Wednesday, January 20, 2016

Cross-examination of Allocution is Plain Error

In United States v. Moreno, No. 14-1568,  2016 WL 53796 (3d Cir., Jan. 5, 2016), Defendant was charged with wire fraud conspiracy, in violation of 18 U.S.C. §§ 1343, 1349 and 2, for his participation in a mortgage fraud scheme. Specifically, Defendant, an unlicensed appraiser, provided inflated appraisals to his co-conspirators who used them to secure loans for unqualified buyers. The jury returned a guilty verdict for all of the counts in the indictment. Defendant challenged his conviction on three grounds: violation of his rights under the Sixth Amendment Confrontation Clause, violation of his right to allocution, and error in application of a sentencing enhancement.

At trial, defense counsel impeached a government cooperator as coloring his testimony in exchange for sentencing concessions.  The prosecutor rehabilitated the cooperator by having him read into the record portions of memoranda written by a federal agent, documenting the cooperator’s proffer sessions.  The Third Circuit held this to be a Confrontation Clause violation, as the memoranda were statements of the agent rather than the cooperator, even though the memoranda purported to document the cooperator’s statements.  The Circuit found the error harmless, however, under the specific circumstances of this case.

The Third Circuit also concluded that sufficient evidence was presented at trial to support the application of the four-level sentencing enhancement for more than 50 victims under U.S.S.G. § 2B1.1(b)(2)(B). Specifically, the court determined that the evidence supported a finding  that Defendant had provided more than 110 fraudulent appraisals during the course of the mortgage fraud conspiracy, and that unsophisticated buyers either purchased the fraudulent appraisals or were induced to purchase properties at prices that were well above their true value.

Defendant also claimed that his right to allocution had been violated when the sentencing court permitted the prosecutor to cross-examine him during his allocution. Citing Federal Rule of Criminal Procedure 32, as interpreted by United States v. Ward, 732 F.3d 175 (3d Cir. 2013), cert. denied, 134 S.Ct. 2684 (2014), the Third Circuit determined allowing cross-examination of allocution is plain error because it is contrary to the purpose of allocution, i.e., to allow a defendant to personally address the sentencing court and present mitigating evidence. The court concluded that Defendant did not attempt to testify or challenge the facts of the case, which may have warranted cross examination. To the contrary, Defendant merely presented information about himself and his acceptance of responsibility. Consequently, the sentencing court committed plain error in allowing to prosecutor to conduct the cross-examination during allocution in contradiction of clear authority, namely Rule 32 and Ward. Allocution error is presumed prejudicial on plain-error review, but the Court noted that there was evidence of actual prejudice here. Both the prosecutor and the sentencing court relied upon Defendant’s responses to the cross-examination during allocution in recommending and fashioning his sentence.

The Third Circuit also noted that even if the sentencing court had not committed plain error, the Court would have invoked its supervisory authority to prohibit cross-examination during allocution.

Tuesday, December 22, 2015

United States v. Doe, No. 13-4274, Opinion Published Then Vacated.

This case concerns an appeal from the denial of a 28 U.S.C. §2255 motion filed in 2012 and a request to reopen a separate §2255 motion filed in 2008.  Petitioner was sentenced in federal court in 2003, under the then mandatory Sentencing Guidelines, as a career offender. The procedural and legal history of the case are especially complex, and the case presents a number of procedural and jurisdictional questions, including disputes over statute of limitations, retroactivity, collateral review, and mootness. The Third Circuit published an opinion on this case on December 9, 2015, remanding the case for further proceedings.  However, the Court subsequently vacated the opinion and granted a petition for rehearing.  A new opinion will be filed following rehearing.

Friday, October 02, 2015

Court denies suppression challenge, finding shareholder and corporate executive did not have reasonable expectation of privacy in employees' offices, employees' computers, or electronic files located on network server, but reverses and remands for new loss calculation in government contracts fraud case

In a matter of first impression, the Court, in United States v. Nagle, Nos. 14-3184, 14-3422 (3d Cir. Sept. 30, 2015), held that defendant, a shareholder and corporate executive, did not have a reasonable expectation of privacy in his employees' offices, employees' computers, or the electronic files located on the company's network server, as required to challenge the search and seizure of the corporate offices.

Defendants Nagle and Fink were co-owners and executives of concrete manufacturing and construction corporations specializing in state highway construction and mass transit projects. The defendants devised and executed a scheme to defraud the United States Government by obtaining subcontracts set aside for disadvantaged business enterprises (DBE). During the execution of two search warrants at the corporations' compound, eleven employee computers plus the network server were seized and imaged. Defendant Nagle moved to suppress the electronic evidence recovered during these searches. The District Court denied the suppression motion, holding that, while Nagle may have had an expectation of privacy in his official capacity as an officer and executive of the companies, Nagle had no personal expectation of privacy in the seized information.

Following a string of cases from other circuits, the Third Circuit ruled, as a matter of first impression, that a shareholder or company executive may not challenge a search of corporate property based merely on his status as a shareholder or executive. He may only challenge the search if he shows some personal connection to the places searched and material seized and protected those places or materials from outside intrusion. Here, Nagle failed to show that he used the employees' offices or computers or that he ever accessed other employees' emails or files on the network server. Accordingly, because Nagle failed to show a personal connection to the computers or files, he had no reasonable expectation of privacy in those items and no basis to move for suppression.

Turning to the loss analysis, the defendants challenged the District Court's determination that they were responsible for the face value of the DBE contracts received without any credit for actual work performed on the contracts. The Third Circuit disagreed, finding that the amount of loss Nagle and Fink were responsible for was the face value of the DBE contracts minus the fair market value of the services they provided under those contracts. The Court found that such an offset would be due regardless of whether it applied U.S.S.G. §2B1.1 Application Note 3(A) (standard loss definition) or Note 3(F)(ii) (special application note for loss in "government benefit" cases). Accordingly, the Court vacated the defendants' sentences and remanded for a new loss calculation applying the appropriate credit for the fair market value of the services rendered under the contracts.

Monday, September 21, 2015

“Innocent Round Trip” Exception Not Applicable to Violation of 18 U.S.C. § 2423(b)

In United States v. Schneider, Nos. 12-1145 and 13-1491, 2015 WL 5235131 (3dCir., Sept. 9, 2015), Defendant was charged with one count of traveling in foreign commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (2000), and one count of transporting an individual in foreign commerce with the intent that such individual engage in illegal sexual activity, in violation of 18 U.S.C. § 2421 (2000).

Defendant was an American attorney and philanthropist who initiated a sexual relationship with an underaged ballet dancer from Russia whom he sponsored. Defendant met the young dancer when he was 12 years old. By the time the dancer was 14 years old, he and Defendant were living together in Moscow. Defendant and the young ballet dancer traveled between the United States and Russia twice to allow the young dancer to study ballet. Eventually, the dancer’s family learned about the relationship and filed a civil suit against Defendant in 2009. However, when law enforcement officials learned about the relationship, the civil suit was stayed and federal criminal charges were filed against Defendant in 2010.

At trial, the jury convicted Defendant of the traveling charge under § 2423(b), but found Defendant not guilty of the transporting charge under § 2421. The jury based its acquittal on the “innocent round trip” exception to § 2421, as enunciated in Mortensen v. United States, 322 U.S. 369 (1944). Defendant appealed his conviction under § 2423(b) on several grounds.

Defendant challenged the trial court’s refusal to apply the “innocent round trip” exception to his transporting charge under § 2423(b). As a matter of first impression in the Third Circuit, the court ruled that the “innocent round trip” exception did not apply to a charge of transporting under § 2423(b) . In Mortensen, the defendants operated a brothel. On one occasion, the defendants took a vacation, accompanied by two women employed at the brothel. However, no illegal sexual conduct occurred during the vacation. The Supreme Court concluded that the trip at issue was a “complete break or interlude” in the illicit sexual  activity. As the trip was “not undertaken for immoral ends,” it did not violated § 2421.

Defendant argued that the court should interpret § 2421 and § 2423(b) similarly. While both statutes involve traveling with the intent or purpose to engage in illegal sexual activity, the court concluded that the prohibited conduct under each statute was sufficiently dissimilar. Specifically, the Third Circuit ruled that, unlike the trip in Mortensen, Defendant’s trips did not constitute a “complete break or interlude” in the illicit sexual conduct. To the contrary, the court concluded that Defendant hosted the trips as part of his ongoing scheme to maintain his sexual relationship with the young ballet dancer.

The Third Circuit also upheld the trial court’s denial of Defendant’s motion to dismiss the indictment as untimely under the federal statute of limitations, concluding that Defendant’s conduct fell under the exception provided by 18 U.S.C. § 3283, which extends the statute of limitations for child sexual abuse offenses. The Third Circuit rejected Defendant’s challenge to the trial court’s refusal to admit evidence regarding his inability to seek proper medical treatment for a non-life threatening condition during his pre-trial incarceration. The Third Circuit also upheld to the trial court’s admission of excerpts from a film which Defendant had shown to the young dancer/victim, depicting a similar relationship between a young dancer and an older patron. The Third Circuit also concluded that Defendant had not met his burden to prove newly discovered evidence regarding the victim’s deposition testimony from the civil suite required a new trial. The Third Circuit also upheld the lower court’s application of the cross reference under U.S.S.G. §§ 2A3.2(c)(1) and 2A3.1, related to child sexual abuse offenses.  

Friday, September 04, 2015

Court examines White v. Woodall, reaffirms grant of habeas relief due to Bruton violation.

Washington v. Secretary, No. 12-2883, 2015 WL 5103330 (3d Cir. Sept. 1, 2015),

In an opinion by Judge Fisher, the panel reaffirms its earlier decision granting habeas relief because of a Bruton violation.  At Washington's trial, the prosecution introduced a statement by his codefendant that redacted Washington's name and replaced it with generic terms.  One codefendant, Taylor, testified that Washington was the driver, who stayed in the car while two other accomplices entered, shot and killed two store employees, and stole cash from a safe.  Taylor claimed Washington entered the store following the shootings and helped remove the cash.  Taylor testified at trial and was impeached on cross-examination.  Then a detective read a redacted version of the confession of a non-testifying codefendant, Waddy, in which Washington's and a fourth defendant's names were replaced with phrases like "they guy who went into the store" and "the driver."
The district court and the 3d Circuit granted habeas relief, relying on the combined holdings of Bruton, Richardson v. Marsh, and Gray v. Maryland for the proposition that no reasonable reading of those cases can tolerate a redaction that would be "transparent to the jurors."  Here, the redactions were transparent because Taylor had explicitly identified Washington as the driver.

The Supreme Court granted certiorari, vacated, and remanded for further consideration in light of White v. Woodall(which held that a state court decision merely declining to "extend" a SCTOUS precedent cannot be an unreasonable application of clearly established federal law under AEDPA).

 Judge Fisher acknowledges how difficult the AEDPA "unreasonable application" test is to meet, and stresses that "applying a general standard to a sepcific case can demand a substantial element of judgment," requiring deference by habeas courts.  In his reading, the distinction between Richardson v. Marsh, which upheld the use of a redacted confession, and Gray v. Maryland, which disapproved it, was that in Richardson the redactions removed all mention of the existence of the nonconfessing defendant.
“Taken together, the current state of the law is that there is a Confrontation Clause violation when a non-testifying codefendant’s confession is introduced that names another codefendant, Bruton, 391 U.S. at 126, or that refers directly to the existence of the codefendant in a manner that is directly accusatory, Gray, 523 U.S. at 193-94. That is because such statements present a ‘substantial risk that the jury, despite instructions to the contrary, [will] look[] to the incriminating extrajudicial statements in determining [the defendant’s] guilt.’ Bruton, 391 U.S. at 126. But there is no violation if the confession is properly redacted to omit any reference at all to the codefendant, making it more likely that the jury will be able to follow the court’s instruction to disregard this evidence in rendering its verdict. Richardson, 481 U.S. at 208, 211. It is against this background that we assess whether the Pennsylvania Superior Court unreasonably applied clearly established federal law.” 
In Fisher's view, this is not a “close call” case that is subject to “fairminded disagreement.”  The Superior Court applied a blanket rule providing that a redaction was permissible as long as the jury had to apply an additional piece of information outside the confession to link it to the nonconfessing defendant.  This rule is "not a reasonable view of the law."
Fisher goes on to explain why, in contrast to Woodall, the state court ruling was not a mere refusal to extend the Bruton rule to a new context.
Thanks to Claudia Van Wyk, for providing this summary.

Monday, August 24, 2015

Habeas relief affirmed: government concedes unreliable fire-science and chromatography evidence has been discredited and Court finds remaining evidence not sufficiently “ample” to prove arson and murder beyond a reasonable doubt

In Han Lee v. Superintendent Houtzdale SCI, the Third Circuit affirmed habeas relief (under 28 U.S.C. § 2254) granted to a father who spent 24 years in prison for allegedly setting a fire that killed his daughter. 

First, the Court accepted the case on the merits, rejecting procedural challenges to the appeal. A notice of appeal is delivered when received by the clerk, regardless of when it was officially filed. (discussing Fed.R.Civ.P. 5(d)(2)). A notice of appeal is valid so long as it specifies the appealing party, designates the judgment being appealed, and names the court to which the appeal is taken, even if it violates a local electronic filing requirement. (citing Fed.R.App.P. 3(c)(1)). 

 The Court then reviewed magistrate’s report and recommendation for plain error, without AEDPA deference, consistent with the law of the case.  See Lee v. Glunt, 667 F.3d 397, 400–03 (3d Cir. 2012).  The magistrate found that Lee had shown “that the admission of the fire expert testimony undermined the fundamental fairness of the entire trial because the probative value of [that] evidence, though relevant, [was] greatly outweighed by the prejudice to the accused from its admission.” Lee, 667 F.3d at 403.  The Commonwealth conceded that the basis for fire-science and gas-chromatography evidence has now been discredited.  The Court found that the remaining evidence was not sufficiently “ample” to prove arson and murder beyond a reasonable doubt.  That evidence was: (1) alleged inconsistencies in the Korean-to-English interpretation of statements made by Lee in the hours following his daughter’s death, (2) a cultural stoicism construed as nonchalance, and (3) autopsy results which posited two alternate theories of cause of death, one wholly consistent with death in an accidental fire, and the other (strangulation) which had very little forensic support.

Tuesday, July 28, 2015

Martinez v. Ryan does not apply to excuse procedural default caused by attorney error at the state collateral appeal stage.

In Norris v. Brooks,No. 13-4448, the Court addressed a Rule 60(b) motion filed by a 2254 habeas petitioner who claimed that the case of Martinez v. Ryan, 132 S.Ct. 1309 (2012), called for the reopening of his federal habeas petition, previously denied in 2007.

Procedural background in Norris:
            In his state PCRA proceedings, Norris raised a claim of ineffective assistance of trial counsel (“IAC trial counsel”) for failing to move to dismiss on rule based and constitutional speedy trial grounds.  PCRA counsel raised the IAC trial counsel claim (poorly, citing the wrong dates) in the initial PCRA petition and then abandoned the claim, over Norris’s strenuous objections, on PCRA appeal.  Norris sought review of his IAC trial counsel/speedy trial claim in a 2254 federal habeas petition.  The federal habeas court denied his petition finding that the claim was procedurally defaulted because it was not raised at the PCRA appeal level. 

A recap of Martinez:
In Martinez v. Ryan, SCOTUS held that, under certain circumstances, attorney error at the initial collateral review stage could constitute cause for the procedural default of an IAC trial counsel claim in a federal 2254 proceeding.  For example, in Pennsylvania, the first time a defendant can claim IAC trial counsel is in a PCRA petition.  If the defendant fails to raise an IAC trial counsel claim in the PCRA petition, then the claim is normally considered procedurally defaulted and federal habeas court cannot review the claim.  Under Martinez, if the reason that the trial counsel-IAC claim was not presented in the initial PCRA petition was due to ineffective assistance of PCRA counsel, then it is possible that the PCRA counsel’s error constitutes cause and excuse for the procedural default and the federal habeas court may be able to review the trial counsel-IAC claim even though it was never presented in state court.  In this way, Martinez overruled Coleman v. Thompson, 501 U.S. 722 (1991).

Raising Martinez via Rule 60(b)(6) motions:
            Fed.R.Civ.Pro. 60(b)(6) allows for relief from civil judgments in “extraordinary circumstances.”  The question of whether SCOTUS’s decision in Martinez could constitute extraordinary circumstances allowing for the reopening of a federal habeas petition which had previously been denied due to procedural default under Coleman was addressed by the Third Circuit in Cox v. Horn, 757 F.3d 113 (3d Cir. 2014).  In Cox, the Court held that while Martinez, by itself, did not constitute extraordinary circumstances allowing for the re-opening of a federal habeas petition under Rule 60(b)(6), Martinez, in conjunction with other equitable factors, could potentially merit Rule 60(b)(6) relief.

No relief for Norris:
            The problem for Norris was that the procedural default of the IAC trial counsel-speedy trial claim occurred at the PCRA appeal level (according to the original federal habeas court) and not at the initial PCRA proceeding.  Because Martinez explicitly applied only to claims that were procedurally defaulted at the initial PCRA stage and not at the appellate stage, Norris’s appeal was denied.