West Virginia Court Spells Out Re-Registry Requirements
A West Virginia appeals court has ruled that sex offenders are only required to re-register their information after a conviction, not after an arrest.
The court ruled last week that the West Virginia State Police lacked the right to arrest 30-year-old Timothy Judge of Tyler County for failure to re-register on a sex-offender list upon his release from jail in 2010.
Judge complied with re-registering after being convicted on a third-degree sexual abuse charge in 2002.
He was arrested in May 2010, on a charge of accessory after the fact to breaking and entering.
Police arrested Timothy Judge because he didn’t update his sex-offender registry entry.
The Charleston Gazette reports that last week’s opinion says the language regarding the offender-registration requirements should be rewritten to more clearly reflect the law’s requirements.
WV Judges Continue Crackdown on Truancy
Judges in Cabell and Kanawha counties are holding parents of chronically truant students responsible for their children’s absences.
Media outlets report that Kanawha County Circuit Court Judge Duke Bloom and Cabell County Paul Farrell held hearings this week for several parents.
Bloom fined one parent $50 and ordered her to perform community service.
He scheduled a jury trial for another parent and told a third parent to get the proper forms for absences.
Farrell fined three parents $50. The fines will be waived if their children do not miss any school in the next 60 days.
Both judges warned the parents that a second offense could land them in jail. The state also could take their children if the truancies continue.
Calhoun Couple Indicted In Infant’s Death
Imprisonment Status: Pre-Trial Felon
Ashley Nicole Kreh
||Kreh, Ashley Nicole
||Central Regional Jail
||Pre-Trial Felon - Charged with death of a child by parent by child abuse
Offender Court Order Information
|Court Info Number
||Issuing Agency Location
||CALHOUN COUNTY - Bail Amount: $750,000.00
A Calhoun County couple has been indicted in the death of their infant daughter.
Ashley Kreh, age 21 and Ordie Rogers, age 30 are charged with murder and child abuse resulting in death.
Their 2-month old daughter died of blunt force trauma to the head last month.
She was taken to Roane General Hospital on February 17, 2012 with a skull fracture and a broken arm and died two days later.
Imprisonment Status: Pre-Trial Felon
Ordie Jackson Rogers
||Rogers, Ordie Jackson
||Central Regional Jail
||Pre-Trial Felon - Charged with a death of a child by neglect
Offender Court Order Information
|Court Info Number
||Issuing Agency Location
||CALHOUN COUNTY - Bail Amount: $300,000.00
Calhoun County Woman Sues WV Trooper for Civil Rights Violations
The WV Record Reports:
A Calhoun County woman alleges she was falsely arrested by a West Virginia State trooper to leverage her cooperation in the investigation of a missing Roane County teenager.
Jackie L. Denmark on March 12 filed a civil rights suit against Cpl. D.B. Starcher in U.S. District Court. In her complaint, Denmark, 58, of Orma, alleges Starcher arrested her two years ago for the sole purpose of getting her son, William Albert “Seth” Denmark, to disclose the whereabouts of David Wayne Beech III.
According to the suit, Starcher with the Grantsville detachment first interviewed Denmark in May 2006 shortly after Beech, 17, from Spencer, was reported missing. Starcher and two deputies from the Roane County Sheriff’s Department received information Beech might be at the Denmark residence.
In the course of the interview, Denmark denied knowing Beech’s whereabouts.
Four years later, Starcher obtained a warrant to search the Denmark property. The warrant, according to the suit, was a result of Veronica Cottrill saying she, at gunpoint, was made to help Seth bury Beech’s body on a nearby hillside.
In her statement, Cottrill stated Denmark was aware Seth abducted Beech, and later killed him. Though some evidence was discovered at the scene, Beech’s body was never discovered.
Based mostly on Cottrill’s statement, Starcher arrested Denmark on March 12, 2010, and had her charged with one count of aiding or abetting kidnapping. Following her arrest, Denmark remained in jail for an unspecified period before being released on bond that included a period of house arrest.
According the suit, Calhoun Circuit Judge David W. Nibert dismissed the charge April 02.
Her arrest, and subsequent incarceration, Denmark alleges, was done out of Starcher’s “desire to accomplish a collateral advantage” of charging Seth with murder. In the suit, Denmark states while Seth was incarcerated at the Anthony Correctional Center in Greenbrier County on unrelated charges prior to his arrest for Beech’s kidnapping, Starcher interviewed him, and said he would have her arrested if Seth did not tell him the location of Beech’s body.
In her suit, Denmark maintains Starcher’s abuse of the legal process based largely on Cottrill’s uncollaborated statement resulted in a depravation of her constitutional rights. As a result, Denmark says that along with losing her full-time job, she’s “suffered great hardship, physical and mental emotional harm [and] enjoyment of life.“
Denmark seeks unspecified damages, attorney’s fees and court costs. She is represented by Henry E. Wood III of Charleston and Lee F. Benford II of Ripley.
The case is assigned to Judge Irene M. Keeley.
U.S. District Court for the Northern District of West Virginia case number 12-cv-43
~~ Lawrence Smith - Harrison Bureau – WV Record ~~
G-FYI™: Little Action Taken in Clay Man’s FOIA Suit against County Development Agency
The WV Record Reports:
A year after it was filed, a Clay County man’s Freedom of Information Act suit remains at square one.
Since he filed it on Feb. 17, 2011, Michael Boggs’ suit in Kanawha Circuit Court to compel the Clay County Business Development Authority to disclose three years’ of records has seen little action. The most recent was a motion filed Dec. 9 by his attorney David R. Karr Jr. to file an amended complaint.
Karr’s motion came in response to a combined answer, and motion to dismiss filed by the state Development Office which was named as co-defendant in Boggs’ suit. The WVDO is the reason the suit is in Kanawha Circuit as after Boggs filed his original suit in Clay Circuit Court two years ago against the BDA and the Clay County Commission, Judge Jack Alsop dismissed it finding WVDO had an interest in determining some of the funds it gave the Authority.
Kanawha County has original jurisdiction in lawsuits involving state agencies.
In its answer, and motion to dismiss filed July 19, Assistant Attorney General Mary Downey denied Boggs’ allegations. Also, she asserted a defense WVDO “acted within its legal rights and within the proper standard of practice in the conduct of all activities.“
In response to Downey’s motion, Karr stated the amended complaint corrected the “perceived flaws in the original complaint argued by the West Virginia Development Office to exist, as per the West Virginia Development Office’s motion to dismiss previously filed herein, which has yet be heard by the Court.“ Among the language omitted in the amended complaint is Boggs’ claim WVDO is not only CCBDA’s funding source, but it also “has an interest in the determination of various receipts and disbursements.“
Boggs’ amended complaint contains all the original claims he made against CCBDA and the Commission that include the Authority holding meetings, and making decisions without the minimum number of members, failing to publish its quarterly and annual reports from 2008-2010 and re-appointing him as member on a month-to-month basis instead of a three-year term. Also, the amended complaint continues to aver Boggs’ termination from the Board in July 2010 was due to his refusal in “remaining quiet about the above-mentioned statutory violations”
Records show, Judge Charles E. King Jr. has yet to rule on any of the motions including another one made by Karr seeking default judgment against the Commission and the Authority for failing to answer Boggs’ suit after 30 days of receiving notice of it.
Kanawha Circuit Court case number 11-C-269
~~ Lawrence Smith – WV Record ~~
Gilmer County Circuit Court Report - 03.15.12
Chief Judge Jack Alsop held 2 arraignments as follows:
• State of West Virginia vs. Tonya Ramsey
She was back before Court and entered a plea of not guilty to the indictment returned against her.
Her bond remains at $20,000.00 but until she can pass a drug test Judge Alsop refused to let her out of jail and took the matter under advisement until that time.
She is represented by Kevin Duffy of Clay and her pretrial is set for Friday, June 01, 2012 at 3:00 PM and her trial is Wednesday, June 27, 2012 at 9:00 AM.
• State of West Virginia vs. Catherine McGhee
She was back in Court and entered a plea of not guilty to the indictment returned against her earlier this month.
Her pretrial is Monday, June 11, 2012 at 11:00 AM and her trial is Thursday, June 28, 2012 at 9:00 AM.
She is represented by Daniel Grindo of Gassaway and posted $25,000.00 bond later in the day with AAA Bonding and she was released from Central Regional Jail.
Judge Richard A. Facemire also presided over Court on Thursday, March 15, 2012 and heard 4 cases as follows:
• One fugitive from justice, Geovanic Berrios, waived extradition back to New York and authorities there have until 4:00 PM on Monday, March 26, 2012 to pick him up or Central Regional Jail will release him.
He was represented by Daniel Grindo.
• Two juvenile cases were heard and completed.
• A bench warrant was issued for the arrest of Holly McCraw formerly of Burnsville, but whereabouts unknown at this time for failure to appear for revocation of probation.
Bond was set at $200,000.00 cash only.
Gilmer County Circuit Court Report – 03.12.12
On Monday, March 12, 2012 Chief Judge Alsop presided over his motion day.
• One fugitive from justice from Maryland, Nevelion Short, waived extradition back to his state.
Imprisonment Status: Pre-Trial Felon
Short, Nevelion Deforst
||Short, Nevelion Deforst
||Central Regional Jail
Offender Court Order Information
|Court Info Number
||Issuing Agency Location
||GILMER COUNTY - Bail Amount: $0.00
He was represented by Daniel Grindo of Gassaway and authorities in Maryland have until 4:00 PM, Wednesday, March 21, 2012 to pick Short up or he will be released from Central Regional Jail.
• State of West Virginia vs. John Carder
He had a bench warrant issued against him last week which was later quashed by Judge Alsop and set for hearing at 9:00 AM today appeared with his attorney James Hawkins Jr. of Buckhannon and moved for continuance of his trial until the next term of Court.
Judge Alsop denied the motion to continue to the July 2012 term of Court and set his trial for Tuesday, June 12, 2012 at 9:00 AM with pretrial motions to be heard at 1:00 PM on Friday, June 01, 2012.
• A juvenile case was heard and reset for 9:00 AM on Monday, June 11, 2012.
• Another was heard and set for 9:15 AM on Monday, June 11, 2012.
• A third juvenile was heard and reset for Monday, April 09, 2012 at 11:15 AM.
United States Court of Appeals, Fourth Circuit: U.S. v. HENRY (Rosedale, WV)
U.S. v. HENRY
UNITED STATES OF AMERICA, Plaintiff-Appellee,
KIMBERLEY HENRY, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
EDGAR HENRY, Defendant-Appellant.
Nos. 10-5201, 10-5219
United States Court of Appeals, Fourth Circuit.
Argued: December 06, 2011.
Decided: March 08, 2012.
ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellants.
Shawn Angus Morgan, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
ON BRIEF: Charles T. Berry, Fairmont, West Virginia, for Appellant Edgar Henry.
William J. Ihlenfeld, II, United States Attorney, Clarksburg, West Virginia, for Appellee.
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.
BARBARA MILANO KEENAN, Circuit Judge.
Kimberley Henry and her husband Edgar Henry (collectively, the Henrys) were convicted in a jury trial of two offenses related to their conduct of growing marijuana at their home in a rural area of West Virginia. The Henrys raise three issues in this appeal: 1) whether a thermal-imaging search warrant that led to the seizure of marijuana on their property was valid; 2) whether the district court erred in excluding testimony that Edgar Henry used marijuana for medical purposes; and 3) whether the district court erred in determining that the Henrys were ineligible to receive “safety valve” sentencing consideration under 18 U.S.C. § 3553(f). Upon our review of these issues, we affirm the Henrys’ convictions and sentences.
In September 2003, Sergeant Steve Jones of the West Virginia State Police received information that the Henrys were growing large amounts of marijuana at their residence in Rosedale, West Virginia. Jones relayed this information to Sergeant James M. Manning, a West Virginia State Police officer who also was serving as a deputy task force agent with the United States Drug Enforcement Administration. After receiving this information, Manning began investigating the Henrys.
On July 13, 2004, Manning filed an application for a search warrant to conduct a thermal-imaging scan of the Henrys’ property. In his affidavit filed with the warrant application, Manning stated that he received information from a deputy sheriff that a confidential informant had revealed that the Henrys had been growing and distributing marijuana in the Rosedale area for the past four years.
The affidavit also contained the information that Manning received from Sergeant Jones, including an account from an anonymous source who stated in 2003 that the Henrys maintained a large indoor marijuana “grow operation” at their residence near Rosedale. This source also stated that the Henrys once had lived in New Jersey. Manning confirmed with the West Virginia Department of Motor Vehicles that the Henrys’ physical address was in Rosedale, West Virginia, which is located in Gilmer County. Manning additionally confirmed that Kimberley Henry‘s social security number was issued in New Jersey.
Also in the affidavit, Manning stated that in November 2002, two West Virginia State Police officers interviewed an inmate named Phillip Lee Sandy in a jail in Braxton County, West Virginia, regarding his knowledge of drug-related activity. Sandy told the officers that he had purchased small quantities of high-quality marijuana from Kimberley Henry on four or five occasions. Sandy also stated that the Henrys had constructed a building behind their residence to grow marijuana hydroponically, and Sandy provided the officers with a hand-drawn map of the Henrys’ property.
According to Sandy, the Henrys moved to West Virginia from the Washington, D.C. area. Manning corroborated this information when he conducted a criminal history review and learned that Edgar Henry had an arrest record in certain areas of Maryland located near Washington, D.C. Manning’s investigation further revealed that Edgar Henry’s first arrest in that area, in 1972, was based on drug-related charges, and that his second arrest in Maryland, in 1993, was for possession of marijuana.
Manning corroborated Sandy’s description of the Henrys’ property by conducting an aerial surveillance of the property in February 2004. During that surveillance, Manning observed a tan-colored residence with an attached, enclosed walkway leading to a building behind the residence.
As stated in the affidavit, several weeks after conducting the aerial surveillance, Manning and two other officers walked “along the roadway in the area of the [Henrys’] residence” to view the property. Manning observed in the rear building two large hooded lights and two ceiling fans, and heard the sound of a “large ventilation fan” emanating from the roof of the building.
The affidavit also stated that in May 2004, Manning learned that Edgar Henry had been arrested and charged with assault and disorderly conduct after threatening individuals at a grocery store in Rosedale who were trying to organize a “neighborhood watch program.“ Following Henry’s arrest, police discovered marijuana on his person, and Henry later was charged with possession of marijuana.
Manning also included in the affidavit the fact that Kimberley Henry did not have an arrest record. However, Manning further stated that Kimberley Henry appeared to have a particular interest in a 2002 federal prosecution of another individual from Rosedale who was charged with growing marijuana. A West Virginia State police officer had informed Manning that Kimberley Henry was present for every court appearance made by that defendant.
Finally, Manning stated in the affidavit that he received power usage records for the Henrys’ residence, which revealed an average bi-monthly electric usage of 10,870 kilowatt hours, with an average cost of about $728 for each bi-monthly billing period. Additionally, Manning confirmed that the Henry residence was not heated by electric power, but by gas.
After reviewing this affidavit along with Manning’s application, a magistrate judge concluded that there was probable cause to support a thermal-imaging scan of the Henrys’ property, and issued the requested search warrant. Manning executed the thermal-imaging search warrant in July 2004.
During the search, although the outside temperature in the area was about 58 degrees Fahrenheit, an air conditioning unit was operating in the rear building. However, the air conditioning unit in the residential portion of the property was not operating. Using night-vision goggles and a thermal-imaging unit, Manning and another officer determined that the rear building emitted a high amount of heat, which was much greater than the residential portion of the structure.
Relying on the information obtained during this search, along with the information provided in his initial affidavit, Manning applied for a second search warrant to conduct a physical search of the Henrys’ property. The magistrate judge issued the requested warrant.
During the physical search of the Henrys’ property, the police seized numerous items, including a total of 85 marijuana plants in various stages of development. The police also seized evidence of a recent harvest, including 31 marijuana plant roots.
Additionally, the police discovered various types of “growing equipment,“ processed marijuana, triple-beam scales, gallon-sized plastic bags, drug usage paraphernalia, and a binder containing handwritten notes, most of which were entered by Kimberley Henry and involved the growing of marijuana from 2000 through 2002. Finally, the police seized $1,800 in cash, in the form of $100 bills.
The Henrys were indicted in the United States District Court for the Northern District of West Virginia on three counts: 1) conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B); 2) aiding and abetting in the manufacture of 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and 3) aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.
The Henrys filed a motion to suppress the evidence obtained from the searches of their property, arguing that the warrant application for each search was insufficient, and that the initial affidavit for the thermal-imaging search warrant was so deficient that it constituted a “bare bones” affidavit. The magistrate judge conducted hearings on the Henrys’ motion and issued an opinion recommending that the district court deny the motion. The district court agreed with this recommendation and denied the Henrys’ motion to suppress.
Also before trial, the district court considered the government’s motion in limine. In that motion, the government sought to preclude the Henrys from offering testimony that Edgar Henry personally used the marijuana grown by the Henrys to alleviate symptoms relating to his medical illnesses. The purported purpose of this testimony was to show that the Henrys lacked any intent to distribute the marijuana being grown on their property.
After conducting a hearing, the district court granted the government’s motion in limine. The district court concluded that the Supreme Court’s holding in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001) (Oakland Cannabis), prohibited the Henrys from presenting a “medical necessity defense.“ However, the district court permitted the Henrys to offer evidence that they possessed and manufactured the marijuana solely for their personal use.
The case proceeded to a jury trial. The jury convicted the Henrys of two charges, the charge of conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, and the charge of aiding and abetting in the manufacture of 100 or more marijuana plants. The jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.
The Henrys’ pre-sentence reports reflected that the Henrys both were subject to a five-year mandatory minimum sentence under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). The Henrys objected to the pre-sentence reports and contended that they should not be subject to the statutory minimum sentence because they qualified for a sentencing benefit under the “safety valve” provision of 18 U.S.C. § 3553(f). In support of their argument, the Henrys relied on a written “offer of proof” submitted to the district court before sentencing, in which the Henrys described the details of their marijuana operation.
After conducting a sentencing hearing during which the parties presented testimony and other evidence, the district court determined that the Henrys were not credible, and that they had not provided the government with all relevant information relating to the offenses. Thus, the district court concluded that the Henrys failed to establish that they qualified for safety valve relief. The district court imposed on each defendant the mandatory minimum sentence of 60 months’ imprisonment. The Henrys timely filed this appeal.
We first consider the Henrys’ contention that the district court erred in denying their motion to suppress. The Henrys’ argument on this issue is limited to challenging the sufficiency of the affidavit submitted to obtain the thermalimaging search warrant. We review this issue of law de novo. See United States v. Wellman, 663 F.3d 224, 228 (4th Cir. 2011).
A judicial officer’s determination of probable cause generally is accorded “great deference” by reviewing courts. Illinois v. Gates, 426 U.S. 213, 236 (1983); Wellman, 663 F.3d at 228. In deciding whether there was probable cause to support the issuance of a search warrant, we consider whether the known facts and circumstances were sufficient such that a reasonable person could conclude that the described evidence would be found in a particular place. Wellman, 663 F.3d at 228. The probable cause standard “is not defined by bright lines and rigid boundaries” but “allows a [judicial officer] to review the facts and circumstances as a whole and make a common sense determination” whether there is a fair probability that evidence of a crime will be found. Id. (quoting United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005)).
The Henrys assert that the affidavit at issue failed to meet this probable cause standard. The Henrys focus their argument on the information provided by the two unidentified sources and by Sandy, the cooperating inmate. According to the Henrys, these sources failed to explain how they obtained the information they relayed to the authorities, and failed to provide sufficient details to demonstrate that they were credible and reliable sources. The Henrys further contend that Sandy’s information was “stale,“ because he was interviewed by the police more than twenty months before the thermal imaging search warrant was issued. Additionally, the Henrys argue that although Manning submitted information to the magistrate judge regarding power usage at the Henrys’ property, Manning failed to show that such usage was irregular.
We disagree with the Henrys’ arguments, because they isolate certain aspects of the affidavit to the exclusion of other supporting facts and circumstances. Initially, we observe that the Henrys accurately identify certain weaknesses in the affidavit concerning the information obtained from Sandy and the two unidentified sources. The individual statements from each of these three sources were not based on recent information. Rather, the sources only were able to state that the Henrys had grown large amounts of marijuana at their residence in the past, and that the sources had purchased marijuana from the Henrys at some unidentified earlier time.
Because these accounts were not based on recently acquired information, the accounts, if considered separately, may well have been insufficient to establish probable cause. However, when considered collectively, that information demonstrated that three individuals with no connection to one another provided consistent statements regarding the Henrys’ alleged illegal conduct involving the manufacture and distribution of marijuana.
We also observe that many details provided by these three sources were corroborated by Manning’s independent investigation. Manning confirmed that Kimberley Henry had lived in New Jersey, that the Henrys likely moved to West Virginia from the Washington D.C. area, and that the Henrys’ property, when viewed by Manning during an aerial surveillance, appeared as described by Sandy. In addition, the magistrate judge’s determination was supported by other details, including Edgar Henry’s threats to residents seeking to organize a neighborhood watch program, and Kimberley Henry’s acute interest in court proceedings involving a person accused of manufacturing marijuana in the Rosedale area.
Regarding the electric power usage information submitted to the magistrate judge, the Henrys correctly observe that Manning failed to provide information to assist the magistrate judge in determining whether the Henrys’ power usage was excessive for a property of that size. However, Manning did determine that the residence was heated by gas, rather than by electric power. Therefore, the magistrate judge was able to consider the Henrys’ electric power usage information in that relevant context.
In view of the collective strength of this information, we conclude that the affidavit provided a sufficient basis to establish probable cause for issuance of the thermal-imaging search warrant. Therefore, we hold that the district court did not err in denying the Henrys’ motion to suppress.
We next consider the Henrys’ argument that the district court erred in granting the government’s pre-trial motion in limine, thereby preventing the Henrys from presenting evidence that Edgar Henry used marijuana to improve symptoms related to his medical illnesses. The Henrys contend that the district court erroneously applied the Oakland Cannabis case in granting the motion in limine. We disagree with the Henrys’ argument.
We review a district court’s refusal to admit evidence under an abuse of discretion standard. United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009). A district court abuses its discretion when it acts in an arbitrary manner, when it fails to consider judicially-recognized factors limiting its discretion, or when it relies on erroneous factual or legal premises. Id. (citing United States v. Uzenski, 434 F.3d 690, 709 (4th Cir. 2006)).
We conclude that the district court did not abuse its discretion in limiting the scope of the Henrys’ defense based on the decision in Oakland Cannabis. In that case, the government filed an action seeking an injunction against a California cooperative to enjoin the cooperative from manufacturing and distributing marijuana to patients who qualified under California law to receive marijuana for medical purposes. 532 U.S. at 486-87. After the district court granted the government’s request for a preliminary injunction, the cooperative asked the court to modify the injunction to permit distributions that were “medically necessary.“ Id. at 488. The district court denied the cooperative’s request and, on appeal, the Ninth Circuit reversed the district court’s ruling. Id.
The Supreme Court disagreed with the Ninth Circuit’s decision. The Supreme Court held that the district court was not permitted to consider the cooperative’s medical necessity defense in fashioning injunctive relief, because medical necessity is not a defense to the conduct prohibited by the Controlled Substances Act (the Act), 21 U.S.C. § 801 et seq. Id. at 494.
In reaching this conclusion, the Court observed that the Act contained only one exception to the general prohibition of manufacturing marijuana or possessing marijuana with the intent to distribute, namely, the exception afforded to government-approved research projects. Id. at 489-90 (citing 21 U.S.C. §§ 823(f), 841(a)(1)). The Court further explained that for a drug to qualify as a Schedule I controlled substance under the Act, that drug cannot have any “currently accepted medical use” in treatment in the United States. Id. at 491 (citing 21 U.S.C. § 811). Thus, the Court reasoned that Congress, by including marijuana as a Schedule I controlled substance, made a determination “that marijuana has no medical benefits worthy of an exception” beyond the single exception for government-approved research stated in the Act. Id.
As the Henrys accurately observe, the facts and circumstances in Oakland Cannabis differ significantly from those before us in the present case. Here, the Henrys were not seeking to defend their acts of distribution of marijuana on the basis that marijuana provided some medical benefit. Rather, the Henrys sought to bolster their defense of personal use of marijuana by explaining their belief that marijuana had a beneficial impact on Edgar Henry’s health.
Despite this distinction, however, a critical component of the Supreme Court’s rationale in Oakland Cannabis is relevant here. As the Supreme Court explained, because Congress has determined that there is no medical benefit from the use of marijuana, such use cannot serve as a defense to conduct prohibited by the Controlled Substances Act. Given Congress’ determination, we cannot say that the district court acted arbitrarily or relied on an erroneous legal principle in determining that the Henrys’ reason for personally using marijuana should be excluded from evidence. Therefore, we conclude that the district court did not err in granting the government’s motion in limine.
Finally, the Henrys argue that the district court committed sentencing error in determining that they both were ineligible for safety valve relief under the provisions of 18 U.S.C. § 3553(f). Because a district court’s decision regarding the eligibility for such relief presents a question of fact, we review the district court’s decision for clear error. United States v. Aidoo, ___ F.3d ___, ___, slip op. at 11 (4th Cir. 2012) (citing United States v. Wilson, 115 F.3d 429, 432 (4th Cir. 1997)). This standard of review permits reversal only if this Court is “left with the definite and firm conviction that a mistake has been committed.“ United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 562, 573 (1985)). In conducting our review, we accord the district court’s credibility determinations great deference. United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
When applicable, the safety valve provision permits a district court to impose a shorter sentence for first-time offenders who otherwise would be subject to a mandatory minimum sentence. 18 U.S.C. § 3553(f); United States v. Withers, 100 F.3d 1142, 1146 (4th Cir. 1996). A defendant seeking this statutory relief must establish that (1) the defendant does not have more than one criminal history point; (2) the defendant did not use violence or possess a firearm in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense; and (5) no later than the time of sentencing, the defendant truthfully provided the government with all evidence and information the defendant had concerning the offense or offenses comprising the same course of conduct or a common scheme or plan. 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2; United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996).
In the present case, the district court concluded, and the government agrees, that the Henrys satisfied the first four requirements necessary to qualify for safety valve relief. Therefore, the only issue before us is the district court’s finding regarding the fifth requirement for safety valve relief, namely, that the Henrys failed to provide truthful information to the government concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. See 18 U.S.C. § 3553(f)(5).
The Henrys argue that they provided the district court with all relevant information regarding their marijuana operation. They also contend that they provided financial documentation supporting their contention of legitimate income, including evidence that they regularly received income from their rental of farm equipment. The Henrys maintain that based on these submissions, they satisfied the fifth requirement of 18 U.S.C. § 3553(f) and were entitled to application of the safety valve provision. We disagree.
As we have explained, section 3553(f)(5) “requires broad disclosure from the defendant” and mandates that a defendant supply the details of his own culpability. Aidoo, slip op. at 13-14. The district court is obligated to determine whether a defendant has truthfully provided the government with all known relevant information, and the court may consider any false statements a defendant may have made when evaluating the defendant’s credibility. Aidoo, slip op. at 14-15. (citing United States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir. 2004); United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000)).
In the case before us, the district court found that the Henrys were not credible witnesses, and that certain representations they made were inconsistent with a full and truthful disclosure of all relevant information. The district court first cited Kimberley Henry’s trial testimony, in which she stated that the $1,800 in cash seized by the authorities came from a rental payment received for leasing their farm equipment. The district court contrasted this testimony with other evidence presented by the government, which showed that the equipment rental was paid for by check, not in cash. The district court also stated that although the Henrys presented some evidence that a portion of the $72,000 flowing into and out of their bank accounts during the time period covered by the conspiracy may have come from legitimate sources, the court found that the general absence of financial records was consistent with cash income based on illegal drug sales.
In addition, the district court noted that several items seized during the search of the Henrys’ property, including the triplebeam scales and the large plastic baggies found in close proximity to 299 grams of marijuana, indicated that the Henrys were distributing marijuana and not merely using it as they had maintained. Based on these considerations, the district court determined that the Henrys did not truthfully disclose all relevant information as required by section 3553(f)(5). We hold that the district court did not clearly err in reaching this determination, which was supported on the several bases described above.
Our conclusion is not altered by the fact that the district court rested its decision in part on its finding that the Henrys were not truthful when they denied that they had distributed marijuana. Although the jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute marijuana, the issue remained at sentencing whether the Henrys truthfully disclosed all information regarding the $1,800 in cash seized by the police and the other undocumented income. Thus, the district court was entitled to evaluate the Henrys’ credibility on this issue, including whether their testimony revealed the true source of that income or instead was an attempt to obscure other illegal conduct related to the distribution of marijuana.
Based on the district court’s credibility finding, which we accord substantial deference, Layton, 564 F.3d at 334, and the several sound bases on which the district court relied, we hold that the district court did not clearly err in determining that the Henrys failed to carry their burden of proving that they satisfied the requirements of 18 U.S.C. § 3553(f)(5). Accordingly, we affirm the district court’s decision denying application of the safety valve provision.
For these reasons, we affirm the district court’s judgment.
G-FYI™: West Virginia Shield Law
On March 12, 2011 the West Virginia state legislature enacted H.B. 2159, adding §57-3-10, “Reporters’ Privilege,” to the Code of West Virginia. The statute, which was signed by Acting Governor Earl Ray Tomblin in April and took effect June 10, extends a qualified privilege with few limitations to reporters seeking to protect confidential sources of information, supplementing existing state constitutional protection.
Under the law, reporters cannot be “compelled to testify in civil, criminal, administrative, or grand jury proceedings” without “the consent of the confidential source.” Reporters also cannot be compelled “to produce any information or testimony that would identify a confidential source” without the consent of the source. The privilege may be overcome, however, when the testimony “is necessary to prevent imminent death, serious bodily injury, or unjust incarceration.”
The statute defines a reporter as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood, or a supervisor, or employer of that person in that capacity.” The law also extends to student journalists, “provided that [the] student reporter at an accredited educational institution … meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood.”
The West Virginia legislation also mandates that the section not be read “to limit any existing constitutional protections afforded any person under the United States or West Virginia Constitutions,” a provision which, in an April 06, 2011 report, the RCFP called “significant … in light of [West Virginia] courts’ general acceptance of the state Supreme Court’s articulation of a qualified reporter’s privilege in Hudok v. Henry.” In Hudok, 389 S.E.2d 188 (WV 1989), reporters claimed a privilege under the free press clause of the First Amendment and under Article II, Section 7 of the West Virginia Constitution to decline to answer questions or to divulge information obtained in the course of newsgathering. The Supreme Court of Appeals of West Virginia held “disclosure of a reporter’s confidential sources or news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” The original draft of the shield law contained the Hudok test, but the House Judiciary Committee ultimately omitted that language.
Media and First Amendment advocates supported the law, but not without some skepticism. In an Editor’s Log blog post on The Parkersburg (W. Va.) News and Sentinel website, News and Sentinel Executive Editor Jim Smith wrote, “the bottom line is with a strong shield law, the public gets information that may be vital to it and its understanding of events of the day or government-related activities.” But Smith also expressed concern: “It will be interesting to see how effective the law is in practice. Unfortunately, there always seems to be a broad difference between the intent and spirit of a law and how it is actually followed.”
Student Press Law Center (SPLC) Director Frank LoMonte praised the student journalist provision of the bill in a blog post on the organization’s website on March 14, saying the bill would make West Virginia’s shield law among the strongest in the nation for student journalists. In a March 10 column in the Charleston, W.Va. Daily Mail, two days before the law passed, LoMonte encouraged the West Virginia Legislature to recognize student journalists as it considered the measure. “With the ranks of full-time salaried journalists shrinking, unpaid college students increasingly are providing the news coverage that communities rely on to stay informed. Student journalists assume all of the same risks and responsibilities that professionals do, and they should be entitled to all of the same protections,” he wrote.
The new shield law may be applied for the first time after the Supreme Court of Appeals of West Virginia, the state’s highest court, held that a trial judge erred in ordering a newspaper to reveal the identities of anonymous sources and documents in a defamation suit. Lincoln Journal v. Hustead, No. 35734, 2011 W. Va. LEXIS 25 (W. Va. May 2, 2011)
In that case, The Lincoln (WV) Journal and individual reporters petitioned the Supreme Court of Appeals for a writ of prohibition to prevent Judge Jane Hustead from enforcing a September 14, 2010 order compelling them to reveal sources and newsgathering materials. Hustead’s order stemmed from a series of articles in The Lincoln Journal that alleged illegal campaign donations by the owner of a rival newspaper and other individuals to local candidates in 2008 primary elections. The reports cited several anonymous sources and Lincoln County Prosecuting Attorney William J. “Jackie” Stevens II. The stories also referred to copies of the criminal complaints that had been submitted to the paper and to Stevens. The state’s high court ruled May 02 that the lower court “was required to separately identify each allegedly defamatory article with specificity, each source therein that the plaintiffs sought through discovery, and thereupon conduct for each article a separate Hudok analysis,” rather than analyze them all together.
Because the lower court review will be conducted after the new shield law is in place, it may benefit the newspaper. David Barnette, The Lincoln Journal’s lawyer and general counsel for the West Virginia Broadcasters Association, told the RCFP for a May 09 story that when the case undergoes further review, the newspaper may avoid the Hudok analysis if the court applies the new shield law, although the law allows the reviewing judge to consider the Hudok factors if he or she chooses. By applying the Hudok test, Barnette said, “The court can go beyond what the Legislature can do.”
Since West Virginia trial judge erred when she ordered a newspaper to reveal the identities of anonymous sources and documents in a defamation suit against the paper, the state’s highest court ruled differently.
Click to Read the Ruling
The Supreme Court of Appeals of West Virginia returned the case to the lower court, which must identify and analyze each allegedly defamatory statement and the confidential source who made the statement separately.
Cabell Circuit Judge F. Jane Hustead failed to undertake this specific analysis when she ordered The Lincoln Journal to reveal anonymous sources referred to in a series of articles alleging that the owner of a rival newspaper and other individuals illegally contributed money to local candidates in the 2008 primary elections, the Supreme Court of Appeals in Lincoln Journal v. Hon. Jane F. Hustead, Judge.
Click for Additional Information
Gilmer County Circuit Court Report - 03.08.12
On Wednesday, March 07, 2012 Chief Judge Jack Alsop heard 2 juvenile hearings with one being rescheduled for Tuesday, March 20, 2012 at 10:00 AM.
On Thursday, March 08, 2012 both Chief JudgeJack Alsop and Judge Richard Facemier held Circuit Court in Gilmer County.
After Chief Deputy Larry Gerwig opened Court Chief Judge Alsop began running through his 4 page docket.
Trials were set in 4 cases as follows:
• State of West Virginia vs. Joshua Allen Hoover
The case was set for first trial on Wednesday, March 14, 2012.
His attorney is David Karickhoff of Sutton, WV.
• State of West Virginia vs. Karen Burns
The case was set for second trial on Wednesday, March 14, 2012.
Her attorney is Kevin Duffy of Clay, WV.
• State of West Virginia vs. Charles Emerson
The case was set for third trial on Wednesday, March 14, 2012.
He is represented by Kevin Duffy of Clay, WV.
• State of West Virginia vs. Matthew Andrew Capelety
The case is now set for the 1st trial on Tuesday, March 27, 2012.
He is represented by Christopher Moffatt of Charleston.
• Two cases had pre-trial motions heard in them, but Judge Alsop recessed Court while the prosecutor contacted Cpl. R.P. Smith to testify as a witness in the matters.
Then Judge Richard A. Facemire began his court hearings, which were all scheduled for 9:00 AM as follows:
• In the case of State of West Virginia vs. Jason M. Pritt,
Judge Facemire sentenced him to 1-5 years in the penitentiary upon his former plea of guilty to conspiracy to operate a clandestine meth lab.
He received no fine but customary court costs plus court appointed attorney fees.
He was given credit for any time previously served in jail.
After seeing on Pritt’s presentence investigation that he made $36.00 per hour, Judge Facemire ordered him to complete a new financial affidavit to see if he would qualify for court appointed attorney for purposes of appeal, if he desires to appeal.
Probation was denied in the matter.
He was allowed to self-report to Central Regional Jail on Friday, March 16, 2012 by Noon.
Pritt was represented by Clinton Bischoff of Summersville.
• Three juvenile hearings were also conducted by Judge Facemire, with one being reset for Tuesday, May 29, 2012 at 9:00 AM and one being reset for Friday, March 23, 2012 at 9:00 AM. The third was not set for further hearing.
After Judge Facemire finished with his hearings, Judge Alsop began again to complete his docket.
• State of West Virginia vs. Thomas William Bonnell Jr.
He did not appear for status.
However, his attorney Kevin Duffy indicated he was wounded over the weekend and was currently in the hospital.
Upon his release from the hospital he is to be taken to Central Regional Jail and lodged there until further hearing in his case.
• State of West Virginia vs. John Robert Carder
With neither he nor his attorney, James Hawkins, appearing for status, a bench warrant was issued for his arrest and bond was set at $150,000.00.
• Various pre-trial motions were heard in the case of State of West Virginia vs. Charles Emerson and Matthew Capelety, with many of them being denied.
• State of West Virginia vs. Jerry Wayne Blackwell
The case was set for plea on Tuesday, March 13, 2012 at 10:00 AM.
He is represented by David Karickhoff of Sutton.
• A juvenile hearing was to be heard at 3:00 PM.
However, upon attorney David Karickhoff being unable to appear on time Judge Alsop set it for hearing at 3:30 PM on Tuesday, March 13, 2012.
Judge Alsop will return to Glenville on Monday, March 12, 2012 for his regular motion day.
G-otcha™: Federal Grand Jury Indicts Braxton County Individuals – 03.06.12
Seven individuals were named in six Indictments returned by a Federal Grand Jury sitting in Clarksburg, West Virginia, on March 06, 2012.
Among them United States Attorney William J. Ihlenfeld, II, announced that:
JOCELYN M. GRAHAM, age 27, of Duck, West Virginia, was named in a two-count Indictment.
Count One charges GRAHAM with conspiracy to distribute methamphetamine and oxycodone from June to August 03, 2010.
Count Two charges GRAHAM with the illegal use of the United States mail on August 03, 2010, to facilitate the distribution of methamphetamine and oxycodone.
If convicted, GRAHAM faces a maximum exposure of 20 years imprisonment and a fine of $1,000,000 as to Count One and 4 years imprisonment and a fine of $250,000 as to Count Two.
This case will be prosecuted by Assistant United States Attorney Robert H. McWilliams, Jr. and was investigated by the United States Postal Inspection Service.
It should be noted that the charges contained in the above-referenced Indictments are merely accusations and not evidence of guilt, and that each defendant is presumed innocent until and unless proven guilty.
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