4th Circuit Criminal Law News - U.S. Fourth Circuit
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Former Virginia governor Bob McDonnell and his wife's indictment was good reading, but the hilarity didn't stop with the initial pleadings. Thanks to a recent spate of filings, some with little to no basis in existing laws, the judge in the case, U.S. District Judge James Spencer, asked the prosecutors and defense attorneys to limit their filings "for the sanctity of the trees."

Judge Spencer also dismissed McDonell's request to allow a related civil case to move forward, in hopes that evidence favorable to the defense would emerge, stating that the defense was "dancing through fantasyland," reports The Washington Post.

Stay tuned folks. This is probably going to be one heck of a show.

Massey Mine Explosion: Gary May Asks 4th Cir. to Vacate Sentence

You may recall Gary May, the former Upper Big Branch mine superintendent sentenced to 21 months in federal prison for hindering U.S. Mine Safety and Health Administration investigations into the massive Massey mine explosion back in 2010 that killed 29 miners.

He is now asking the Fourth Circuit Court of Appeals to vacate his sentence. He wouldn't be the first Upper Big Branch exec to turn to the Fourth Circuit.

But what is he claiming?

This is definitely one of the most egregious cases of prosecutorial misconduct that you'll ever see.

We last saw former death row inmate Justin Wolfe in May 2013, when the Fourth Circuit reversed the district court's order preventing the state from re-prosecuting Wolfe for a murder-for-hire. The district court's order came after Brady violations in the original trial, a defied habeas judgment that ordered the state to retry or release Wolf within 120 days, and a wee bit of witness intimidation.

The Fourth Circuit, while sympathetic, held that federal district courts lack the power to bar state courts from re-prosecuting. Wolfe is hoping that the Supreme Court feels differently.

We've all read criminal cases where we think, "How can they be this stupid?" And we've all seen cases where, out of stupidity, carelessness, or desperation, people pile mistakes upon mistakes.

But it's different when the crimes are allegedly carried out by politicians. We expect them to be smarter. Not so much, for former Gov. Bob McDonnell and his wife Maureen.

The McDonnell indictment contains page after page after page of alleged quid-pro-quo. Gifts and loans were allegedly exchanged for access to the Governor's office and promotion of a private company's nutritional supplement.

"The majority opinion runs counter to Supreme Court precedent, Carachuri-Rosendo v. Holder, 130 S. Ct. 27 (2010), and effectively guts our Circuit precedent, United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). It violates principles of comity and federalism by directing federal district courts to ignore the careful sentencing decisions of their state counterparts. And it goes to such lengths all to affirm a twenty-two-year sentence imposed on a fifty-one-year old mentally ill veteran who had previously never served more than ten months in prison, tagging him with the moniker "armed career criminal." We can do much better than this."

Judge Andre Davis is obviously mad, but why? Blame the hard-to-apply Armed Career Criminal Act (ACCA), which mandates stiff sentences for those who have previously been convicted of a "violent felony or a serious drug offense." It relies on a vague definition for "violent felony" as "any crime punishable by imprisonment for a term exceeding one year," a definition that makes application to North Carolina borderline-felony offenses exceedingly difficult, as we've seen before, and will see again.

Ever play the telephone game? You say something to one person, she repeats it to the next person, who repeats it to the next person ... ad nauseum. By the time the message reaches the end of the chain, a statement such as, "Man, I could really use some Chipotle right now, but I'm blogging instead," becomes, "I've got a chicken in my head."

Reliability. It's one of the reasons why hearsay is naughty -- except, apparently, when crackheads phone in their testimony to a third party who then prepares a sentencing report.

Faisal Hashime just caught a break. After being sentenced to fifteen years in prison for "manufacturing" child pornography, he'll, at minimum, get a new trial, with the words of the Forth Circuit guiding future proceedings:

"[T]his was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant's conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair."

Why was the court so apparently disturbed by the lengthy sentence? And why was his conviction reversed?

Cross-examination is fun. You ask a series of rapid-fire questions, ones that you hopefully know the answers to (surprises are rarely a good thing), and attempt to undermine the witness's testimony, either by catching him in an outright lie, or by exposing weaknesses in his story.

Your quest to make the witness look like a jackass in front of the jury is guaranteed by the Confrontation Clause of Sixth Amendment to the U.S. Constitution, incorporated to the states via the Fourteenth Amendment. This is all basic stuff, right? Stuff you'd learn in law school, maybe even during 1L year, right?

Sometimes, it isn't as easy in practice.

After the decision, and the amicus briefs, comes the expected denial. Next stop SCOTUS?

James Risen had a lot of inside information about the CIA, which he revealed in his book State of War. We're all pretty certain that the information came from Jeffrey Sterling, a disgruntled former agent, as he's the common link to a lot of the information about a variety of operations. The government, however, contends that only Risen can provide a direct link to the leaks.

The issue in the case is pretty fundamental: does the Supreme Court's holding in Branzburg v. Hayes really prohibit reporters from invoking the First Amendment to refuse to testify about their sources to a grand jury (and in other legal proceedings)?

The Eric C. Conn Law Complex is an interesting place. From the photos and videos of the welded-together trailers, to the Lincoln Monument and Statue of Liberty replicas on the lot, the setting is reminiscent of every lawyer stereotype the rest of us laugh about. Uproxx calls him the "Real life Saul Goodman," which isn't too far off, except the whole criminal aspect.

Except, that's exactly what the federal government is calling him.

Earlier this week, a Congressional report implicated Conn and retired Administrative Law Judge David B. Daugherty in a Social Security disability scheme that processed thousands of claims in "assembly-line fashion. The report accuses Conn of using manufactured evidence in claims brought before Judge Daugherty, which were rubber stamped en masse by the now-retired judge, reports The Associated Press.