An Appeal to Remember

In US v. Baldwin, a health care fraud case, the Court of Appeals for the DC Circuit refused to accept the government’s confession of error with respect to the court’s restitution order.   Finding that “there is reason to doubt whether the government’s position is correct,” the Court held that it was not plain error for the District Court to delegate its authority to determine Baldwin’s restitution obligations to the Bureau of Prisons during her incarceration, and to the Probation Office upon Baldwin’s release.

In American Arms International v. Herbert, the United States Court of Appeals for the Fourth Circuit  upheld the decision of the Bureau of Alcohol, Tobacco, Firearms and Explosives to revoke the firearms dealer’s license of American Arms International and deny the dealer’s separate application for a license in the name of a new company.

 “This appellate opinion affirms the important principle that any firearms dealer who ignores ATF’s warnings and fails to comply with the law can and should lose his license to sell guns,” said U.S. Attorney Rod J. Rosenstein. “A gun dealer cannot excuse its repeated failures to comply with known regulations that ATF brings to its attention by claiming mere negligence.”

 “Our goal has always been to educate Federal Firearms Licensees and promote voluntary compliance with federal regulations,” says ATF Special Agent in Charge Theresa R. Stoop. “However, in this instance Gilbert failed to account for 420 weapons demonstrating a willful disregard for these regulations.”

The Fourth Circuit noted that the arms dealer had failed to account for more than 420 weapons and concluded that “he has shown a profound indifference to the ATF’s numerous efforts to bring him into compliance.” The court concluded that “where a licensee receives official warning that his actions violate the [Gun Control Act] and his record of compliance does not change (or, in these cases, gets worse), it is permissible to infer ‘wilfulness.’” The Fourth Circuit relied upon the precedent of RSM, Inc. v. Herbert, 466 F.3d 316 (4th Cir. 2006), a similar case litigated by the U.S. Attorney’s Office.

In his press release, United States Attorney Rod J. Rosenstein thanked the Bureau of Alcohol, Tobacco, Firearms and Explosives for their work on the case. Mr. Rosenstein commended Assistant U.S. Attorney Ariana Wright Arnold, who is representing the United States in the litigation.

And finally, we have Arizona v. Gant from the Supreme Court today:




Mr. Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied respondents motion to suppress the evidence, and he was convicted of drug offenses.


The State Supreme Court reversed relying on Chimel v. California, 395 U.S. 752 , which required that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence. The State Supreme Court found that the circumstances of Gant’s arrest implicated neither of those interests and therefore the  search was unreasonable.


The USSC held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense for which the arrest is made.


Mr. Gant was arrested for driving with a suspended license, an offense for which police could not reasonably expect to find evidence in Mr. Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113. The search in this case was therefore unreasonable.


Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined except as to Part II-E.


The full opinion is available at:







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