Thursday, April 13, 2017

Evidence of Uncharged Solicitations Admissible under Rule 404(b) in Hobbs Act Extortion and Federal Programs Bribery Prosecution

In United States v. Repak, No. 15-4011, 2017 WL 1149100 (3d Cir., March 28, 2017), Defendant challenged his conviction for two counts each of Hobbs Act extortion and federal program bribery. During his tenure as executive director of the Jonestown Redevelopment Authority ("JRA”), Defendant ran the daily operations of the organization, including making recommendations to the board regarding which businesses should be awarded contracts and grants to perform work for or establish business in Jonestown. The government charged Defendant with soliciting gifts from contractors to whom JRA had awarded contracts, including event tickets, golf outings, a new roof for his house and excavation services for his son’s gym. Defendant raised several challenges to his convictions, specifically in relation to the lower court’s evidentiary rulings, the jury instructions, the sufficiency of the trial evidence, and the prosecutor’s closing arguments.
 
The government sought to admit evidence under Rule 404(b) regarding additional bribes that Defendant had solicited from other contractors to show that Defendant possessed the requisite knowledge and intent to commit the offenses charged in the indictment. Despite the lower court’s failure to provide a detailed analysis under Rule 404(b), the Third Circuit conducted its own Rule 404(b) analysis to rule that the proffered evidence was admissible. Specifically, the court ruled that the evidence was relevant to show that Defendant knew that the items he received were not unilateral token gifts but were given in order to influence his official acts as JRA’s executive director. As these other solicitations occurred within a discrete time frame with some of the same actors involved in the charged conduct, these uncharged solicitations evinced a course of conduct which tended to show Defendant’s intent to accept bribes in exchange for city contract work. The Third Circuit also ruled that the limiting instruction provided by the trial court tempered the prejudicial impact of the proffered evidence, as well as the fact that the evidence consisted of uncharged conduct as opposed to a conviction.

Defendant also challenged the trial court’s admission of evidence of his affair with his assistant under Rule 403. Defendant had solicited gifts from contractors for his assistant, and the assistant had directly solicited gifts from contractors on behalf of Defendant. The government sought to introduce evidence of the affair to show Defendant’s motive for soliciting certain gifts, as well as to assist the jury in assessing the assistant’s credibility. The Third Circuit ruled that the lower court did not abuse its discretion by admitting this affair evidence, as the evidence was relevant and its prejudicial impact was not so unfair as to substantially outweigh its probative value.

Defendant also challenged the sufficiency of the evidence supporting his convictions, including a challenge to whether his conduct involved "official acts," as defined in McDonnell v. United States, 136 S.Ct. 2355 (2016). However, the Third Circuit found these arguments unpersuasive. The court also ruled that the prosecutor’s reference during his closing arguments to Defendant’s extramarital affair, and his invitation to the jury to “send a message” to the residents of Jonestown, did not rise to the level of a Due Process violation.  

Thursday, March 23, 2017

Right to Fair and Impartial Trial Applies to Bench Trials



In Paul McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, the Third Circuit held that the right to a fair trial applies not only to jury trials, but also to bench trials.  This right cannot be waived. Therefore, a bench trial cannot proceed when the judge is biased.   Ultimately, the Third Circuit found defense counsel’s failure to ask a biased judge to recuse herself  was ineffective assistance of counsel, and granted petitioner’s request for habeas relief.    

Petitioner McKernan was charged by the Commonwealth of Pennsylvania with murder and opted for a bench trial.  The state judge presiding over the bench trial became aware of a website run by one of the victim’s family members, in which she was criticized as being too lenient and soft on crime  The judge proceeded to have a conversation, in her robing room,  with the attorneys and the victim’s family regarding the website; the defendant was not present.  The conversation was transcribed by the court reporter.  The judge expressed her anger with the “vicious and unfair” critique.  However, she also told the family members they had been hurt enough and did not want them to suffer by having the case heard by a judge they did not trust.  She told the family she “just want[ed] to make sure that you folks are happy with me.” 

Defense attorney did not speak during the conversation, and it was the assistant district attorney that finally expressed concern with the defendant not being present for the conversation.  Defense counsel then left the meeting to confer with his client, without asking the meeting to be held or adjourned.  The defendant requested to speak with the judge.  She consented and told defendant that the prior conversation was not going to influence her during the trial.  The defense agreed to proceed with the bench trial, and McKernan was convicted of first degree murder.   

Following a long series of motions and petitions for post-conviction relief, McKernan filed for habeas relief under 28 U.S.C. §2254 arguing his counsel was ineffective for not asking the judge to recuse herself.  The Third Circuit agreed finding that “counsel’s performance in failing to move for recusal of [the judge] fell far below the minimum standards of competence in the profession and the state court’s failure to recognize this incompetence was an unreasonable application of the Strickland factors.” 

Wednesday, March 22, 2017

Third Circuit reverses obstruction of justice enhancement where failure to appear for trial was not "willful"

United States v. Kenneth R. Douglas, Docket No. 15-1754 (3d Cir. Feb. 22, 2017)

Defendant Kenneth Douglas was an airport employee who used his position and security clearance to help traffic more than 450 kilograms of cocaine from California to Pittsburgh over the course of 10 months. On the day his trial was set to begin, he failed to appear in court. The next day, he filed a motion for a continuance, claiming he was receiving medical attention for a suspected heart attack at the time his trial was set to begin. He submitted medical records and a doctor's note with his motion. Despite the medical records, the district court found no "solid evidence" that Douglas was suffering from a medical condition that warranted missing court. It's really, the court said, "sort of ambiguous." The district court revoked Douglas' bail and later released him on house arrest with electronic monitoring. Douglas was convicted after trial.

At sentencing, the district court adopted the calculations in the Presentence Report, which included an offense level 38 for more than 450 kilograms of cocaine, a two-level enhancement, under U.S.S.G. §3B1.3, for abuse of position of trust, and a two-level enhancement, under U.S.S.G. §3C1.1, for obstruction of justice, for a total offense level of 44, which is treated as a 43, the maximum offense level under the Guidelines. Douglas faced a Guidelines range of life imprisonment. The district court varied downward and sentenced him to 240 months imprisonment.

On appeal, Douglas challenged the district court's findings on drug quantity, abuse of position of trust, and obstruction of justice. The Third Circuit affirmed on drug quantity and abuse of position of trust, but reversed on obstruction of justice. Regarding drug quantity, the Court found that the testimony of Douglas' co-conspirator, coupled with flight records, telephone records, and bank deposits corroborating that testimony, supported the drug quantity finding. As to the abuse of position of trust enhancement, the Court noted the paramount public importance of airport security and the discretion that comes with security access at an airport. It compared Douglas' role as an airport employee with that of a prison guard, noting that the public places tremendous trust that the people in such positions will not use their positions to circumvent security measures to smuggle contraband into secure facilities like airports or prisons. The Court concluded that "[b]earing in mind the critical importance of airport security, and the expansive nature of Douglas's access to secured areas at SFIA, including the planes themselves, we cannot say that the District Court erred in concluding that Douglas" abused a position of public trust.

Turning to the obstruction of justice enhancement, the Third Circuit concluded that the district court erred in applying the enhancement because there was no evidence that Douglas willfully failed to appear as required by §3C1.1. Douglas provided medical documentation that explained his absence from court. Although the government and court both expressed skepticism at the excuse, the government offered no evidence that Douglas deliberately schemed not to appear in court by feigning illness. Absent such proof, and in light of the medical documentation presented indicating a lack of willfulness, the Third Circuit concluded that the district court erred in applying the enhancement for obstruction of justice. The Court remanded for resentencing because removing the enhancement lowered Douglas' Guidelines range from life imprisonment to 360 months to life imprisonment and was unsure whether the district court's downward variance to 240 months imprisonment would remain the same under the correctly calculated guideline range.

Judge Greenaway concurred in part, but filed a dissenting opinion as to the Court's decision regarding the abuse of position of trust enhancement. Judge Greenaway contended that the plain language of the Application Notes to §3B1.3 specify that only certain acts - those violating positions of trust characterized by professional or managerial discretion and by deference to the defendant's judgment rather than abuse of his access - qualify. Here, Douglas certainly had access, but he owed no fiduciary obligation to the airline, airport, or public, exercised no managerial or professional discretion within his company, and had no authority over someone or something at the airport other than himself. Instead, Judge Greenaway found Douglas more akin to the ordinary bank teller or hotel clerk, whom the Guidelines expressly specify are not covered by the enhancement. As Judge Greenaway noted, "[f]reedom of movement is a form of discretion, but it is not the managerial or professional discretion that is subject to this enhancement." Accordingly, he dissented from the majority's holding on the applicability of this enhancement.

Third Circuit adopts "listening post" theory for wiretap intercepts under Title III

United States v. Dominique JacksonDocket No. 14-3712 (3d Cir. Feb. 24, 2017)

Defendant Dominique Jackson was convicted after trial for conspiracy to distribute cocaine. His primary contention on appeal was that the district court erroneously denied his pretrial motions to suppress evidence derived from intercepted cellphone calls. Specifically, he argued that two federal orders authorizing the wiretaps of cellphones under Title III should have been suppressed because the orders were based on illegal state wiretaps. He contended the state wiretaps were illegal because the state court lacked authority to authorize wiretaps over cellphones outside of Pennsylvania.

The Third Circuit joined other courts of appeals in adopting the "listening post" theory that under Title III either the interception of or the communications themselves must have been within the issuing judge's territorial jurisdiction. It found that both Title III and the Pennsylvania wiretap statute, which was modeled after Title III, make clear that for the interception to be lawful only the interception had to have been in Pennsylvania. The phones and calls themselves can be outside the jurisdiction. Because there was no dispute that the interceptions at issue in this case were made at a listening post inside the state of Pennsylvania, the Third Circuit upheld the district court's denial of the defendant's suppression motion.

Jackson also raised three trial, all of which the Third Circuit rejected under a plain error analysis. First, the Court found that the district court did not plainly err in sua sponte precluding the government's case agent from interpreting the meaning of certain intercepted telephone calls under Fed. R. Evid. 701. Rule 701 permits a lay witness to testify as to their opinion so long as the testimony is: (1) rationally based on the witness's perception, (2) helpful to clearly understanding the witness's testimony or determining a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge. Although the Third Circuit found that the district court erred by allowing the case agent to testify about the meaning of clear conversations, provide unhelpful argument in the guise of evidence, and rely on other than direct knowledge of the events, this error did not raise to the level of a plain error because Jackson's co-defendants provided much of the same information.

Jackson also contended that the government wrongfully introduced evidence of two co-conspirators' guilty pleas as substantive evidence of his guilt. The Third Circuit rejected this claim after concluding that the government properly introduced this evidence to establish the witnesses' credibility and firsthand knowledge of the crime and to refute Jackson's selective prosecution claim.

Finally, Jackson argued that the district court plainly erred by permitting the government to mention a witness's invocation of the Fifth Amendment in front of the jury. While the Court agreed that such a mention was inopportune, it occurred in response to the district court's question about the applicable hearsay exception. The Court found error, but deemed it not so serious as to rise to the level of plain error.

Sentencing enhancements do not define a crime for purposes of the categorical approach


Chavez-Alvarez v. Attorney General, http://www2.ca3.uscourts.gov/opinarch/161663p.pdf

The Third Circuit reversed the BIA’s removal of a lawful permanent resident – finding his military conviction for sodomy was not a crime involving moral turpitude. The BIA had reasoned that the application of a sentencing enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense of forcible sodomy. Applying the categorical approach, the Third Circuit ruled that sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The President’s delegated authority to define (and enhance) punishments did not function to define the crime itself.

Monday, March 20, 2017

Court finds no plain error in the use of dual juries

In United States v. Brown, Docket No. 14-3754 (3d Cir. Feb. 22, 2017), the defendant raised Fifth and Sixth Amendment challenges to the use of dual juries (one for him and one for a co-defendant) at his trial. Although Brown's counsel raised no objection to the joint trial before dual juries, the Third Circuit reviewed the defendant's claim for plain error because there was no indication that the defendant "was actually aware of his due process and jury rights and that he himself - not just his counsel - knowingly sanctioned a procedure that arguably impinges on those rights."

Noting that the use of dual juries has very little precedent in the Third Circuit, the Court adopted the holdings of several other circuits in ruling that the use of dual juries is not per se unconstitutional. Instead, the practice will be upheld unless the defendant can show some specific, undue prejudice. While the Court stated that it was not encouraging the practice of using dual juries, due to the potentially significant complications inherent in such a practice, it nevertheless affirmed Brown's conviction because Brown had failed to show any prejudice in his case.

Wednesday, February 01, 2017

Vacating October Decision, Court Holds Return of Indictment Not Necessarily Fatal to Appellate Jurisdiction over Grand Jury Matters

On rehearing, a unanimous panel changes course in In re Grand Jury Matter #3, No. 15-2475 (Jan. 27, 2017), holding in this “out-of-lane” case that appellate jurisdiction survived the return of an indictment against a target-turned-defendant challenging a document's presentation to the grand jury. Reaching a question that had escaped review under its original decision, the Court now concludes that the district court erred in holding the crime-fraud exception to have vitiated work product protection for the document, an email the target had received from his attorney and forwarded to his accountant.

Identifying the target as John Doe, the opinion’s discussion of the underlying investigation is relatively spare, framing the email’s relevance in relation to the government’s theory that Doe executed a sham transfer of his company to a third party in order to mitigate liability in a class action suit challenging the company’s practices. The accountant produced the email in response to a subpoena, but the next day the accountant’s attorney sought to recall the email on the ground that its disclosure had been inadvertent. The government, however, retained the email and asked the district court for authorization to present it to the grand jury. The court granted permission, reasoning that while the email constituted attorney work product, it was subject to disclosure under the crime-fraud exception. Doe then filed an interlocutory appeal.

While Doe’s appeal was pending, the government presented the email to the grand jury and secured an indictment on RICO and other charges. Following oral argument but before decision, the government presented the email again to a second grand jury weighing a superseding indictment. Writing for a split panel, Judge McKee reasoned in an October 28 decision that the email’s presentation, along with the return of the indictment, had mooted the controversy, requiring dismissal of the appeal. Judge Ambro dissented on the view that the decision was contrary to precedent and counterproductive from the standpoint of judicial efficiency.

Doe petitioned for rehearing in November, and in December the second grand jury returned a superseding indictment. Last week, a unanimous panel granted the rehearing petition and adopted Judge Ambro’s analysis in a per curiam opinion. “[B]ecause in limited circumstances we take pre-indictment appeals and begin to decide them,” the Court reasons, “we should not reflexively dismiss those appeals — wasting the parties’ effort as well as ours — simply because an indictment is filed.”  Instead, the Court holds, appellate jurisdiction survives so long as “grand jury proceedings continue.” In Doe's case, the Court relates, they do: the second "grand jury is still investigating other charges relating to ownership of [the putatively transferred company], though the Government represents that it currently has no plans to seek additional charges based on the email."

Having confirmed jurisdiction, the unanimous panel proceeds to hold that presentation of the email to the grand jury was error. The crime-fraud exception did not apply because “an actual act to further the fraud is required before attorney work product loses its confidentiality.” This act-in-furtherance requirement, the Court stresses, “provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.” As Doe had done no more than forward the email to his accountant proposing “to discuss” the matter further, the record showed only that he "at most thought about using his lawyer’s work product in furtherance of a fraud, but he never actually did so."

In closing, the Court offers several cautionary remarks. "[M]any appeals involving grand jury proceedings" will still "become moot after the return of an indictment" because grand jury proceedings will have concluded. And in the event Doe is convicted and appeals, the error will not automatically guarantee him a new trial, but be subject to review for harmlessness.

Wednesday, January 11, 2017

Definition of Crime of Violence Under 18 U.S.C. §16(b) is Unconstitutional


      The Third Circuit ruled that the definition of crime of violence under 18 U.S.C. § 16(b) is unconstitutionally vague, and therefore the Petitioner’s prior conviction did not constitute a crime of violence.
      In Baptiste v. Attorney General, 841 F.3d 601(3d Cir. 2016), the Third Circuit first analyzed the New Jersey aggravated assault statue noting that it covered a “wide array of conduct.”  The appellate court further noted that a defendant could be convicted under this law based on: (1) intentional use of force, (2) conduct that presented a substantial risk he or she would use force or (3) conduct that presented no risk of intentional use of force.  The result was a defendant could be convicted under the same statute “for conduct as dissimilar as an intentional act of physical violence (first category of conduct) and drunk driving causing accidental injury (third category of conduct).”  Ultimately, the Third Circuit concluded that reckless second-degree aggravated assault, in “the ordinary case,” creates a substantial risk of intentional use of force and is therefore categorically a crime of violence under § 16(b).
 
      However, due to the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), the Third Circuit then went on to find § 16(b) was void for vagueness under the Due Process Clause, joining the Sixth, Seventh, Ninth and Tenth Circuits, all of which have previously found §16(b) unconstitutionally vague and invalid.  Therefore, the aggravated assault conviction was not a crime of violence. 

      Nevertheless, Petitioner was still found to be removable because the crime of reckless second-degree aggravated assault is a crime involving moral turpitude. 

Monday, January 09, 2017

Divisible Statutes and the Means/Elements Test Under Mathias


In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016), the Third Circuit ruled that Pennsylvania’s Controlled Substances Act was a divisible statue, and thus the district court was correct in applying the modified categorical approach to determine if a conviction under that statue was a “serious drug offense” under the Armed Career Criminal Act (“ACCA”).  The statute was divisible because the controlled substance schedules set forth different elements of the offense, not different means of committing the same offense.

In reaching its decision, the Third Circuit applied the means/elements test established by the Supreme Court in Mathias v. United States, 136 S.Ct. 2243 (2016).  Mathias set forth three methods of determining if a factor is a distinct element of the offense, or simply a separate means of committing the offense.  Courts should consider (1) whether a state court has decided the matter; (2) the language of the statute; and (3) the record itself.  For the statute in dispute in this case, a state court had already found that the type of drug involved in a case was a distinct element of the offense, not a means of committing the offense.  Second, the language of the statute did not simply set forth a “list of illustrative examples” of drugs that lead to a violation of the statute, but rather the statute contains “a disjunctive and exhaustive list” for drug types that are “alternative elements[,] not separate means of commission” of the offense.  Finally, the record in the underlying case, particularly the charging documents, showed the type of drug was an element of the offense, as it was the involvement of heroin that made this a serious drug offense. 

The appellate court noted that in performing a means/element review under the third method – examination of the record – courts are not limited to “actual conviction documents,” but rather courts may look to charging instruments, plea forms, sentencing orders, conviction documents and “other reliable judicial records.”

Finally, the Third Circuit ruled that the defendant’s conviction under the Pennsylvania law, involving heroin, qualified as a predicate offense under ACCA.