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SAMARITAN NEWSLETTER – 06-22-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with appeals under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning published district court and court of appeals case for the week in review.  Rusty – 417 901 3000 – Eddie 417 818 1938.

 

APPEAL/CR.RIS. The Fifth Circuit denied the Government’s appeal in the grant of a CR.RIS motion in United States v. Joel Jean, 2024 U.S. App. LEXIS 17274 (5th Cir. July 15, 2024). Joel Francois Jean was incarcerated in Texas since 2009 after pleading guilty to conspiracy to possess with intent to distribute cocaine and possession of a firearm in furtherance of a drug-trafficking offense. At sentencing, he was classified as a career offender due to three prior Texas controlled-substance convictions, resulting in a Guidelines range of 352 to 425 months but he received a 292-month sentence. Subsequent legal decisions (Mathis v. United States, United States v. Hinkle, and United States v. Tanksley) redefined what constitutes a controlled-substance offense meaning Jean would not be classified as a career offender if sentenced today. Jean filed a motion for compassionate release in 2023, arguing that changes in the law, sentence disparities, and his rehabilitation warranted release. The district court found that the non-retroactive changes in the law combined with Jean's extraordinary rehabilitation, constituted extraordinary and compelling reasons for compassionate release. The court noted Jean's significant efforts towards self-improvement and the support he received from Bureau of Prisons officials. Consequently, Jean was resentenced to time served, followed by eight years of supervised release. The Government appealed the district court's decision. The Fifth Circuit reviewed the case and affirmed the district court's grant of compassionate release. The appellate court held that district courts have the discretion to consider non-retroactive changes in the law, along with other factors such as extraordinary rehabilitation, when determining whether extraordinary and compelling reasons exist for compassionate release. The court emphasized that this discretion is consistent with Supreme Court precedent and Congressional intent and noted that the Sentencing Commission's November 1, 2023 Amendments support this interpretation.

 

APPEAL/CR.RIS/CHANGE IN THE LAW. The Fourth Circuit vacated and remanded United States v. Erscell Worlds, 2024 U.S. App. LEXIS 17412 (4th Cir. July 16, 2024). Erscell Julius Worlds appealed from the denial of his motion for compassionate release. On appeal, Worlds asserts that the district court abused its discretion in concluding that changes in sentencing law could not constitute an extraordinary and compelling reason for release. The court agreed and vacated and remanded for further proceedings. After the district court’s ruling, the court decided United States v. Davis, 99 F.4th 647, 656 (4th Cir. 2024), which held that a change in sentencing law can constitute an extraordinary and compelling reason for compassionate release. This case is very similar to Davis. In both, the defendants were sentenced as career offenders but, thanks to a change in sentencing law, would not be considered career offenders if sentenced today. In both, the defendants sought compassionate release on the basis of this sentencing disparity. And the district court in Davis, like the district court here, found that this request amounted to an improper collateral attack and that relief, in any, needed to be sought through 28 USC 2255. Davis, 99 F.4th at 656.

 

CR.RIS/AMENDMENT821/REHABILITATION/AGE/MEDICAL. The District of New Mexico granted a CR.RIS/821 Amendment motion in United States v. Polly Hopper, 2024 U.S. Dist. LEXIS 125967 (D. N.M. July 16, 2024). The Court imposed a sentence on Oct. 27, 2015, committing Hopper to the custody of the Bureau of Prisons for a term of 292 months, based on a Total Offense Level 38 and Criminal History Category III, resulting in a Guideline sentencing range of 292-365 months. The defendant committed the instant offense while under a criminal justice sentence. On Feb. 27, 2015, after a jury trial, Hopper was found guilty of Kidnapping and Conspiracy. Hopper filed her third Motion for Compassionate Release requesting compassionate release based on age, rehabilitation, and serious health conditions. Hopper's request for compassionate release explained that her COPD, uncontrolled hypertension, and myocardial mild ischemia present extraordinary and compelling reasons justifying compassionate release. Hopper has completed just below 50% of her sentence. Hopper is now 70 years old with many medical conditions including but not limited to colon cancer, high blood pressure, heart disease, and glaucoma. Sentence reduced from 292 months to 262 months.

 

CR.RIS/DISPARITY/CCE. The Middle District of Georgia granted a CR.RIS motion in United States v. Pinkney Clowers, 2024 U.S. Dist. LEXIS 127206 (M.D. Ga. July 19, 2024). More than 30 years ago, a jury convicted then 21-year-old Clowers of four crimes related to a drug conspiracy that occurred from June 1988 to June 1992. Among other things and most importantly for this motion a jury convicted Clowers of Count 18, "engag[ing] in a continuing criminal enterprise . . . from which . . . [he] obtained substantial income and resources" in violation of 21 USC 848(a). A violation of that criminal statute mandated a life sentence even if the enterprise from which a defendant derived "substantial income" included only 1.5 kilograms of cocaine base, commonly referred to as "crack." As his other convictions were vacated, Count 18 and its mandated life sentence is the only one at issue today. Now 52 years old Clowers has exhibited model behavior as a prisoner: he obtained his GED, earned more than 1,400 days of good-time credit, and participated in over 900 hours of programming offered by the Bureau of Prisons. Further, he has only received two disciplinary reports in his 31 years spent in federal prison—the last one in 1994 for possessing a cigarette lighter. The United States Sentencing Commission, as of Nov. 2023, has amended and enacted a Guideline that allows the Court to finally release him after serving more than ten years of an unusually long sentence. There were at least 18 of the Court's colleagues who had already rejected the Government's position that the Sentencing Commission exceeded its delegated authority. Like its colleagues, this Court holds that the Sentencing Commission did not exceed its delegated authority when it adopted USSG1B1.13(b)(6). Section 1B1.13(b)(6) requires Clowers to have served ten years of an unusually long sentence. Here, Clowers has already served that amount three times over, and the Government even concedes that 31 years is "more than sufficient punishment for his crimes." The drug quantity finding by the judge in this case, which would now be found unconstitutional under Alleyne, raised defendant’s mandatory minimum from a 20-year sentence to one for life. This is a disparity that is glaringly noticeable. The Southern District of Florida held that Alleyne's predecessor and predicate, Apprendi v. New Jersey, 530 U.S. 466 (2000), qualified as a "change in the law." United States v. Parson, No. 9:95-cr-08089, (S.D. Fla. Apr. 19, 2024). In Apprendi, the Supreme Court held that a jury must find any fact that would increase a mandatory maximum sentence. 530 U.S. at 490. Supreme Court rulings that disallow judges to find drug quantities and require juries to undertake that task must represent definitive "changes" in sentencing law. The Court ordered immediate release.

 

CR.RIS/MEDICAL. The District of New York granted a CR.RIS motion in United States v. Griselda Muniz, 2024 U.S. Dist. LEXIS 128097 (D. Utah July 19, 2024).

The defendant plead guilty to one count for possession of methamphetamine with intent to distribute after 40 pounds of methamphetamine was found in her motor vehicle. The Government also charged her with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, but this charge was later dropped. Defendant was sentenced to 96 months of incarceration and 60 months of supervised release. The defendant argued that her motion was supported by her medical circumstances, and the BOP's ineffectiveness in providing her proper care. The defendant alleged she has a blood clot disorder, and the BOP has demonstrated that it cannot provide her the care she needs. Specifically, the defendant alleged that the BOP did not provide her with prescribed blood thinners for the first three years of her incarceration, which caused her to lose vison in her left eye and feeling in the left side of her body. Defendant further alleged that she reported these symptoms to the FCI Dublin health staff and her complaints were met with indifference. Eventually, the BOP did take the defendant to see outside doctors and she was placed on blood thinners for her condition. The defendant's family circumstances and her medical circumstances constitute extraordinary and compelling reasons to warrant compassionate release, and her sentence was reduced to time served.

 

CR.RIS/REHABILITATION. The District of Montana granted a CR.RIS motion in United States v. Wally Boggs, 2024 U.S. Dist. LEXIS 126185 (D. Mont. July 17, 2024). Boggs was convicted following a jury trial of two counts of aggravated sexual abuse in violation of 18 USC 1153 and 2241(a)(1). The jury acquitted Boggs of one count of kidnapping. The Court sentenced Boggs to 290 months imprisonment on each count, running concurrently, followed by 5 years' supervised release on each count, running concurrently. Boggs claimed that the imposition of an unusually long sentence, a change in the law, and his record of rehabilitation and contributions to the prison community constituted extraordinary and compelling circumstances. Boggs has been incarcerated for almost 19 years, a length of time that provides just punishment and reflects the seriousness of the offense for his admittedly reprehensible crimes. Boggs had no criminal history at the time of the offense, and he reported no disciplinary record while incarcerated. These facts demonstrate that Boggs has been deterred from future criminal conduct. Sentenced reduced to time served which was stayed for 180 days.

 

CR.RIS/MEDICAL/AGE. The District of Maryland granted a CR.RIS motion in United States v. Nathaniel Dawson, 2024 U.S. Dist. LEXIS 125619 (D. Md. July 17, 2024). Nathaniel Dawson, Sr., who is 85 years old and serving two life sentences. On Nov. 9, 1994, a jury convicted Dawson of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 USC 846 (Count One); conspiracy to kill a government witness in violation of 18 USC § 371 and 18 USC 1512(a)(1)(A), (C) (Count Three); murder to prevent the attendance or testimony of a person in an official proceeding in violation of 18 USC 1512(a)(1)(A) (Count Four); and murder to prevent the communication of a person with law enforcement officials in violation of 18 USC 1512(a)(1)(C) (Count Five). A BOP record dated May 16, 2024, indicates Dawson has been diagnosed with atrial fibrillation; chronic obstructive pulmonary disease; "complete loss of teeth;" high blood pressure; high cholesterol; obesity; osteoarthritis of the hip and knee; and glaucoma. In the court’s view, Dawson's immobility, difficulty breathing, and significant cardiovascular problems are "serious physical or medical condition[s]" within the meaning of USSG 1B1.13(b)(1)(B). Moreover, there is no basis on which to conclude that Dawson is "expected to recover" from these impairments. Given the length of time that the defendant has been incarcerated, his disciplinary record is not an impediment to compassionate release. Dawson's significant physical impairments mean that he is unable to walk, shower without help, or exert himself without use of a portable oxygen tank. A person with such profound disabilities is not likely to pose a threat to the public. And, given Dawson's need for help with such a task as basic as showering, the court was satisfied that his "ability . . . to provide self-care" is "substantially diminishe[d]." In sum, Dawson demonstrated an extraordinary and compelling reason for compassionate release under both USSG 1B1.13(b)(2)(B) and 1B1.13(b)(1)(B). Sentence reduced to time served.

 

CR.RIS/REHABILITATION/FAMILY CIRCUMSTANCES/IMMIGRATION. The Southern District of Florida granted a CR.RIS motion in United States v. Jose Aman, 2024 U.S. Dist. LEXIS 124915 (S.D. Fla. July 16, 2024). In Aug. 2020, the defendant was charged by information with wire fraud in violation of 18 USC 1343 and was sentenced to 84 months imprisonment. The scheme resulted in approximately $24 million in losses to over 200 victims and he used these fraudulently procured proceeds to enrich himself and support his lavish lifestyle. Unrelatedly, in Aug. 2019, defendant's now-23-year-old son Joseph Aman, experienced a horrific ATV accident in Virginia, resulting in severe brain damage, a broken jaw, and myriad other complications which left him in a persistent vegetative state. The instant motion represents defendant's second request for compassionate release pursuant to 18 USC 3582(c)(1)(A). Immigration and Customs Enforcement has elected to lift defendant’s detainer and release him on his own recognizance subject to certain conditions." The Court found that defendant has sufficiently established extraordinary and compelling circumstances under both USSG 1B1.13(b)(3) and (b)(5). Defendant’s circumstances qualify as "extraordinary and compelling" under 1B1.13(b)(3)'s "Family Circumstances of the defendant" category because he is now the only caregiver available to care for Joey, his completely incapacitated 23-year-old son. The Court further found that defendant's rehabilitation provides additional support for the Court's conclusion that this situation presents extraordinary and compelling circumstances. The defendant's sentence was converted to Home Detention with Electronic Monitoring through May 26, 2026.

 

CR.RIS/MEDICAL. The District of Montana granted in part a CR.RIS motion in United States v. Spencer Price, 2024 U.S. Dist. LEXIS 125248 (D. Mont. July 16, 2024). Price has served approximately 132 months of his sentence. Price's current expected release date is Feb. 2, 2029. Price sought release in part because of his physical health issues and allegedly deficient medical treatment by the Bureau of Prisons. Price highlights a number of past and present ailments: a "history of multiple heart attacks," high blood pressure, "significant" leg swelling, foot "wounds," worsening eyesight, a skin infection, and "extreme" knee pain. Price identifies several corresponding delays and alleged inadequate treatment by the Bureau of Prisons in response to his health issues. These include the failure of BOP to timely transport Price to an outside cardiology appointment resulting in the rescheduling of the appointment, the failure of BOP to provide Price "diabetic shoes" and instead providing "BOP issues shoes" that caused wounds to Price's feet severe enough to warrant the treatment of the wounds at a local medical center, a more than year long delay between Price's request for new glasses and an optometrist appointment leading to the issuance of new glasses, a several month delay between Price's initial complaint about his skin and Price's eventual transportation to a local emergency room for treatment of a skin infection, and an ongoing delay beginning in Dec. of 2023 between Price's report of extreme knee pain and the indicated provision of an MRI. Sentence reduced to 202 months.

 

CR/RIS/DISPARITY. The District of Maryland granted in part a CR.RIS motion in United States v. Phillip Whitehurst, 2024 U.S. Dist. LEXIS 125645 (D. Md. July 17, 2024). Phillip Whitehurst is serving a 294-month prison term after pleading guilty in 2013 to two cocaine distribution-related charges and being a felon in possession of a firearm. In his Motion for Sentence Reduction he sought compassionate release, asking that his sentence be reduced to time-served under 18 USC 3582(c)(1)(A)(i). He claimed that the disparity between his sentence and those of his co-defendants constitutes an extraordinary and compelling circumstance justifying his release, and that release is consistent with the sentencing factors set forth in 18 USC 3553(a). A sentencing disparity may, in limited circumstances, constitute an extraordinary and compelling reason to reduce a sentence and grant compassionate release. Whitehurst expressed remorse for his actions and, at 43 years old, his risk of recidivism is in all likelihood reduced compared to when he entered prison over a decade ago. His prison record indicates that he no longer appears to present a danger to society, stating that he has received no incident reports since August of 2017 and the Government has noted no other infractions during Whitehurst's twelve years in prison. Moreover, according to the Report, Whitehurst is "considered to be one of the best workers" in his work assignment unit and is "a very respectful inmate" and "a leader" who "helps out wherever needed." The Court found that a reduction of Whitehurst's sentence from 294 months to 205 months was reasonable in light of the overall circumstances of this case.

 

APPEAL/RESENTENCE, The Eighth Circuit vacated and remanded United States v. Kevin Bordeaux, 2024 U.S. App. LEXIS 17509 (8th Cir. July 17, 2024). Kevin Bordeaux plead guilty to assault with a dangerous weapon, using and carrying a firearm during a crime of violence, and assaulting, resisting, and impeding a federal officer. On July 6, 2022, Bordeaux shot his girlfriend, Megan Hawk, in the hip and fled the scene. Two days later he led law enforcement on a high-speed chase, during which he and an accomplice fired at officers. Bordeaux was subsequently captured and indicted on multiple charges. The District of South Dakota sentenced Bordeaux based on an offense level of 29 and a Criminal History Category of III resulting in a Guidelines range of 108 to 135 months. This calculation was based on the Presentence Investigation Report (PSR), which initially included a five-level enhancement for discharging a firearm. Bordeaux objected to the addition of two criminal history points which the court sustained, reducing his Criminal History Category from IV to III. However, the court mistakenly maintained the offense level at 29 instead of 28 leading to the incorrect Guidelines range. The Eighth Circuit reviewed the case. The Government conceded that the district court had miscalculated the Guidelines range but argued that the error did not prejudice Bordeaux. The Eighth Circuit disagreed, noting that the correct Guidelines range should have been 97 to 121 months. The court found that the miscalculation affected Bordeaux’s substantial rights and the fairness of the judicial proceedings, as there was a reasonable probability that the district court would have imposed a lower sentence within the correct range. Consequently, the Eighth Circuit remanded the case to the district court for resentencing under the correct Guidelines range.

 

APPEAL/RESENTENCE. The Ninth Circuit vacated and remanded United States v. Adam Livar, 2024 U.S. App. LEXIS 17222 (9th Cir. July 15, 2024). Adam Lloyd Livar was convicted of failing to register as a sex offender, a requirement stemming from a prior conviction. He plead guilty and entered a plea agreement with the Government, which included a joint recommendation for a mid-range sentence if he demonstrated acceptance of responsibility. However, after making threatening statements during a phone call from prison the Government argued that Livar breached the plea agreement by committing a new crime and recommended a higher sentence. The District of Oregon sentenced Livar to thirty months in prison and five years of supervised release despite the plea agreement. The court found that Livar had accepted responsibility but did not adjudicate whether he committed a new crime. The court also determined that the Government had not breached the plea agreement. The Ninth Circuit reviewed the case. The court first addressed whether the appeal was moot due to Livar's release from prison. It concluded that the appeal was not moot because the district court could modify or terminate Livar's supervised release under 18 USC 3583(e). The Ninth Circuit held that the district court must hold an evidentiary hearing to resolve factual disputes when the Government seeks to be relieved of its obligations under a plea agreement. The court unanimously agreed that Livar's sentence should be vacated because the district court did not adjudicate whether he committed a new crime. A majority of the panel concluded that due process does not require the Government to seek a judicial determination before submitting a different sentencing recommendation. Another majority determined that the proper remedy is to remand with instructions to enter judgment with a term of imprisonment of time served and maintain the original terms of supervised release. The court vacated Livar’s sentence and remanded for resentencing.

 

APPEAL/RESENTENCE. The Sixth Circuit reversed and remanded United States v. Ray Guerrero, 2024 U.S. App. LEXIS 17686 (6th Cir. July 16, 2024). After a multi-day trial, a jury convicted Ray Guerrero for his part in a drug-trafficking conspiracy and for being a felon in possession of firearms. Guerrero does not challenge his convictions on appeal but instead attacks nearly every finding that the district court made en route to sentencing him to 292 months imprisonment. The bulk of Guerrero’s arguments fail because the district court was within its authority to rely on certain facts proven at trial. But the district court nonetheless failed to explain adequately the basis for Guerrero’s sentence and to acknowledge a key argument Guerrero made for a lower sentence. Accordingly, the court affirmed in part, reversed in part, vacated Guerrero’s sentence, and remanded this case for resentencing consistent with the opinion.

 

APPEAL/RESENTENCE. The Second Circuit vacated and remanded Betim Kaziu, v. United States, 2024 U.S. App. LEXIS 17380 (2d Cir. July 15, 2024). Betim Kaziu was convicted for his involvement in a plan to join and aid foreign terrorist organizations. He and his friend traveled to Cairo, Egypt, intending to join a terrorist group and fight jihad. After his friend returned to the U.S., Kaziu continued to Kosovo to formulate a plot to kill Americans but was arrested before he could act. He was convicted on four counts, including conspiracy to commit murder in a foreign country and conspiracy to use a firearm. He was sentenced to 27 years in prison. The Eastern District of New York initially sentenced Kaziu to 27 years. Kaziu later filed a habeas corpus petition under 28 USC 2255, arguing that two of his convictions were unlawful based on new Supreme Court precedent. The district court vacated his conviction on Count Four and reduced his sentence on Count One by two years, from 27 to 25 years, without a full in-person resentencing proceeding.

The Second Circuit reviewed the case. The court held that the district court exceeded its discretion by not conducting a full de novo resentencing. The appellate court noted two key factors: the resentencing judge was not the original sentencing judge, and Kaziu presented plausible allegations of changed circumstances, including his reform during imprisonment. The court vacated the sentence and remanded for a full de novo resentencing, ensuring that Kaziu would receive the full procedural protections of a standard sentencing.

 

APPEAL/JURY INSTRUCTIONS/CCE. The Eighth Circuit vacated and remanded United States v. Darius Sledge, 2024 U.S. App. LEXIS 17351 (8th Cir. July 16, 2024). Darius Sledge and Baquan Sledge were involved in a large-scale drug distribution conspiracy in North Dakota targeting several Indian Reservations. They transported thousands of oxycodone pills from Michigan and recruited local residents as sub-distributors. Despite being arrested Baquan continued his involvement from jail. Both were charged with multiple counts including conspiracy to distribute controlled substances, money laundering, and maintaining drug-involved premises. A jury found Baquan guilty on all counts and Darius on all but one. The District of North Dakota denied Baquan's motion to be returned to North Dakota from a Colorado facility deeming it moot as he had already been returned. The court also denied Darius and Baquan's motion for a new trial based on alleged juror bias, finding no dishonesty in juror responses during voir dire. Both were sentenced to 360 months for the continuing criminal enterprise (CCE) count and 240 months for other counts, to run concurrently. The Eighth Circuit reviewed the case. It reversed Darius’s CCE conviction due to an error in jury instructions, specifically the lack of a unanimity instruction regarding the predicate felonies. The court found this error affected Darius’s substantial rights and the fairness of the proceedings. The court remanded for a new trial on this count and remanded Baquan’sdrug conspiracy conviction to the district court to vacate the lesser-included offense. The court affirmed the judgments in all other respects, including the denial of a new trial based on juror bias and the handling of Baquan’s pre-trial detention location.

 

APPEAL/INSUFFICIENT EVIDENCE. The Tenth Circuit reversed the conviction in United States v. David Lesh, 2024 U.S. App. LEXIS 17370 (10th Cir. July 16, 2024). David Lesh, a social media content creator and owner of an outdoor apparel brand, posted photos on Instagram of himself snowmobiling at Keystone Resort, Colorado, during its closure due to the COVID-19 pandemic. The United States charged him with using an over-snow vehicle on National Forest Service (NFS) land off a designated route and conducting unauthorized work activity on NFS land. A magistrate judge convicted him of both counts after a bench trial. The magistrate judge found Lesh guilty of using an over-snow vehicle on NFS land off a designated route, taking judicial notice of a publicly available map indicating that Keystone Resort was not designated for snowmobile use. Lesh's argument that the map's undated nature failed to provide sufficient notice was not preserved for appeal. The district court affirmed the magistrate judge's decision. The Tenth Circuit reviewed the case. The court affirmed Lesh's conviction for using an over-snow vehicle on NFS land off a designated route finding that Lesh had waived his challenge to the judicial notice of the map. However, the court reversed his conviction for unauthorized work activity under 36 CFR 261.10(c). The court held that the regulation was impermissibly vague as applied to Lesh's conduct, as it did not provide fair warning that posting images on social media could constitute a federal crime. The court also found insufficient evidence to prove that Lesh's primary purpose in posting the photos was to sell goods or services, as required by the regulation. The court concluded that Lesh was not deprived of his Sixth Amendment right to a jury trial, as the maximum penalty he faced did not exceed six months of imprisonment.

 

APPEAL/REINSTATE INDICTMENT. The Ninth Circuit reinstated the indictment in United States v. Robert Rundo, 2024 U.S. App. LEXIS 17692 (9th Cir. July 18, 2024). The case involves Robert Paul Rundo and Robert Boman who were charged with conspiracy to violate the Anti-Riot Act and with substantively violating the Act. The indictment alleges that Rundo is a founding member of the "Rise Above Movement" (RAM), a militant white supremacist group. Rundo and Boman along with other RAM members attended several political rallies where they violently attacked counter-protesters. The indictment details their involvement in rallies in Huntington Beach, Berkeley, San Bernardino, and Charlottesville, where they engaged in organized violence and later boasted about their actions online. The Central District of California initially dismissed the indictment finding the Anti-Riot Act unconstitutional due to facial overbreadth under the First Amendment. The Ninth Circuit reversed this decision holding that the Act was not facially overbroad except for certain severable portions. On remand, the district court dismissed the indictment again, this time based on a claim of selective prosecution. The district court concluded that the Government selectively prosecuted RAM members while ignoring the violence of Antifa and related far-left groups, suggesting that the prosecution was based on the offensive nature of RAM's speech. The Ninth Circuit reviewed the case and reversed the district court's judgment. The Ninth Circuit held that Rundo did not meet his burden to demonstrate that similarly situated individuals were not prosecuted and that his prosecution was based on an impermissible motive. The court found that the district court erred by comparing collective conduct to individual conduct and by holding that individual Antifa members were similarly situated to Rundo. The Ninth Circuit also held that Rundo failed to show that his prosecution was based on an impermissible motive, noting that timing and other factors cited by the district court were insufficient. The court reinstated the indictment and remanded the case for trial.

 

APPEAL/MAIL FRAUD. The District of Columbia Circuit vacated and remanded United States v. Chance Barrow, 2024 U.S. App. LEXIS 17738 (D.C. Cir. July 10, 2024). In 2016, Chance Barrow was employed as a digital forensic examiner by the Army Criminal Investigation Division (Army-CID) in Irvine, California. By 2018, he was a special agent. In March 2018, Barrow's ex-wife reported him to the Naval Criminal Investigative Service (NCIS) for alleged sexual assault. Consequently, Army-CID placed Barrow on administrative duty. After a meeting in April 2018, where officials suggested he resign, Barrow resigned. In May 2018, Barrow applied for a position with the Treasury Inspector General for Tax Administration (TIGTA), providing false information about his employment status and history. TIGTA hired him, but later discovered the allegations and initiated a criminal investigation, leading to Barrow's suspension and eventual termination. The District of Columbia tried Barrow, who was indicted on two counts of wire fraud and one count of concealment of material facts. The district court excluded evidence related to Barrow's job performance and the NCIS investigation details. The jury found Barrow guilty on all counts, and the court sentenced him to seventeen months in prison and ordered him to pay $77,057.00 in restitution. Barrow appealed, arguing insufficient evidence and errors in the district court's rulings. District of Columbia Circuit reviewed the case. The court found insufficient evidence to support the wire fraud convictions, as the Government failed to prove that Barrow's lies deprived TIGTA of money or property. The court vacated the wire fraud convictions and remanded for a judgment of acquittal. Additionally, the court reversed Barrow's conviction for concealment of material facts due to the exclusion of critical evidence and remanded for further proceedings. The restitution order was also vacated.

 

APPEAL/1983/DELIBERT INDIFFERENCE. The Fourth Circuit vacated and remanded Harris Ford v. Hooks, 2024 U.S. App. LEXIS 17382 (4th Cir. July 12, 2024). Harris Ford, an inmate in the North Carolina Department of Corrections prison system, commenced this action against six prison officials under 42 USC 1983, claiming that, by failing to protect him from a fellow inmate who attacked him with a shank and severely injured him, the prison officials violated his Eighth Amendment rights. Ford alleged that he had made prison officials aware of the risk of such an attack by filing numerous complaints and grievances but that the officials were deliberately indifferent to them, giving rise to the attack. The district court granted the prison officials summary judgment, concluding that Ford’s complaints and grievances had not been sufficiently specific to enable the officials to investigate and respond and that Ford had failed to demonstrate the mens rea of deliberate indifference necessary for an Eighth Amendment violation. The court affirmed the district court’s judgment as to five of the six prison officials whom Ford named as defendants. But as to Officer Jerry Ingram, we conclude that, “taking the facts in the best light for the nonmoving party,” Ausherman v. Bank of America Corp., 352 F.3d 896, 899 (4th Cir. 2003) (noting that summary judgment is appropriate if, “taking the facts in the best light for the nonmoving party, no material facts are disputed and the moving party is entitled to judgment as a matter of law”), there was a question of fact that precluded summary judgment, namely whether Officer Ingram knowingly aggravated the risk to Ford and possibly contributed to the cause of the attack. Accordingly, as to Officer Ingram, the court vacated and remanded for further proceedings.

 

APPEAL/1983/FOURTH AMENDMENT. The Fourth Circuit vacated Anthry Milla v. Brown, 2024 U.S. App. LEXIS 17790 (4th Cir. July 19, 2024). On June 7, 2019, around 4:20 a.m., two police officers detained Anthry Milla who was sitting in his car in his driveway. The officers were investigating a nearby stabbing but had no description of a suspect. Milla was cooperative but closed his car door when the officers approached. The officers suspecting involvement in the stabbing detained Milla at gunpoint, searched his car and found no evidence. Milla's parents confirmed his identity, and he was released after about eight minutes. Milla filed a pro se complaint under 42 USC 1983, alleging Fourth Amendment violations. The Eastern District of Virginia granted summary judgment to the officers finding their actions justified under the totality of the circumstances. The court also held that the officers were entitled to qualified immunity, as they did not violate Milla's constitutional rights. The Fourth Circuit reviewed the case de novo and vacated the district court's decision. The appellate court found that the officers lacked reasonable, particularized suspicion to detain Milla. The court emphasized that proximity to a crime scene and Milla's actions, such as closing his car door, did not constitute reasonable suspicion. The court also vacated the district court's award of qualified immunity as the officers' actions were not justified under established Fourth Amendment standards. The case was remanded for further proceedings consistent with the appellate court's opinion.

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