Tuesday, July 12, 2016

Defendants can be civilly liable for damages to victims even after criminal restitution ordered.

            While Doe v. Hesketh, et al., No. 15-1381 (July5, 2016), is a civil matter, it could impact many who have been convicted of child sex offenses.  Defendant Mancuso pleaded guilty to a manufacturing child pornography charge.  At sentencing, the judge ordered $200,000 to be placed into a trust as restitution for the victim.  The victim later filed a civil lawsuit against Mancuso (along with other defendants who were dismissed for lack of personal jurisdiction) under 18 U.S.C. § 2255 – which provides a civil cause of action for minor victims of human trafficking, sexual assault and pornography offenses.  Victims can recover personal injury damages and the cost of the suit, including attorney fees.  Statutorily, damages are automatically deemed to be no less than $150,000.

            Third Circuit found that the criminal restitution order did not bar the later filing of the civil law suit under § 2255 and that collateral estoppel did not apply so that a new damages amount, higher than the $200,000 restitution, could be determined in the civil lawsuit.  There are statutory provisions allowing for criminal restitution to be reduced by the amount of civil recovery in order to prevent double recovery.   

Tuesday, June 28, 2016

No vindictiveness in one-month reduction on Johnson remand.

     In U.S. v. Nerius, 15-3688, 2016 WL 3003781 (3d Cir. May 25, 2016), Nerius was sentenced to a bottom-of-the-range 37 months as a career offender following conviction for impeding correctional employees and damaging property within prison.  On Johnson remand, Nerius was resentenced to 36 months, the top of the non-career offender range.  The Third Circuit rejected Nerius’s claim that the new sentence triggered a presumption of judicial vindictiveness and violated due process under North Carolina v. Pearce, 395 U.S. 711 (1969), because the Pearce presumption does not apply when the new sentence is less than that originally imposed.   The Court found the fact that the two sentences fell in different -in this case opposite- relative positions within the original and revised Guideline ranges to be irrelevant.

     Absent the presumption, an appellant must demonstrate “proof of actual vindictiveness” to support a claim of judicial vindictiveness.   Nerius did not raise a claim of actual vindictiveness.

Wednesday, May 18, 2016

Prostitute has Common and Apparent Authority to Consent to Search Room in Which She is Working

In United States v. Murray, No. 15-2054, 2016 WL 1697082 (3d Cir., April 28, 2016), Defendant challenged his conviction for distribution of crack cocaine and related offenses. In Murray, Bensalem police were investigating alleged prostitution in the area. Police had been informed by the owner of the at the Sunrise Motel that a suspected prostitute had been picked up at the motel by someone driving a green Cadillac. Police also received a tip on that same day from a woman named “Jessica Brown” that a man named “Mills” drove a green Cadillac. Ms. Brown informed police that “Mills” was currently residing at the Knights Inn, and he had drugs in his possession. During the evening on the same day that they had received these two tips, police observed a green Cadillac at a third motel, the Neshaminy Motor Inn. Police learned that the owner of the green Cadillac was Defendant, and he had rented one room at the motor inn. By this time, police also had learned that Defendant had rented two rooms at the Knights Inn, for which he paid cash and provided a copy of his driver’s license. As they continued their investigation, police observed the green Cadillac at the Knights Inn parked in front of one of the two rooms rented by Defendant. Officers also made contact with a woman, identified as “Jessica Burns,” inside the room rented by Defendant at the Neshaminy Motor Inn. Initially, Ms. Burns had asked an officer if he wanted a date. During the officers’ subsequent attempt to talk to Ms. Burns, she refused to do. However, Ms. Burns ultimately acquiesced, and informed the officers that she was in fact a prostitute, and she worked for the man who had rented the room. She also informed the officers that this man was a drug dealer who supplied her with drugs.

Eventually, Defendant arrived at the room at the Neshaminy Motor Inn in which police were interrogating Ms. Burns. The officers recognized Defendant from his driver’s license, and promptly frisked him. The search yielded keys to the two rooms Defendant had rented at the Knights Inn, as well as a cell phone and a large wad of cash. Based upon the statements elicited from Ms. Burns and the items recovered from Defendant’s person, police obtained search warrants for the two rooms at the Knights Inn and the green Cadillac. In one of the rooms at the Knights Inn, police recovered 192.4 grams of crack cocaine.

At the suppression hearing, Defendant argued that Ms. Burns possessed neither common nor apparent authority to consent to a search of the room at the Neshaminy Motor Inn. He also argued that the frisk of his person was illegal. The lower court found Ms. Burns’ testimony credible regarding her voluntary consent to search the room at the Neshaminy Motor Inn. The lower court also determined that Ms. Burns had common authority, or in the alternative apparent authority, to give consent to search the room. The lower court further ruled that the frisk of Defendant was lawful because police possessed the requisite reasonable suspicion to believe he was armed and dangerous. The lower court also determined that Defendant consented to the search of his person. The lower court ultimately concluded that the search warrants were lawfully issued.

Defendant entered a guilty plea, but preserved his right to appeal the lower court’s denial of his suppression motion. The Third Circuit upheld the lower court’s denial of Defendant’s suppression motion.  Specifically, the Third Circuit concluded that, based upon the facts as known to police at the time of the encounter, i.e., that Ms. Burns was a prostitute employed by Defendant, the officers reasonably believed that Ms. Burns had common authority, or at the very least apparent authority, over the room.  The Third Circuit also ruled that, based on the information police had obtained to that point, i.e, that Defendant was a drug dealer who ran a prostitution operation, the officers reasonably believed that Defendant would be armed and dangerous. Distinguishing United States v. Myers, 308 F.3d 251, 258 (3d Cir. 2002), the court concluded that a frisk inside one’s home is permissible if limited to the extent necessary to protect police and secure the situation. The court also ruled that, based upon the testimony of the arresting officer, Defendant had in fact given consent for police to search him.

Thursday, April 21, 2016

Supreme Court Holds Johnson Retroactive to Cases on Collateral Review

Justice Kennedy authored the 7-1 opinion for the Court in Welch v. United States, holding that Johnson applies retroactively to cases on collateral review:
Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision [and therefore retroactive].
Three petitions for certiorari are pending, asking the next logical question:  whether Johnson is retroactive as applied to the GuidelinesSee, e.g., Alfrederick Jones v. United States, No. 15-8629, in which the National Association of Federal Defenders recently filed an amicus brief in support of the petition.

Supreme Court Holds Guidelines Error Alone Should Suffice to Show Prejudice

The Supreme Court reversed the Fifth Circuit in Molina-Martinez v. United States, No. 14-8913, maintaining the approach taken by the Third Circuit in reviewing Guidelines error.  In an opinion by Kennedy (joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan), the Court held:  "courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.... [A] defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights."  The Court reasoned:  "From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used.  In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome."  In other words:  "When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant's ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." 

Alito, concurring (joined by Thomas), agreed with the result and that the Fifth Circuit's "rigid approach" is incorrect, but took issue with the majority's "speculat[ion]" about "how often the reasonable probability test will be satisfied in future cases."  He explained:  "The Court's predictions... are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate." 
Thanks to Laura Mate, Sentencing Resource Counsel, for this summary.

Police Officer Acted as Mere "Listening Post" in Hospital

Dellavecchia v. Secretary, PA DOC, No. 15-1833, decides a 6th Amendment right to counsel issue, which may come up in non-habeas contexts.  Judge Greenberg writes for a unanimous panel (joined by Jordan and Scirica). From the opinion:
On this appeal from an order denying a petition for a writ of habeas corpus we consider the Sixth Amendment right to counsel in an unusual set of circumstances. In September 2012, a state-court jury convicted appellant, James Dellavecchia, of first-degree murder, criminal attempt (homicide), three counts of recklessly endangering another person, and weapons-related offenses. At the trial, Lieutenant Scott Willoughby of the Ridley Township, Pennsylvania, Police Department, the lead officer investigating the crimes, gave testimony that is at the center of this opinion. In particular, Willoughby testified that Dellavecchia made an incriminating statement immediately following a bedside arraignment conducted while he was hospitalized for a self-inflicted head injury on the day following his arrest for the commission of the offenses.

It is undisputed that when Dellavecchia made his statement without counsel present and without having been given Miranda warnings, he had not waived the right to counsel. Thus, as the case law we discuss below demonstrates, the dispute concerns whether Willoughby deliberately elicited Dellavecchia’s statement or was a mere “listening post” when Dellavecchia, spontaneously and without prompting, volunteered incriminating information.

We conclude that Willoughby did not deliberately elicit Dellavecchia’s statement and consequently did not violate Dellavecchia’s Sixth Amendment right to counsel. We also conclude that the evidence at the trial, even disregarding Dellavecchia’s statement, overwhelmingly supported his convictions and thus, even if his Sixth Amendment rights had been violated when he gave the statement, the ensuing error when Willoughby recounted the statement at trial was harmless. Therefore, we will affirm the District Court order denying Dellavecchia’s petition for habeas corpus.
This is what Det. Willoughby testified happened:
[A]s soon as District Justice Gallagher arraigned the Defendant he turned and started to walk out of the room. Mr. Dellavecchia asked me who are you. I introduced myself as Lieutenant Scott Willoughby from the Ridley Township Police Department. I told him I was in charge of the investigation, at which time he asked me to sit. I sat. He put out his hand. I shook his hand. And he stated this. I really fucked up. He asked me to sit down. And he says Scotty, I want to tell you what happened. I sat in the chair and Mr. Dellavecchia began to talk freely and openly.
Willoughby said he'd not planned to interrogate defendant and so forgot to bring his Miranda form. He said he did tell Dellavecchia that anything he said could be used against him. He claimed he sat and listened, taking notes, while Dellavecchia gave an uninterruped narrative. He knew that Dellavecchia's son had retained counsel for him.
Dellavecchia testified at trial that Robins was the aggressor in an encounter in which he acted in self defense. His statement to the police did not include the self-defense aspects.

Greenberg, applying Massiah v. United States, Brewer v. Williams, US v. Henry, and Kuhlmann v. Wilson, asks whether Willoughby "deliberately elicited" Dellavecchia's statement in contravention of his right to counsel, which had attached after he was arraigned in the hospital. Willoughby, he finds, did nothing but listen to Dellavecchia's "spontaneous and unsolicited" statement. In contrast to Brewer, the state courts found that he did not go to the hospital intending to question the defendant. Without employing a specific AEDPA presumption of correctness analysis, Greenberg indicates that the federal court has no basis to reject that finding. Furthermore, Willoughby told Dellavechhia that anything he said could be used against him. Greenberg sees this as an indication that W. did not elicit D's statement but in fact encouraged him to keep silent.

Because of the lower court's "unassailable" findings on the motion to suppress, the Superior Court's ruling rejecting the claim was not an unreasonable application of the Massiah line of cases. He says in a footnote that even if the case was in a direct review posture the court would reach the same result. And he indicates that the admission of the statement was harmless error.

In a footnote, Greenberg does stress that police can only use a represented defendant's statement only if there is no elicitation.

Thank you to Claudia Van Wyk, EDPA, for this summary.

Plain Error Doyle Reversal

In US v. Victor Lopez, No. 14-4610, the Third Circuit vacates Lopez’s conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion is the latest in a string of Doyle violations found by the Third Circuit (United States v. Shannon, 766 F.3d 346 (3d Cir. 2014); Gov’t of Virgin Islands v. Davis, 561 F.3d 159 (3d Cir. 2009); Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998)). It is significant principally because trial counsel failed to object, therefore the appeal was on plain-error review. This is the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit held, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The jury posed several factual questions. The court notes: “It appears that the jurors struggled with their assessment of the credibility of the witnesses, sending six questions to the district court during deliberations.”

The Third Circuit (Vanaskie, J., for himself, McKee, and Jordan) holds that all of the prosecution's questions and statements at issue violated Doyle, even those that regarded Lopez’s failure to file a police misconduct report. In a footnote, the court reasona that those questions also raise the impermissible inference that a defendant’s assertion of his right to silence undermines his credibility.

On plain error review, the appellant must make a prejudice showing of a reasonable probability that the error affected the outcome. The Third Circuit finds prejudice for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “the government’s repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court describes the prosecution’s misconduct as “particularly egregious” given the previous Doyle precedent in the circuit. In the next footnote, the court thanks the appellate AUSA for candor. At oral argument, he conceded the Doyle error (although not prejudice), and promised to implement improved training to prevent such errors in the future. 

Thanks to Maria Pulzetti, EDPA (who litigated Lopez), for her assistance with this post.

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.