Tuesday, August 26, 2014

WARNING: Cooperating defendant whose plea agreement includes appellate waiver and who files an appeal is in breach of plea agreement and subject to de novo resentencing where Government can withdraw U.S.S.G. §5K1.1 motion

United States v. Erwin, Appeal No. 13-3407 (3d Cir. Aug. 26, 2014)

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.

At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of conviction. The government moved for a five-level downward departure under §5K1.1, requesting that the court depart from offense level 39 to offense level 34, as opposed to departing from the statutory maximum of 240 months, and sentence Erwin within the resulting range (151 to 188 months). Erwin did not object. The court granted the government's motion and sentenced Erwin to 188 months imprisonment.

Erwin appealed, arguing that the district court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yielded an advisory Guidelines range above the statutory maximum. The government did not cross-appeal, but argued in response to Erwin's appeal that Erwin's sentence should be vacated and remanded for de novo resentencing where, in light of Erwin's breach of the appellate waiver, the government would seek a "modest" increase in Erwin's sentence.

The Third Circuit began by considering the nature and scope of Erwin's appellate waiver. It concluded that Erwin's appeal was within the scope of the waiver, the waiver was knowingly and voluntarily executed, and Erwin failed to raise any meritorious grounds for circumventing the waiver. The Court noted that its ordinary procedure in such a situation would be to enforce the waiver by dismissing the defendant's appeal, thereby affirming the defendant's sentence. Here, however, the government asked the Court to vacate Erwin's sentence so that it could pursue the remedies specified in the breach provision of the plea agreement, i.e., bring additional criminal charges or withdraw its §5K1.1. motion. The Court found that Erwin's decision to appeal despite waiving that right in his plea agreement resulted in a clear breach of the terms of the agreement. The Court further concluded that the appropriate remedy for Erwin's post-sentencing breach of the plea agreement was specific performance, i.e., de novo resentencing with the government relieved of its obligation to seek a downward departure.

In rendering its opinion, the Third Circuit also decided two procedural questions of first impression. First, the Court concluded that cross-appeal rule did not apply and consequently did not bar the government from seeking de novo resentencing. Second, the Court named its source of authority to grant a de novo resentencing in this case as 28 U.S.C. § 2106, which permits the Court to modify, vacate, set aside, or reverse any judgment lawfully brought before it for review and remand the cause for further proceedings.

Sunday, August 24, 2014

Circuit says that automobile exception is so expansive that it “essentially has obviated” the need for a search warrant as long as there is probable cause to believe that the car contains evidence of a crime.

United States v. Donahue, 13-4767, 2014 WL 4115949 (August 22, 2014)

After sentencing, defendant missed his turn in date in New Jersey.  He was found in New Mexico in his son’s Ford Mustang.  Over the course of five days, agents from two different agencies searched the car multiple times and eventually found a firearm magazine clip under the driver’s seat and a gun in a bag that was in the car – all without getting a warrant.  District court suppressed the evidence saying that there was no probable cause to search the car.  The Circuit reversed.
            Although there were numerous arguments the government could have raised, it only argued on appeal that probable cause existed and therefore no warrant was necessary.  Circuit agreed, stating that a search is justified whenever there is PC that evidence of a crime, not just contraband, is in the car – even if that evidence may otherwise seem innocuous.  Also, the continuing or completed nature of a crime is irrelevant to the PC analysis in this case.  It didn’t matter that defendant had already failed to report to prison and that he had already been arrested – there was still PC that evidence of his deliberate failure to report (such as false IDs) would be in the car.  Finally, it didn’t matter that the first agent who searched the car wouldn’t have done so of his own accord and only performed the search upon the request of another agent.  Probable cause is an objective inquiry and does not rise and fall on the subjective belief of the searching officer.
            More important than its probable cause conclusion were two statements by the Circuit:
First, if the search of the car is justified by probable cause, then law enforcement can search every part of the car including any contents that may conceal the object of the search (?!?!).  Because there was probable cause to search this car, the agents were allowed to go into any bag or suitcase inside the car. 
Second, probable cause does not dissipate after the car is immobilized because there is no exigency component to the automobile exception (again--?!?!).  Therefore, it did not matter that the government had the car for several days and could have easily gotten a warrant.  On top of that, the government was allowed to search the car as many times as it wanted. 
            Bottom line, as long as law enforcement had PC to search the car when they seized it, they could search everything inside it, for as long as they wanted to, as many times as they wanted to.
            There are some limitations (barely).  (1)  The Circuit deliberately stated that this case did not concern a situation in which the car is NOT in continuous control of law enforcement.  (2) There must be probable cause that contraband and/or affirmative evidence of a crime will be found.  The Circuit rejected the government’s argument that a search is permissible if there is PC that a search would reveal evidence refuting a potential affirmative defense.  (3)  Even though prison inmates and escaped prisoners generally have no legitimate expectations of privacy, the Circuit deliberately did not address whether a fugitive – one who failed to report to prison -- has a legitimate expectation of privacy.    

Conspiracy to distribute cocaine is a lesser included offense of conspiracy to distribute 5 kilos or more of cocaine. Therefore, trial court did not err in refusing to submit the question of weight to the jury until after it had returned a guilty verdict on the conspiracy to distribute.

United States v. Freeman, 09-2166, 10-4224, 2014 WL 4056553 (August 18, 2014)

Defendants Freeman and Mark were charged with a count of conspiracy to distribute 5 kilos or more of cocaine.  Conspiracy to distribute over 5 kilos of coke carries a higher statutory maximum sentence than conspiracy to distribute an unspecified amount of coke.  Therefore, under Apprendi, it is clear that the drug quantity was an element of the conspiracy count that was charged in the indictment. 
However, the trial court refused a defense requested jury instruction that to convict on the conspiracy count, the govt had to prove over five kilos of cocaine were involved in the conspiracy.  Instead, the trial court instructed that the government need only prove that a measurable amount of cocaine was involved in the conspiracy.  After the jury returned a guilty verdict on the conspiracy count, the trial court gave them a post-verdict question on whether the conspiracy involved 5 kilos or more of cocaine.  The jury was unable to reach a unanimous answer on the post-verdict question.
Third Circuit held that conspiracy to distribute under 28 USC § 841(a)(1) was a lesser included offense of conspiracy to district 5 kilos or more of coke under § 841(b)(1)(A)(ii)(III).  Therefore, under Fed.R.Crim.Pro. 31(c) – which allows defendants to be convicted of lesser included offenses of the offenses actually charged – the judge was allowed to charge on the lesser included offense.

Other holdings of interest in this case:
(1)  Judicial fact finding for purposes of calculating guidelines and imposing a sentence within the statutorily prescribed range does not violate Alleyne.  Trial court was allowed to make findings regarding the amount of drugs involved even though the jury was unable to reach a conclusion.  No indication on the record that the trial court believed any mandatory minimum applied and the ultimate sentence was below the statutory max. 
(2)  While the rules of evidence do not apply at sentencing, information used as a basis for sentencing under the guidelines must meet the “sufficient indicia of reliability standard.”  Such indicia of reliability may consist of the level of facts and details, corroboration or consistency with other evidence or testimony, or the opportunity for cross examination.  In the sentencing of one defendant, the trial court sufficiently explained the basis of its finding regarding the amount of drugs involved in the conspiracy.  However, in another defendant's sentencing, the court failed to sufficiently explain its finding regarding the amount of drugs.  Defense had objected to the drug amounts used to calculate the guidelines and remand was necessary for the court to give an adequate explanation of its acceptance or rejection of the defense argument.
(3)  Defendant's sixth Amendment right of confrontation was not violated and trial court did not abuse its discretion in preventing defense counsel from asking a cooperating witness whether he was selling drugs for anyone else “in the entire universe.”  The witness had already admitted that he had disclosed his other illegal affairs to law enforcement and the court would have allowed defense counsel to question about specific acts that he believed the witness failed to disclose.  Thus, defense counsel had adequate opportunity to cross-examine the witness.
(4)  Evidence was sufficient to show one overarching conspiracy (as charged in the indictment) rather than several individual conspiracies.  Therefore, no variance between the indictment and the evidence at trial and the trial court did not err in denying the R. 29.

Defendant who inherited over $400K did not violate his supervised release when he went on a spending spree instead of paying his restitution. Regardless of any bad faith on defendant’s part, district court failed to identify a specific condition that had been violated.

Bagdy was convicted of wire fraud (of course), sentenced to 36 months’ imprisonment plus three years’ supervised release, and ordered to pay over $500K in restitution.  One condition of supervised release was that Bagdy pay at least 10% of his monthly income toward restitution.  A wealthy aunt (don’t we wish we all had one) died and left him an inheritance of over $400K.  Bagdy told his probation officer about the inheritance and paid 10% of the inheritance for purposes of restitution.  The government filed a motion to modify the restitution order.  A hearing on that motion was then continued several times while Bagdy and the government tried to negotiate an amount that he would pay towards restitution.  Although Bagdy did pay an additional $60K towards restitution, he ultimately spent all but $52K of the inheritance (including $5,800 on flowers).

The government asked the district court to find Bagdy in violation of his supervised release because he had acted in bad faith by spending his inheritance rather than paying off his restitution or preserving the inheritance pending negotiations with the govt.  District court found him in violation and sentenced him to 6 months’ imprisonment.

Although the Circuit agreed that Bagdy’s conduct was “reprehensible,” the Circuit reversed because neither the govt nor district court identified a specific condition of supervised release that Bagdy violated.  He complied with the restitution condition when he paid 10% of the inheritance towards restitution.  Reversed and remanded so that the district court can find another condition of supervised release that Bagdy actually did violate … like honestly making monthly financial reports, including reports about his expenditures, to his probation officer.     

Wednesday, July 30, 2014

Circuit holds that the force required to support an abduction enhancement under § 2B3.1(b)(4)(A) is determined by an objective standard, and that a temporary taking of property may justify application of the loss enhancement under § 2B3.1(b)(7)(B).

(Rendell, Chagares, Jordan, J.)

Thomas Smith pulled his car off of the road, pretending to be disabled, and flagged down the manager of the local Citizens & Northern Bank, Kimberlea Whiting, who was driving home from the bank for lunch.  Smith’s motive was revenge:  He blamed the bank for initiating foreclosure proceedings on his house.  Smith drew a gun, which was stolen, and ordered Whiting to drive to the bank, saying she and another bank employee were going to pay for taking his house.  Once at the bank, Smith directed Whiting to drive to the rear parking lot.  Whiting, fearing he would shoot her there, continued past the lot. She ultimately slowed her Ford Explorer and rolled out of it and onto the street. When the Explorer came to a stop, Smith abandoned it and fled on foot.  Smith was convicted of carjacking, brandishing a firearm during a crime of violence, and possessing a stolen firearm after trial.

            The appeal challenged the district court’s application of two sentencing enhancements - - a four-level enhancement under § 2B3.1(b)(4)(A) for the victim’s abduction, and a one-level enhancement under § 2B3.1(b)(7)(B) for the victim’s loss. 

Section 2B3.1(b)(4)(A) of the Sentencing Guidelines applies “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A) (2012). The Court describes three predicates for the abduction enhancement.  First, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victims must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender's escape.

Here, Smith used force to control both Whiting and her vehicle by pointing a gun at her and directing her to drive to the bank.  He forced Whiting to accompany him to a new location. And Smith forced Whiting to return to the bank to facilitate his threatened revenge for the foreclosure on his home.

Smith’s challenge to the enhancement was based on the fact that Whiting disregarded some of his commands and ultimately escaped.  The Court declines what it calls Smith’s invitation to fashion an exception to the abduction enhancement for when a victim struggles with the offender to the point that he or she thwarts the intended criminal objective, explaining that the invitation “is based on the perverse logic that a victim's boldness lessens a criminal's culpability.”  Use of force is determined by an objective, not subjective, standard. “Thus, whether or not a victim struggles or disobeys orders, as long as a reasonable person would not have felt free to refuse the offender's commands, the predicate is satisfied.” The court makes explicit the holding that “the intended crime need not be accomplished for the abduction enhancement to apply.”  

            Smith next argues that the court wrongly applied the loss enhancement because Whiting's car was not “taken, damaged, or destroyed,” as those terms are used in § 2B3.1 of the Guidelines.  Application Note 3 in the Commentary to Section 2B3.1 defines “loss” for purposes of robbery as “the value of the property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1 cmt. n. 3.  Smith did not damage or destroy the vehicle and was only a temporary passenger.  The Court declines to limit “taken” to situations involving a permanent deprivation of property.  Following opinions from several other circuits, the Court holds that here, Smith exercised dominion and control, albeit temporarily, over the vehicle when he coerced Whiting, against her will and at gunpoint, to drive to the bank. Whiting's later escape did not erase that taking.  

The Court affirms the judgment of sentence.

Summary by Renee D. Pietropaolo

The Circuit explains that Fed.R.Evid. Rule 404(b) is “a rule of general exclusion” and reiterates the importance of a methodical approach by the proponent of prior act evidence and a carefully reasoned ruling by the trial judge.

The Circuit holds that in a trial for being a felon-in-possession of a firearm, 18 U.S.C. § 922(g), based on a theory of actual possession, the district court erred by admitting under Federal Rule of Evidence 404(b), evidence of the defendant’s prior convictions for unlawful weapons possession; it vacates the judgment and remands.  In a scholarly 53-page opinion, which is a must read for the defense bar, Judge Smith discusses the evolution of the prior bad acts rule from its English common law roots to the adoption of Rule of Rule 404(b). 

            The Circuit initially explained that when the Court calls Rule 404(b) a rule of inclusion, not exclusion, it “merely reiterates the drafters’ decision to not restrict the non-propensity uses of evidence.  The Rule provides prior act evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.  Fed.R.Evid.404(b)(2).  By introducing the list of permissible purposes with the words “such as” the drafters made clear the list was not exclusive, or otherwise limited to a strictly defined class. It does not suggest that prior offense evidence is presumptively admissible.  “On this point, let us be clear:  Rule 404(b) is a rule of general exclusion, and carries with it ‘no presumption of admissibility.’”  The Rule reflects the revered policy that an accused is tried for what he did, not who he is. 

The court then sets forth the 4-steps that must be taken before evidence is admissible for a non-propensity purpose. 

            First, the party seeking to admit evidence under Rule 404(b)  bears the burden of identifying a proper 404(b) purpose that is “at issue” in, or relevant to, the case.  In evaluating whether an identified purpose is “at issue,” courts should consider the “material issues and facts the government must prove to obtain a conviction.”  The Court stressed that the proponent’s “incantation of the proper uses of [prior act] evidence… does not magically transform inadmissible evidence into admissible evidence.  Rather, the proponent must identify a specific purpose that ‘is of consequence in determining the action.’ Fed.R.Evid. 401(b).” 

The “crucial” second step is for the proponent to explain “how the evidence is relevant to that purpose.  The Court reiterates that the government must explain how the evidence fits into a chain of inferences connecting the evidence to a proper purpose, no link of which is a forbidden propensity inference.  “We require this chain be articulated with careful precision because, even when a non-propensity purpose is ‘at issue’ in a case, the evidence offered may be completely irrelevant to that purpose, or relevant only in an impermissible way.” The court admonishes, “[d]espite our repeated instructions in this area, some proponents of Rule 404(b) evidence still fail to follow this course.”  The proffered evidence must be excluded if the proponent neglects or is unable to articulate this chain of inferences, and failure to exclude such evidence constitutes reversible error. 

The court emphasizes that these are distinct steps.  “The first step requires the proponent to identify a proper purpose that is pertinent to the case, whereas the second step requires the evidence tend to establish the identified purpose.” 

            Once the proponent has shown that the evidence is relevant for a proper, non-propensity purpose, the court must balance under Rule 403 whether the evidence is sufficiently probative, such that its probative value is not outweighed by the inherently prejudicial nature of the prior bad act evidence.  This balancing requires great care because few categories of evidence bring greater risk of prejudice to the accused under Rule 403. 

            Finally, if requested, the court must provide a limiting instruction.   

In Mr. Caldwell’s case, the prosecution failed to offer an acceptable, non-propensity purpose, i.e., one that is “at issue” in, or relevant to, the prosecution.  Again, in determining whether an identified purpose is at issue in a case, the Court begins by considering the material issues and facts the government must prove to obtain the conviction.  The government must proffer a logical chain of inferences consistent with its theory of the case.  Evidence is relevant if it has a tendency to make more or less probable a fact that “is of consequence in determining the act.”  Fed.R.Evid. 401(b).

The government’s theory was that Caldwell was in actual, not constructive, possession of the firearm:  Officers testified to seeing the firearm in Caldwell’s hands.  In the typical felon in possession case when the government proceeds on a theory of actual possession, knowledge is not at issue.  Absent unusual circumstances (such as when the defendant claims he did not realize the thing in his hand was a gun), the knowledge element in a felon in possession case is necessarily satisfied if the jury finds the defendant physically possessed the gun.  Nor is intent at issue in a felon in possession case because section 922(g)(1) does not require the government to prove the defendant intentionally possessed a gun.

The Circuit also rejects as improper the district court’s reasoning that a defendant puts knowledge at issue by claiming innocence.  Situations can arise during trial where a defendant could put knowledge at issue, for example, where a defendant testifies the thing in his hand was something other than a gun.  However, a defendant does not merely by denying guilt of an offense with a knowledge-based mens rea, open the door to admissibility of prior convictions of the same crime.  “Such a holding would eviscerate Rule 404(b)’s protection and completely swallow the general rule.

The Government also failed to articulate how Caldwell’s prior gun convictions are relevant to show knowledge that he possessed the gun.  It is not enough to merely recite a Rule 404(b) purpose.  The prosecution must “explain ‘exactly how the proffered evidence should work in the mind of a juror to establish the fact the government claims to be trying to prove.” The court asked, “how exactly, do Caldwell’s two prior convictions for unlawful firearm possession suggest he knowingly possessed this gun on this occasion?” It found only one answer:  If Caldwell knowingly possessed a firearm in the past, he was more likely to have knowingly possessed the firearm this time.  This is precisely the propensity-based inferential logic that Rule 404(b) forbids. 

The district court failed to conduct a meaningful balancing.  The Circuit provides some guidance on this point.  Even if the prior convictions were probative of knowledge (and they were not), the probative value would, at best, be minimal.  In a 922(g) case, knowledge is generally subsumed within a finding of physical possession.  Thus, any value added by the prior conviction would be negligible.  Further, the probative value is diminished where the defendant does not contest the fact for which supporting evidence has been offered.  “Rule 403 balancing may tilt in favor of excluding highly prejudicial evidence when it is offered to establish a fact that is completely uncontested by the defendant.”  On the other side of the scale, “it is beyond cavil” that evidence of prior firearm convictions is highly prejudicial. 

Next, the Circuit rejects the prosecution’s alternative argument that the prior convictions were admissible for impeachment purposes under Fed.R.Evid. Rule 609.  When a testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only “if the probative value of the evidence outweighs its prejudicial effect to that defendant.  This “heightened” balancing test creates a predisposition toward exclusion.  The Court considers (1) the kind of crime involved, (2) when the conviction occurred, (3) the importance of the defendant’s testimony to the case, and (4) the importance of the credibility of the defendant. 

In looking at the first factor, courts consider the impeachment value of the prior conviction, with crimes of violence having less impeachment value.  They also consider the similarity of the crime to the offense charged.  The balance tilts further toward exclusion as the offered impeachment evidence becomes more similar to the crime for which the defendant is being charged. 

            The third factor looks at the importance of the defendant’s testimony to his defense at trial.  “The tactical need for the accused to testify on his or her own behalf may militate against use of impeaching convictions.” 

            In Mr. Caldwell’s trial, the government failed to carry its burden.  The trial was a classic case of he said / they said.  But this single factor is not enough to allow admission.  The prior gun convictions were similar to and identical to the charged offense, making the priors highly prejudicial.  The impeachment value of the prior convictions is low because unlawful firearm convictions do not by their nature imply a dishonest act.  Also, the government failed to show that the probative value of the evidence was not diminished by the passage of more than 6-1/2 years. Finally, Caldwell’s testimony was important to his defense; he would have taken a great risk by failing to testify in his defense. 
            Finally, the Circuit rejects defense argument that the out of court confession made by a second person at the scene should have been admitted as a statement against interest under Rule 804(b)(3).  Where a statement is offered to exculpate the accused in a criminal trial, it must be “supported by corroborating circumstances that clearly indicate trustworthiness.  Examples of corroborating circumstances include the lack of a close relationship between declarant and the accused, the fact that the statement was voluntarily made after the declarant was advised of his Miranda rights, and the fact that the statement was not made to curry favor with the government.

Summary by Renee D. Pietropaolo


Friday, July 18, 2014

En banc Court adopts “new rule” requiring a defendant to raise any procedural objection to a sentence after sentence is imposed

United States v. Flores-Mejia, No. 12-3149, 2014 WL 3450938 (July 16, 2014)

Overruling United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), the en banc Court held that procedural error at sentencing is preserved only if a party objects after sentence is imposed or at the time that the procedural error becomes evident.  The Court explained that it was adopting this new rule for several reasons:

(1)  Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced;

(2)  Objecting to a procedural error after sentence is pronounced will promote judicial efficiency because it allows a sentencing court to correct or avoid a mistake;

(3)  Requiring that a procedural objection be made at the time sentence is pronounced prevents “sandbagging” of the court by a defendant who raises an error on appeal while remaining silent at the sentencing hearing.

 In Flores-Mejia’s case, defense counsel raised several grounds for departures and variances in a sentencing memorandum and at the sentencing hearing.  One of the grounds raised was that Flores-Mejia’s cooperation with the government warranted a reduced sentence.  After hearing argument on this issue from both parties, the district court stated: “Okay, thanks.  Anything else?”  Neither party replied, and the parties proceeded to sum up their positions on sentencing.  The court then imposed sentence.

On appeal, Flores-Mejia contended that the district court committed procedural error in failing to sufficiently consider his argument that his cooperation warranted a lower sentence.  A panel of the Third Circuit agreed, relying upon Sevilla.  Upon the government’s request, the Third Circuit granted en banc review.   

Based upon the “new rule” adopted by the en banc Court, Flores-Mejia did not preserve the procedural error issue for appeal.  However, the Court decided not to apply the rule retroactively to Flores-Mejia.  Using an abuse of discretion standard, the Court concluded that the district court record did not reflect meaningful consideration of Flores-Mejia’s cooperation argument, and remanded the matter for resentencing.         

Judge Greenaway dissented, joined by Judges Smith, Shwartz, and Sloviter, and in part by Judge Fuentes.  The dissent takes the majority to task for creating a new rule of procedure, “without intervening Supreme Court precedent and without a majority of our sister courts,” “that flies in the face of Fed. R. Crim. P. 51.”  According to Judge Greenaway, the majority’s “fundamental change to our sentencing procedures . . . is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.”  The “new rule” will force busy district courts to sit through “an objection—probably formulaic—in every criminal case.”  Recognizing that sentencing hearings are “highly charged and fraught with emotion,” the dissent asserts that “[i]t  is unwise to burden counsel to engage in a reasoned analysis of the district court’s sentencing explanation and then interpose an objection that was already asserted, all while attending to an emotional client and raising residual issues, like surrender dates and places of incarceration.”  

Monday, July 14, 2014

Circuit holds for the first time that the government can have a sufficiently important interest in forcibly medicating a defendant to restore his mental capacity and render him fit to proceed with sentencing

United States v. Cruz, No. 13-4378, 2014 WL 3360689 (July 10, 2014)

A jury convicted Cruz of two counts of threatening a federal law enforcement officer.  Prior to sentencing, the government raised concern about Cruz’s competency and moved for a determination on the matter.  The motion was granted and a BOP forensic psychologist concluded that Cruz suffered from schizophrenic disorder, bipolar type.  A second competency evaluation determined that Cruz would remain mentally incompetent, but that his competency could be restored through "a period of forced medication." The government sought an order authorizing BOP to forcibly medicate Cruz.   The district granted a hearing, pursuant to Sell v. United States, and subsequently ordered that Cruz be forcibly medicated.  Cruz moved to stay the order, which was granted, and appealed. 

The Third Circuit conducted a plain error review because Cruz raised his arguments for the first time on appeal.  Cruz failed to file an opposition to the government’s request for an order of forcible medication.  On appeal, Cruz cited to his non-concurrence to the government’s request and he argued that there was no need to file an opposition because the district court quickly scheduled an evidentiary hearing.  The Third Circuit disagreed – "Cruz was on notice of the Government’s ultimate request for relief, and he thus was or should have been aware of his obligation to oppose (or be deemed to support) it."

As to burdens of proof, the Third Circuit last addressed the Sell-specific standard of review in United States v. Grape, 549 F.3d 591 (3d Cir. 2008), in which it concluded that under Sell, the government had the burden of proof on factual questions and had little reason to address burden-shifting.  Now, the Third Circuit builds up on the Grape standard by "adopt[ing] both the Milkulich [the 6th Circuit] burden-shifting standard and the mixed standard of review set forth in Dillon [the D.C. Circuit]."

As to the Sell factors, the Third Circuit found that the government can have an important interest in restoring a defendant’s mental competency in order to proceeding with sentencing, noting that the government "cannot achieve the sort of uniformity contemplated in Booker without formal sentencing proceedings."  The Court also agreed with the district court that Cruz’s crimes were "serious."  The Court also decided that the district court did not commit reversible error in relying on the PSR because Cruz raised that issue for the first time in his Reply Brief.

Saturday, July 12, 2014

Circuit holds for the first time that § 3553(a) factors must be considered in determining length of imprisonment for mandatory revocation of supervised release under § 3583(g)

United States v. Thornhill, Nos. 13-2876, 13-2877, 13-2878, 2014 WL 3056536 (July 8, 2014)

After six petitions to revoke her term of supervised release based on positive drug tests and two additional convictions, the district court revoked Thornhill’s supervised release under 18 U.S.C. § 3583(g) and sentenced her to 36 months of imprisonment. On appeal, Thornhill argued that the district court failed to articulate whether it considered the sentencing factors under § 3553(a) and failed to acknowledge her mitigation arguments. The government argued that the district court was not required to, but did consider some of the 3553(a) factors.

In this matter of first impression, the Third Circuit held that 3553(a) factors must be considered in mandatory revocation under 3583(g). The Court explained that statutory interpretation is not limited to the statutory language alone – the "structure of the section in which the key language is found and the design of the statute as a whole and its object" also illuminate the plain meaning of the statute. Here, the "text and structure of the Sentencing Reform Act, §§ 3551-3586" also informed the Court’s analysis.

While consideration of 3553(a) factors is required for discretionary revocation under 3583(e), mandatory revocation makes no reference to 3553(a). However, since revocation under 3583(g) "is automatic," "[t]here was no need, therefore, for Congress to instruct that the § 3553(a) factors be considered prior to making a decision about mandatory revocation under § 3583(g)." In addition, the usage of the phrase "term of imprisonment" in § 3583(g) "incorporates both § 3582 and its directives to consider the § 3553(a) sentencing factors." Furthermore, § 3553(a)’s applicability "fits neatly within the sentencing regime established by the Sentencing Reform Act."

After holding that § 3553(a) were required, the Circuit concluded that the district court had in fact considered these factors, and affirmed the sentence.

Notably, the Judge Rendell, concurring in part and dissenting in part, contends that district court could not foresee that the majority’s holding and did not "meaningfully consider the § 3553(a) factors." "Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guideline sentence." Hence, the case should have been remanded for resentencing.

Wednesday, July 09, 2014

Circuit finds no prejudice in 2255 claim of failure to cross-examine and failure to object to indictment on Double Jeopardy grounds, and broadens the Double Jeopardy analysis of the overt act factor for conspiracy charges.

United States v. Travillion, No. 12-4184 (July 7, 2014)
The Third Circuit affirmed the district court’s denial of Travillion’s 2255 motion for ineffective assistance, finding no prejudice. Travillion was convicted on three counts -- conspiracy to distribute crack cocaine, conspiracy to distribute powder cocaine, and possession with intent to distribute crack cocaine, all in violation of 21 USC §§ 846, 841(a)(1) and (b)(1)(A)(iii). His defense at trial was that he was not a member of the conspiracy and that the drug involved was heroin, not crack. Michael Good, Travillion’s main supplier and government witness, testified that on the wiretapped calls with Travillion, they negotiated the price of crack. Travillion’s attorney cross-examined Good on several issues, including his addiction history and his cooperation with the government for a reduced sentence.

In his 2255 claim, Travillion argued that his trial counsel was ineffective for (1) failing to properly cross-exam Good with his prior testimony in another case, covering the same time and facts; and (2) failing to object to the indictment on Double Jeopardy grounds for conspiracy charges in Counts Nine and Thirteen.

At the outset, the Third Circuit explained that a 2255 motion "is reviewed much less favorably than a direct appeal of a sentence" and that relief is only available when "the claimed error of law ‘was a fundamental defect which inherently results in a complete miscarriage of justice....’ " The Circuit also noted that issues which were resolved in a direct appeal may "be used to support a claim for ineffective assistance of counsel."

For each of Travillion’s two claims, the Third Circuit applied the two-prong Strickland test for deficiency and prejudice, examining prejudice first. As to the first claim of failure to properly cross-examine, the Third Circuit agreed with the district court that there was no prejudice because the trial evidence was overwhelming and the outcome of the trial would have been the same. Defense counsel attacked Good’s credibility in his closing arguments and advance the defense that (1) Travillion was not a co-conspirator and (2) he possessed heroin, not crack. The Circuit also noted that the district court’s charge to the jury "protected Travillion by instructing the jury to heavily scrutinize Good’s testimony as key witness for the Government." Finding no prejudice, the Circuit court "need not address deficiency prong."

For Travillion’s second claim, the Third Circuit found that Travillion could not meet the totality of the circumstances test. The Court "employs a ‘totality of the circumstances’ test when determining whether a pretrial evidentiary hearing is necessary to determine if an indictment is invalid under the Double Jeopardy clause." The totality of circumstances test requires the examination of four factors: (a) "locus criminis" of the two conspiracies (b) temporal overlap between the two conspiracies, (c) overlap of personnel, and (d) over acts. "These factors need not be applied in a rigid manner." The Circuit court addressed the latter two factors at length. Regarding (c), the Court explained that while there was overlap of personnel, "their knowledge of, and objectives for," were not common enough to form one conspiracy.

In the analysis of (d), the Court echoed the requirement of a less rigid application of these factors. The Third Circuit held that since §846 does not require an overt act, "the strict approach to [overt acts] prong is too narrow and rigid under the modern ‘totality of the circumstances’ test... Thus, we now broaden our analysis and decide whether to infer only one conspiracy from the relevant activities of those involved." In concluding the separate conspiracies existed, the Court noted the Supreme Court’s holding that one "may be subject to multiple prosecutions of the same conduct if Congress intended to impose multiple punishments for that conduct." Congress formulated different statutes and punishments for crack and cocaine. The Court explained that the "use of separate conspiracies provides a convenient way of determining [whether the jury convicted the defendant of conspiracy to distribute crack or conspiracy to distribute cocaine, or both.]"

The Court concluded that t no fundamental defect inherently resulting in a complete miscarriage of justice was show and affirmed the denial of the 2255 motion.