Friday, August 18, 2017

Federal Court upholds RICO and wire fraud conviction for New Jersey political party official

In United States v. Ferriero, __F.3d.__, 2017 WL 3319283, 15-4064 (3rd Cir. Aug. 4, 2017), the Third Circuit upheld a RICO violation when a political party official arranged to receive a percentage of fees paid to a vender that he recommended to local offices during the course of his official duties.  The Court held that there is no requirement to prove an agreement to “undermine the integrity of a public action” when the RICO charges stem from the current version of New Jersey’s bribery statute.  The Court also found that a communication can be fraudulent and violate federal wire fraud law when it contains half-truths and omits critical information.  Furthermore, it found that the New Jersey bribery statute is neither overbroad nor unduly vague, and the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2015), did not impact the present conviction because that case dealt with “officials acts” and not “public issues.”

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).  The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”  Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force capable of causing physical pain or injury to another person” as set forth in Johnson v. United States, 559 U.S. 133 (2010).  The Court concluded that the “use of physical force” as used in the Sentencing Guidelines “involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”

Next, because Section 876(c) is a divisible statute, containing alternative versions of the crime, the Court applied the modified categorical approach.  Based on Chapman’s indictment, the Court focused on the second of the two versions of the crime, which has two elements: (1) “the defendant knowingly mailed a threatening communication;” and (2) “the communication contained a threat to injure the person of the addressee or another.”  The Court noted that the “threat to injure” element closely tracks the language in the force clause of the Sentencing Guidelines.  The Court rejected the argument that a threat to injure does not necessarily require the threat to use violent physical force.  The Court relied on Castleman and also concluded that beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force.

Judge Jordan’s concurring opinion is significant.  He argues that the unfettered growth of the categorical approach is leading to a host of problems and not achieving its intended goal.  He is troubled by the requirement that judges must ignore real world facts.  He joins other judges who have urged that the categorical approach be reconsidered.  He proposes that judges be permitted to consider the facts of a previous conviction when those “facts are beyond fair dispute.”

Denial of Suppression Reversed Because of De Facto Arrest

In United States v. Wrensford, __ F.3d __, 2017 WL 3222511, No. 16-1373, No. 16-1395 (3rd Cir. July 31, 2017), the Third Circuit addressed the appeals of two co-defendants who were convicted of first degree murder and charges related to the illegal use and possession of a firearm.  In reversing and remanding the case as to one defendant and affirming as to the other, the Circuit provided guidance on the parameters of the Fourth Amendment and de facto arrests.  It also reaffirmed prior rulings regarding the standards for reviewing (1) motions for a mistrial based on non-unanimous jury verdicts; (2) refusal to give a voluntary manslaughter instruction; and (3) arguments that the evidence submitted at trial was insufficient to support a conviction.

In the most salient part of this opinion, the Third Circuit held that the police conducted a de facto arrest when they forcibly removed Wrensford from the place where he was stopped, brought him to a police station, and placed him in a cell without probable cause and without reading him his Miranda rights.  Further the identification that stemmed from that arrest was tainted.  The Court remanded the case to the district court to determine whether a Fourth Amendment exception would have nonetheless protected the identification and whether admission of the information during trial was harmless beyond a reasonable doubt.
The Court also found the district court did not abuse its discretion in denying motions for mistrial based on non-unanimous jury verdicts.  It reasoned that counsel’s failure to object to further polling of a dissenting juror, the interest in obtaining at least a partial verdict in a case involving multiple defendants and multiple counts, the Court’s supplemental jury instruction, and the lack of evidence that a juror’s will had been overborne during re-deliberation all weighed in favor of affirming the conviction.
Also proper was the district court’s refusal to give a voluntary manslaughter jury instruction because the evidence in the case did not indicate that the crime resulted from a sudden quarrel or in the heat of passion.  Finally, the Court reaffirmed its established holding that any review of the sufficiency of the evidence is highly deferential.  The evidence supporting Muller’s conviction—which included witness testimony placing Muller at the scene of the crime, an identification based on a valid photo array, and Muller’s confessional conduct when apprehended by law enforcement—was sufficient to uphold his conviction.

Wednesday, August 02, 2017

Government does not need warrant for cell tower information when complying with statutes allowing for court orders to cell phone companies for location information/ Religious Freedom Restoration Act cannot be used to violent crimes

USA v. Stimler, et al., No . 15-4053, 4094 and 4095 (3d Cir, 7/7/17)

The defendants were all Orthodox rabbis convicted of attempted kidnapping and conspiracy for a scheme of kidnapping and torturing Jewish men to convince them grant their wives  divorces under Jewish law. The panel opinion, in a Hebrew and Yiddish laden explication, described the ritual practices the Defendants believed Jewish law required or entitled them to  engaged in. “Observant” Jews (anyone familiar with the politics of Israel these past few months will understand the quotation marks) adhere to a doctrine that a wife cannot divorce her husband without his permission, not matter what the cause of her desire to leave the marriage. A rabbinical court can order Jewish men to give consent, but if the husband refuses, the court, outside of Israel where such courts have the power to order recalcitrant men jailed for failing to give consent, it is considered a mitzvah to get such a man to give consent, and the Defendants herein hired themselves out to perform such mitzvahs. Gey vays.

Learning of the scheme, the an FBI agent posing as a Jewish woman deprived  a Jewish  divorce for lack of her husband’s consent, met with one of the defendants who promised her “what we’re doing is basically gonna be kidnapping a guy for a couple of hours and beatin’ him up and torturing him . . ..”   Two of the defendants convened their court with a third rabbi and issued a judgment authorizing the use of force to gain consent. One of the defendants with the FBI agent then planned the kidnapping, and at the time and place of the planned kidnapping one of the court members and a third defendant met to surveil the area where it would occur. The FBI then arrested all of them.

The panel considered at length only three of the issues the defendants raised. First, it considered a challenge to evidence obtained pursuant to a court order the Government received under Section 2703(d) of the Stored Communications Act (SCA), compelling AT&T to turn over historic cell site location information (CSLI) generated by one of the defendant’s phones. The information gave the location of cell towers nearest the phone that relayed calls or messages from it. The Court, in a lengthy discussion, rejected the defendant’s challenge that pursuant to the 4th Amendment, a warrant was needed for the disclosure. Note that the United States Supreme Court has granted cert. on this issue in another case— if you want to preserve the claim, you can use this ACLU cert. petition filed in that matter for reference. It also rejected the defendant’s argument that the Government failed to establish the “reasonable grounds” necessary for a magistrate to order the disclosure of the cell tower information— the information provided about the kidnapping ring, how a co-conspirator implicated the defendant, and a description of the involvement of each defendant satisfied the statutory standard.  Judge Restrepo dissented from this part of the opinion, opining that a warrant is necessary for this information.

The defendants then challenged their convictions under the Religious Freedom Restoration Act (“RFRA”). The RFRA ““substantially burden[s] a person’s exercise of religion” unless the government can demonstrate, inter alia, that the burden is the “least restrictive means of furthering [a] compelling government interest.” Invoking the RFRA requires “making out a prima facie case by showing that (1) it possesses a sincerely held religious belief, and (2) the government’s conduct substantially burdened that belief. “ The burden then shifts to the government to show that the prosecution is the least restrictive way of supporting a compelling interest. The defendants failed to show that their actions overrode the government’s interest in preventing kidnapping and torture. Another religion based challenge to the district court’s ruling barring the introduction of evidence explaining Jewish marital law to negate the specific intent required for conviction failed too. The motive to perform a mitzvah could be the reward for a kidnapping, and in any event, religious motivation cannot negate the intent to commit a crime. The district court also correctly ruled inadmissible evidence that Jewish men who signed a Jewish marital contract impliedly consented to being kidnapped and tortured at the behest of rabbis. Such consent must be specific to have any meaning at all.

The defendants challenged the admission of certain co-conspirator statements. Some of the challenged statements were made in response to a challenge to the rabbis authority by one of their victims. As none of the defendants could have believed they were making statements to help a criminal prosecution, they were not testimonial, and thus not subject to a Confrontation Clause challenge. They were also admissible under F.R.E. 801. The statements were made to assert the authority of the defendants to act as they did, and were thus admissible.

Challenges to the sufficiency of the evidence and the alleged outrageousness of the FBI conduct of the investigation were also dismissed.

When sentencing for state crimes under the Assimilative Crimes Act, district courts must apply Sentencing Guidelines for crimes that are “sufficiently analogous” when elements of state and federal crimes are compared

USA v. Carolyn Jackson and John Jackson, No. 16-1200 (7/6/17, 3d Cir.)

In an 80 plus page opinion, followed by a 30 or so page impassioned dissent form Judge McKee, a panel overturned a sentence imposed following a trial of two defendants who, for actions committed on a military vase, were acquitted of federal assault charges but convicted of various New Jersey laws against child abuse for which there were no precise federal counterparts.  The government contended that the Court, had it followed federal sentencing guidelines, should have imposed a sentence in the range of 292 to 365 months. (The PSR had calculated a slightly lower range.) The defendants, wife and husband, received sentences of imprisonment of respectively 24 months (as well as three years of supervised release) and three years of probation (as well as 400 hours of community service and a $15,000 fine. The district court found no analogous sentencing guidelines, and the government appealed.

The panel noted the case was unusual because defendants are not usually sentenced in federal court for violating state laws, but under the Assimilative Crimes Act (“ACA”), state crimes committed on federal property or installations located in those states can be prosecuted in state court. The panel’s opinion never gives a straight recitation of the facts proved at trial, relying instead on snippets of the indictment and jury charges to discuss the defendants’ conduct. Basically though, they engaged in acts of assaulting foster children physically, withholding nourishment and timely medical treatment, and causing them to consume food and liquids that caused pain and suffering. The defense apparently attributed their actions to excessive but not cruel child discipline.

The panel began its analyses at U.S.S.G. § 2X5.1, which requires application of guidelines for “sufficiently analogous” offense guidelines. It adopted a “ballpark” or “plausible analogy” test to determine whether a state crime had an analogous offense for which a guideline could be applied. Its examination led it to conclude that the assault guidelines for 18 U.S.C. §113, which prohibits “[a]ssaults within the special maritime and territorial jurisdiction” to apply even though the defendants were acquitted of all parts of §113 charged against them. The differences between the convictions for the state crimes and §113 were not so great that guidelines for parts of that statute could not be used as guidelines for the state convictions. No fact finding was necessary to conclude that sufficiently analogous guidelines existed as the test requires only a comparison of legal elements. The guidelines that apply do not need to perfectly match the state crime. The panel thought little of the district court’s observations at sentencing, based on her experience as a state family court judge, that the interests of the state law differed from those vindicated by the federal laws the government thought required application of specific sentencing guidelines— her job, the panel implied, was merely to match the elements as best as possible, if possible. In this case, the panel ruled, it was possible.

The panel also directed the district court when resentencing to engage in the fact finding required for application of the Sentencing Guidelines and 18 U.S.C. §3553(1) factors. It also noted that the ACA sets the state sentences as setting the minimum and maximum sentences that could be imposed— the government’s proposed sentences did not exceed those.

Finally, the panel deemed the district court’s sentence not to be substantively reasonable, and found that no reasonable sentencing court would have imposed the sentence imposed by the district court, it being too lenient. With the remand, the panel also took the rare step of instructing the district court as to the panel’s assessment of the seriousness of the defendants conduct, the need for a sentence that will deter similar conduct, and how to assess the defendants’ military service and life as a spouse of a member of the military, and the defendants’ expressions of contrition, which the panel thought the district court attributed too much weight. The panel’s assessment of these factors were different than those of the district court, and will militate in favor of a higher sentence. The panel, in a final footnote, expressed displeasure with the government’s citations to press reports and expressions of shock by spectators to the sentencing. The panel reminded the government that a sentencing court should try to curry favor with public opinion, and a press report is not proof that a district court committed reversible error.

Sunday, July 09, 2017

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively discharged by revocation in Florida and Florida would not have jurisdiction to discharge the Virgin Islands supervised release absent formal transfer of supervision under 18 U.S.C. § 3605. The Third Circuit also found that the inaction of the Probation Office in the Virgin Islands in supervising Johnson in Florida did not cut short the District Court’s jurisdiction over revocation of supervised release.

Saturday, July 08, 2017

Remand for evidentiary hearing on trial counsel's ineffectiveness regarding co-defendant's statements to a psychiatrist being used for their truth against defendant

In Lambert v. Warden, 2017 WL 2784960 (June 28, 2017),, the Third Circuit held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that trial counsel was ineffective, see Martinez v. Ryan, 132 S.Ct. 1309 (2012), and remanded for an evidentiary hearing. This case proceeded through trial in Pennsylvania, direct appeal, habeas petition in Pennsylvania (PCR), habeas petition in federal court under 28 U.S.C. § 2254, and was before the Third Circuit on a certificate of appealability. Thus, federal review of state court determinations was examined under AEDPA’s “deferential standard of review.”

The Third Circuit remanded for an evidentiary hearing on trial counsel’s ineffectiveness on not asking for a limiting instruction to protect Lambert’s Confrontation Clause rights. Lambert’s co-defendant had introduced a psychiatric expert to explain he had voices in his head at the time of the murders and so did not have the required specific intent. While a statement that Lambert handed the co-defendant a gun was redacted, there was no limiting instructions that the co-defendant’s statements could not be used against Lambert. In closing, the prosecutor argued that those out-of-court statements helped prove Lambert’s guilt. Ineffective assistance of counsel could not be raised until PCR and PCR attorneys filed no-merit letters explaining the statements were party admissions. The Third Circuit held that the co-defendant's statements to the psychiatrist were testimonial. Lambert need not prove the primary purpose of recording the co-defendant's statements was to accuse him of a crime. In the context of a joint trial, it is enough to show the co-defendant's statements were made for the primary purpose of substituting for his in-court testimony about the crime. The Circuit also held (1) the trial-ineffectiveness claim had some merit, reasonable jurists could find that the prosecutor’s closing arguments relied on the truth of the co-defendant’s statement to a psychiatric expert to draw conclusions about the defendant’s intent in his co-defendant’s plan; and (2) PCR counsel was ineffective for not raising it, thus excusing under Martinez the default of not raising an ineffectiveness of counsel claim.
However, the double layer of deference under AEDPA and Jackson v. Virginia, 443 U.S. (1979) (light most favorable to government) led the Court to deny Lambert’s sufficiency claim. The Third Circuit could not conclude that it was “objectively unreasonable” for the Pennsylvania Superior Court to decide Lambert was guilty of the crimes.


Wednesday, June 21, 2017

FBI agent's leaks to local media outlets did not violate defendant's Fifth and Sixth Amendment rights

In United States v. Chaka Fattah, Jr., Docket No. 16-1265 (3d Cir. June 2, 2017), the Third Circuit considered whether a FBI agent's leaks to the press regarding the execution of sealed search warrants violated the defendant's Fifth and Sixth Amendment rights. While the Court criticized the agent's behavior, it ultimately found that no constitutional violations occurred.

With regard to the Sixth Amendment violation, Fattah claimed that the pretrial publicity about the search warrants caused his employer to terminate his employment. According to Fattah, the unrealized income from that employment was necessary for him to afford counsel of his choice, thereby violating his Sixth Amendment right to counsel. The Court found that applying such a far-reaching theory of causation would stretch the outer limits of the Sixth Amendment to breaking because: (1) the government lacked any desire or purpose to deliberately interfere with counsel, (2) any alleged loss of income would have been an unintended and incidental consequence of the agent's actions, and (3) there was no close nexus between the employer and the agent's actions with regard to the termination. However, even if the Court were to accept Fattah's theory, it would decline to remand for an evidentiary hearing because Fattah's claim to unrealized income was contradicted by his own undisputed statements and actions. Specifically, Fattah was already preparing to leave his employer on his own terms when he was fired and had taken concrete steps to end his employment. Furthermore, there was evidence indicating that the employer already knew about the search warrants directly from the government and, therefore, did not learn about them from the media reports. Finally, there was no evidence that the money at issue would have directly funded Fattah's choice of counsel rather than his myriad other debts.

The Court also rejected Fattah's Fifth Amendment outrageous government conduct claim, finding that the government's conduct was in no way intertwined with Fattah's. Instead, Fattah argued that because the FBI agent violated (or may have violated) certain laws, his conduct was so outrageous that it should bar Fattah's conviction. The Court flatly rejected this argument, stating that "[t]he remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police," if such a violation occurred.

The Court also summarily rejected a number of additional claims regarding the sufficiency of the indictment, constructive amendment of the indictment, improper joinder of counts, and the particularity of the search warrants. Accordingly, it affirmed the district court's judgment on all counts.