim who was acting at police behest) were not "testimonial" and thus not subject to a Crawford analysis. Finally, the court held that the district court did not abuse its discretion by using a two-page verdict form, with three special findings (on sentencing issues) on the second page.