U.S. Court of Appeals for the 4th Circuit

Criminal; Circuit split over scope of 28 U.S.C.§ 2244(b)(1): In an issue of first impression, the court joined the Sixth and Ninth Circuits in holding that 28 U.S.C. § 2244(b)(1), which requires dismissal of “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application,” applies only to second or successive § 2254 applications by state prisoners. Six other circuits have interpreted § 2244(b)(1) to also apply to second or successive § 2255 motions by federal prisoners. In re Graham, Case No. 20-221 (filed March 8, 2023)

Criminal; Restitution: Where a former Baltimore detective was convicted of taking money from drug dealers that they “earned” from illegal drug sales, he must make restitution of the stolen funds. The statute doesn’t limit restitution based on the conduct of the person who experienced pecuniary loss. United States v. Taylor, Case Nos. 19-7246, 21-4422 (filed March 10, 2023)

Maryland Appellate Court

Criminal; exhibits: Where the trial court refused to allow an unloaded shotgun that had been admitted into evidence to be taken into the jury room, it did not abuse its discretion. The annals of history are replete with instances of persons having been shot and killed with “unloaded” weapons. And the shotgun was a heavy and awkward metal instrument that could easily have hurt any lay juror that it accidentally hit. Robson v. State, No. 0764, Sept. Term, 2022 (filed March 3, 2023)

U.S. Court of Appeals for the 4th Circuit

Criminal

Circuit split over scope of 28 U.S.C.§ 2244(b)(1)

BOTTOM LINE: In an issue of first impression, the court joined the Sixth and Ninth Circuits in holding that 28 U.S.C. § 2244(b)(1), which requires dismissal of “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application,” applies only to second or successive § 2254 applications by state prisoners. Six other circuits have interpreted § 2244(b)(1) to also apply to second or successive § 2255 motions by federal prisoners.

CASE: In re Graham, Case No. 20-221 (filed March 8, 2023) (Judges GREGORY, Wynn, Thacker).

FACTS: In 2015, a jury convicted Kenneth Graham of possessing a firearm in furtherance of attempted Hobbs Act robbery, in violation of § 18 U.S.C. § 924(c). Because this court has since determined that attempted Hobbs Act robbery is not a “crime of violence” under that statute, Graham’s § 924(c) conviction (and the associated 10-year prison sentence) is no longer valid. Having previously sought relief pursuant to 28 U.S.C. § 2255, Graham now moves for authorization to file a second or successive § 2255 motion to vacate his § 924(c) conviction.

LAW: In addressing Graham’s request, this court must first determine whether 28 U.S.C. § 2244(b)(1), which requires dismissal of “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application,” applies only to second or successive § 2254 applications by state prisoners, or if it also applies to second or successive § 2255 motions by federal prisoners.

Despite the plain language of the provision limiting its application to the former set of cases, the Second, Third, Fifth, Seventh, Eighth and Eleventh Circuits have determined that it applies to second or successive habeas applications by both state and federal prisoners. The Sixth and Ninth Circuits, however, have reached the opposite conclusion. For its part, the Supreme Court has recognized “th[e] circuit split on this question of federal law” but has yet to address it. This court now joins the ranks of the Sixth and Ninth Circuits and concludes that § 2244(b)(1) does not so apply.

To start, the plain text of § 2244(b)(1) clearly circumscribes the provision’s applicability to “claim[s] presented in a second or successive habeas corpus application under section 2254.” Section 2244(b) “is divided into provisions that expressly specify their applicability to ‘a second or successive habeas corpus application under section 2254’—namely § 2244(b)(1) and (b)(2)—and those that do not indicate whether they apply only to § 2254 applications—§ 2244(b)(3) and (b)(4).” Whereas reading §§ 2244(b)(1) and (b)(2) to apply to federal habeas proceedings would render those provisions’ express reference to § 2254 superfluous, restricting their scope to second or successive § 2254 applications affords their language proper effect.

A comparison between the text of §§ 2244(b)(1), 2244(b)(2) and 2255(h) further convinces this court that § 2244(b)(1) does not apply to second or successive § 2255 motions. Finally, the court notes the untenable consequences that would flow from reading § 2244(b)(1) to apply to second or successive § 2255 motions. The policies underlying Antiterrorism and Effective Death Penalty Act of 1996 do not undermine this conclusion.

The parties agree that Graham has made a prima facie showing that his claim satisfies § 2255(h)(2), which requires his second or successive motion to contain “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Graham and the government contend that In re Thomas, 988 F.3d 783 (4th Cir. 2021), is on all fours with the instant case. The court agrees.

Graham’s authorization motion granted.

Criminal

Restitution

BOTTOM LINE: Where a former Baltimore detective was convicted of taking money from drug dealers that they “earned” from illegal drug sales, he must make restitution of the stolen funds. The statute doesn’t limit restitution based on the conduct of the person who experienced pecuniary loss.

CASE: United States v. Taylor, Case Nos. 19-7246, 21-4422 (filed March 10, 2023) (Judges HEYTENS, King) (Judge Lydon concur).

FACTS: Marcus Taylor was a detective in Baltimore’s Gun Trace Task Force. A jury convicted him of Hobbs Act robbery and racketeering offenses. The district court ordered Taylor to make restitution to two people from whom he and his confederates stole cash, personal property and illegal drugs. The district court did not order restitution for the drugs. It did, however, order Taylor to pay $228,304 in restitution for the cash and personal property.

Taylor claims the restitution order is unwarranted and unsupported. The people to whom the court ordered Taylor to make restitution testified against him under grants of immunity. Both admitted to selling drugs, and one said at least some of the stolen cash— $15,970 taken from a closet—came from illegal drug sales.

Based on that testimony, Taylor argued these people were not “victim[s]” under 18 U.S.C. § 3663A(a)(2) because “[t]he proceeds of illegal activity are not the property of the person who obtained the funds through that activity” and the government failed to prove that either the cash or personal property was “untainted.” The district court concluded “the plain text” of the relevant statute “does not limit restitution based on the conduct of the person who experienced pecuniary loss.”

LAW: The language of the Mandatory Victims Restitution Act is straightforward. “[W]hen sentencing a defendant convicted of an offense described in subsection (c), the court shall order . . . that the defendant make restitution to the victim of the offense.” The “offense[s] described in subsection (c)” include “an offense against property under this title” “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”

To the extent Taylor offers a textual basis for his position, he grounds it mainly in the statutory words “pecuniary loss.” But Taylor develops no argument why that term excludes cash or personal property derived from illegal activity, and merely saying something does not make it so. Further, this court is aware of no authority—and Taylor cites none—saying a person’s previously unlawful conduct has any bearing on whether the person suffers a pecuniary loss from (or is proximately harmed by) a robbery.

Taylor might have a winning argument if the common law barred restitution for cash or personal property obtained through unlawful conduct. The problem for Taylor is the common law rule appears to have been the opposite. The broader statutory context further undermines Taylor’s argument.

If a defendant’s otherwise mandatory restitution obligation depended on the way victims obtained the property later stolen from them, Congress would have had every reason to establish procedures for district courts to acquire that kind of information. Congress, however, has not done so—a silence made all the more notable given the mechanisms Congress did establish for obtaining information relevant to restitution.

Taylor’s position also flouts multiple provisions designed to protect victims during the restitution process and ensure the focus remains on the defendant’s wrongful conduct.

If Taylor’s victims obtained the property in question through (or with the proceeds of) unlawful conduct, their actions are blameworthy and their right to the property may well be inferior to that of the government or other third parties. But it would be, at minimum, rational for Congress to conclude that is a matter between Taylor’s victims and those third parties, and that Taylor should not be able to escape the duty to make restitution for his own crimes by questioning the way his victims acquired the things he stole.

Affirmed.

CONCUR: Restitution is mandatory. Under our facts, mandatory restitution accomplishes Congress’s goal of making victims whole; but by doing so, it returns admitted ill-gotten gains to a drug dealer. This is where forfeiture comes in. Though, here, the government suggests that its immunity deal “forfeited” its ability to pursue those ill-gotten gains through forfeiture. Despite the government’s suggestion to the contrary, forfeiture, if properly invoked, ensures those admitted ill-gotten gains do not stay in the hands of the drug dealer. Thus, I write separately to expand on the importance of forfeiture, particularly as it relates to the $15,970 of admitted ill-gotten gains that Marcus Taylor stole from Shawn Whiting.

Maryland Appellate Court

Criminal

Exhibits

BOTTOM LINE: Where the trial court refused to allow an unloaded shotgun that had been admitted into evidence to be taken into the jury room, it did not abuse its discretion. The annals of history are replete with instances of persons having been shot and killed with “unloaded” weapons. And the shotgun was a heavy and awkward metal instrument that could easily have hurt any lay juror that it accidentally hit.

CASE: Robson v. State, No. 0764, Sept. Term, 2022 (filed March 3, 2023) (Judges Ripken, MOYLAN) (Judge Albright, concur).

FACTS: Arthur Robson was convicted in the circuit court by a jury of reckless endangerment. He argues that the trial judge erred when he: (1) relied on an impermissible consideration when sentencing him; (2) asked compound voir dire questions in a manner that allowed individual jurors to determine for themselves whether they would be prejudicially biased and (3) refused to allow an unloaded shotgun which had been entered into evidence to go into the jury room during the jury’s deliberations.

LAW: Appellant argues that the trial judge erroneously concluded that he had “pointed the weapon at the deputy’s face.” Counsel argued that that was not what “the jury concluded” because, had it done so, appellant “would have been found guilty of first- or second-degree assault.” The heart of the appellant’s legal argument then followed: “[I]t is inappropriate to take into consideration [a fact] when that is not what the jury concluded.” The sentencing judge, the argument holds, is constrained by the jury’s factfinding, actual or surmised.

The appellant’s argument that the verdicts established that the jury must have found that the appellant did not point the shotgun at the deputy’s face or head does not necessarily follow, however, from the verdict of not guilty of first-degree assault or from the hung jury as to second-degree assault. And, under Maryland law, the sentencing judge may consider conduct for which the defendant has been tried and actually acquitted.

The challenged consideration at his sentencing to which the appellant takes umbrage is the trial judge’s concern that the appellant pointed the shotgun at the deputy’s face or head. That, of course, was reliable evidence. It was based on the direct trial testimony of a competent witness. It bore directly, moreover, on the behavior of the appellant during a critical moment of the crime of which he was convicted. In this court’s review of the entire history of sentencing law in Maryland, there is no criterion by which this crucial piece of evidence could be deemed to be an impermissible or improper consideration. The appellant’s first contention is rejected.

The appellant next contends that reversible error occurred when a forbidden compound inquiry was posed to the panel of prospective jurors in this case. The first of the five challenged compound questions turns out to be a worthy representative of the forbidden compound question generally: “Do any of you have such a close association with a law enforcement officer or organization that it would in any way impair your ability to be fair and impartial?” The state properly concedes that this was a forbidden compound question. However the appellant failed to object to this question, or any of the other related challenged questions.

Recognizing the inherent frailty of his preservation argument, the appellant veers off down a tangent off of a tangent – the ineffective assistance of counsel based on counsel’s non-preservation of the original issue. The court finds, however, that this issue is better resolved on post-conviction review.

Turning to the third issue, Rule 4-326(b) provides that “the jury may . . . take . . . exhibits which have been admitted into evidence.” The shotgun, to be sure, was admitted into evidence. However, the same rule provides “Unless the court for good cause orders otherwise.” In this case, the trial judge did resoundingly “order otherwise.” The good cause for the order was juror safety.

Although appellant argues that safety was not a viable concern because the shotgun was unloaded and the ammunition, which had been introduced as a separate exhibit, was not being sent to the jury room, the annals of history are replete with instances of persons having been shot and killed with “unloaded” weapons. And there was a secondary danger that the shotgun was a heavy and an awkward metal instrument that could easily have hurt any lay juror that it accidentally hit. The trial judge did not abuse his discretion.

Judgment of the Circuit Court for Howard County affirmed.

CONCUR: I join the majority’s apt analysis of the first and third issues. As to the second issue, I part ways simply because, in my view, non-preservation can end the analysis. The defense proposed the questions that Mr. Robson now challenges, the circuit court read them verbatim and there was no objection. Further, as the majority points out, the defense indicated after voir dire that the questioning was satisfactory. In my view, this concludes our task on direct appeal, and I would go no further here.