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Thursday, April 17, 2014

Conviction Vacated Because Venue Did Not Lie in New Jersey in Computer Fraud and Abuse Act Prosecution

In United States v. Auernheimer, No. 13-1816, the defendant was accused of hacking into AT&T's system and obtaining the email addresses of 114,000 iPad owners.  Neither he, his co-conspirator, nor the servers he hacked were in New Jersey, but some of the iPad owners lived there, and the government prosecuted him in the District of New Jersey.  The district court denied his request for a jury instruction on venue, reasoning that venue properly lied in New Jersey as a matter of law.

The Third Circuit reversed, noting that proper venue is twice guaranteed to a criminal defendant in the Constitution, at Article III, Section 2, Clause 3 and in the Sixth Amendment.  It is also codified in Federal Rule of Criminal Procedure 18.  The panel reasoned that neither of the "essential conduct elements" of the Computer Fraud and Abuse Act ("CFAA") offense - accessing a computer without authorization, and obtaining information - occurred in New Jersey.  Further, because the government charged Auernheimer with conspiring to violate the CFFA in furtherance of a New Jersey state crime, neither of the conduct elements of that offense (accessing a computer without authorization, and disclosing information) occurred in New Jersey either.  Therefore, venue was not proper on the conspiracy count.

With respect to the identity fraud offense, neither of the essential conduct elements (transfer, possession or use, and doing so in connection with a federal crime or state felony) occurred in New Jersey, so venue was not proper on that charge.

The Court rejected the government's policy arguments for discounting the ordinary "essential conduct elements" test for venue.  It also rejected the government's argument that the venue error was harmless.  The Court indicated that a venue error may be structural and in any case this error was not harmless.  The Court reversed the district court's venue determination and vacated Auernheimer's conviction. 

Special thanks to Claudia Van Wyk for her contributions to this post!



Wednesday, April 16, 2014

Congress' Delegation of Authority to Determine SORNA's Applicability to Pre-Act Sex Offenders Did Not Violate the Nondelegation Doctrine

In United States v. Cooper, No. 13-2324, the Third Circuit considered whether Congress' decision to delegate authority to determine the applicability of federal registration requirements to sex offenders convicted before the Sex Offender Registration and Notification Act's ("SORNA") enactment was constitutional.  SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update his or her registration. 18 U.S.C. § 2250(a). The statute defines sex offenders to include persons convicted of sex offenses prior to SORNA’s enactment. 42 U.S.C. § 16911(1). However, Congress delegated to the Attorney General the authority to determine whether SORNA’s registration requirements would apply to pre-SORNA sex offenders. The Attorney General has since determined that SORNA’s registration requirements do in fact apply to offenders convicted of sex offenses prior to SORNA’s enactment. 28 C.F.R. § 72.3.

The Court determined that Congress’ delegation of this responsibility to the Attorney General was constitutional under the "nondelegation doctrine," which is rooted in the principle of separation of powers. The Court declined to apply a heightened standard here simply because Congress delegated the authority to create criminal liability. Instead, the Third Circuit analyzed Congress’ delegation of authority under the more common "intelligible principle" test. Under the intelligible principle test, a delegation of authority is constitutional so long as Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." See Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Court ultimately concluded that since Congress laid out the general policy underlying the SORNA, the public agency to apply the policy, and the boundaries of the delegated authority, its delegation to the Attorney General did not violate the nondelegation doctrine.

Thursday, April 03, 2014

Second or Successive 2255 Petition Not Authorized to Seek Relief Under Alleyne v. United States

Two brothers in United States v. Winkleman, Nos. 03-4500, 03-4753, filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held that "any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury" and proved beyond a reasonable doubt. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255.

A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters "our understanding of the bedrock procedural elements" of the adjudicatory process.

For those proceeding outside the successive petition context, it may be possible to argue that the Court's statement that Alleyne is not a watershed rule is dictum, since it was not necessary to the Court's ruling on retroactivity for successors under Tyler v. Cain, 533 U.S. 656, 668 (2001).

Friday, March 14, 2014

Defendant eligible for sentence reduction when mandatory minimum not applied at original sentencing

In United States v. Ortiz-Vega, 12-1482 (3d Cir. March 12, 2014), the Court found that where a defendant was subject to a mandatory minimum sentence but that minimum was not actually applied, he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on retroactive changes to the guidelines. Ortiz-Vega’s crack cocaine offense called for a guideline range of 97 to 121 months but the count of conviction at that time carried a mandatory minimum 120 months. 21 U.S.C. §841(b)(1)(A)(iii). Nonetheless, the court sentenced Ortiz-Vega to 108 months and the government did not challenge the sentence. When Ortiz-Vega moved for resentencing, arguing that the new range would be 78-97 months, the District Court found a reduction would not be consistent with the Commission’s policy statements (Step Two), relying on United States v. Doe, 564 F.3d 305 (3d Cir. 2009) to treat the mandatory minimum as the “applicable guideline range,” whether or not the mandatory minimum had been applied. However, Doe was superseded by the 2010 amendments to the guidelines and the “applicable guideline range” corresponds to offense level and criminal history category if the mandatory minimum was not applied. See United States v. Savani, 733 F.3d 56 (3d Cir. 2013) (discussing below minimum sentences based on substantial assistance). The Court would not read a limitation into the guideline commentary for substantial assistance, even though it is one of few permissible bases for sentencing below a mandatory minimum. The Court then considered whether Ortiz-Vega was sentenced based on a range that has been subsequently lowered (Step One). The Court found Ortiz-Vega was not “subject to” or subjected to the mandatory minimum sentence and thus his range had been lowered. The Court found it appropriate to perpetuate the sentencing error because prior errors cannot be modified in a 3582 proceeding and this principle should not only be used against defendants. The case was remanded for the District Court to consider a sentence reduction.

Thursday, March 13, 2014

Incomplete counterfeit bills count towards face value calculation under U.S.S.G. § 2B5.1(b)(1)

In United States v. Woronwicz, No. 12-4320 (3d Cir. March 12,2012), the Court held that incomplete counterfeit bills should be included in face value calculation under U.S.S.G. § 2B5.1(b)(1). Woronwicz was found with over $207,000 in counterfeit bills: 90% were completed on only one side, and $20,000 were completed on both sides. He pled guilty to counterfeiting in violation of 18 U.S.C. § 474. While Note 3 to § 2B5.1(b) excepts “items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny,” the reach of Note 3 is limited to subsection (b)(2). Incomplete bills, like bills of unpassable quality, all count towards (b)(1). Thus, the 12-level enhancement for counterfeit currency exceeding $200,000 was correctly applied.

Friday, March 07, 2014

In context of Grand Jury investigation, District Court followed and correctly applied proper standard to determine whether and how to conduct in camera examination of grand jury target’s former attorney to consider whether attorney’s testimony before grand jury could be compelled under the crime-fraud exception to attorney-client privilege, and did not abuse its discretion in concluding that there was sufficient evidence for the crime-fraud exception to apply.

In In Re: Grand Jury Subpoena, No. 13-1237 (3d Cir. Feb. 12, 2014), a grand jury, investigating alleged violations of the Foreign Corrupt Practices Act, served a subpoena on the former attorney of a target of the investigation, and the Government moved to enforce the subpoena and compel the attorney’s testimony based on the crime-fraud exception to the attorney-client privilege. The target sought to quash the subpoena by asserting the attorney-client privilege and work-product protection. The District Court, after questioning the attorney in camera, with only the attorney’s counsel present, found a reasonable basis to suspect that the target intended to commit a crime when it consulted the attorney and could have used the information gleaned from the consultation in furtherance of the crime. The court concluded that the crime-fraud exception applied and issued an order compelling the attorney to testify before the grand jury.

The target appealed, challenging the standard that the District Court applied to determine whether to conduct an in camera examination, it’s decision to hold an in camera examination and the procedures that it used in that examination, and whether the crime-fraud exception applied to the target’s communication with their attorney.

The Third Circuit held, first, that the District Court applied the proper standard to determine whether to conduct an in camera examination, based on the Supreme Court’s decision in United States v. Zolin, 491 U.S. 554, 572 (1989): that the District Court find a factual basis adequate to support a good faith belief by a reasonable person that in camera review may reveal evidence to establish the claim that the crime-fraud exception applies, and that such factual basis can include unmemorialized oral communications.

The Court next held that the District Court properly applied the Zolin standard when it relied on the Government’s Ex Parte Affidavit, which provided details of the FBI’s examination sufficient to permit the District Court to conclude that the Zolin standard was met. In addition, the District Court did not abuse its discretion in excluding the target from the in camera interview or in declining to release a transcript or summary of the testimony.

Further, the Court held that the District Court did not abuse its discretion in determining that there was sufficient evidence to conclude that the target was committing or intending to commit a crime or fraud when it consulted the former attorney, and that the target used the attorney’s advice in furtherance of a crime or fraud, and therefore the crime-fraud exception applied.

Finally, the Court held that the former attorney’s testimony was not protected by the work-product doctrine because it does not apply in light of a crime-fraud finding, and because the communications at issue were not made in the course of preparation for possible litigation.

Appellate Waiver applies to appeal of term of imprisonment imposed for supervised release violation to be served consecutively.

In United States v. Banks, No. 13-2094 (3d Cir. Feb. 12, 2014), defendant Banks — while on supervised release for a bank fraud conviction — was charged with and pleaded guilty to conspiracy to commit bank fraud and to violating the conditions of his supervised release, pursuant to a plea agreement that included an appellate waiver. In sentencing, Banks requested a concurrent term of imprisonment for the supervised release violation. The District Court imposed a sentence of 18 months for the bank fraud and 33 months for the supervised release violation, to be served consecutively. On appeal, Banks argued that his consecutive sentence was not encompassed in the appellate waiver.

The Third Circuit, strictly construing the language of the waiver, held that the plea agreement language that waived "any appeal . . . which challenges the sentence imposed" did not suggest an intention to except consecutive sentencing from the waiver.

Anticipatory search warrant issued by Pennsylvania Magisterial District Judge valid despite provisions of Fed. R. Crim. P. 41(b), because search was a state search in nature, and postal inspector’s four-day delay in obtaining search warrant not unreasonable under totality of the circumstances.

In United States v. Golson, No. 13-1416 (3d Cir. Feb. 11, 2014), during the course of a drug trafficking investigation, postal inspectors in Phoenix, Arizona intercepted a parcel with a fictitious return address that was addressed to a residence near Harrisburg, Pa. Postal Inspectors in Harrisburg received the package on a Thursday — that Monday, the Government obtained a search warrant from a federal magistrate judge; when opened, the package contained 20 pounds of marijuana.

The Cumberland County Drug Task Force decided to carry out a controlled delivery to the residence, and obtained an anticipatory search warrant signed by a Pennsylvania Magisterial District Judge. A postal inspector disguised as a carrier delivered the package, which someone in the house accepted and signed for on behalf of defendant (using a fictitious name). When the indicator equipment in the package alerted that it had been opened, law enforcement officers entered the home, took the residents into custody, and searched the house, finding drugs, drug-selling paraphernalia, firearms, and ammunition.

Golson — the intended recipient of the parcel — was charged with drug trafficking and possession of a firearm. He filed a motion to suppress asserting two arguments of interest: 1) the search violated Federal Rule of Criminal Procedure 41(b) — providing warrant issuing authority to a federal judge or a judge of a state court of record — because a Magisterial District Judge is not a judge of a state court of record under Pennsylvania law; and 2) the postal inspectors unreasonably retained possession of the parcel for four days before seeking a warrant to open it.

The District Court denied the suppression motion and Golson entered a conditional guilty plea. On appeal, the Third Circuit affirmed the denial of the suppression motion.

First, the Court held that although a Pennsylvania Magisterial Court Judge is not a judge of a state court of record as Rule 41(b) requires, Rule 41(b) does not apply here because the search was a state search in character: among other things, the search warrant was issued at the request of a state trooper indicating a violation of state law, and federal involvement in the search and seizure was, under the circumstances, relatively minor.

Second, the Court held that the four-day delay in obtaining the search warrant was reasonable under the totality of the circumstances, particularly because of the agent’s one-day scheduled leave and the two-day weekend, with the search warrant issued the next business day.

Wednesday, March 05, 2014

In 2254 petition, cautionary instruction unrang the bell.

In Glenn v. Wynder, the Court affirmed the district court’s denial of Glenn’s 2254 petition.

First, Glenn claimed that his due process rights were violated when the trial court denied his motion for mistrial after a supposed eyewitness proffered wildly contradictory testimony that was based on hearsay. The eyewitness was drunk and high at the time of the shooting and gave inconsistent testimony as to whether she saw Glenn shoot the decedent or whether she had just heard that Glenn had shot the decedent. She then said she didn’t really see the shooting itself, but she saw Glenn at the scene of the shooting and she was scared for the life of someone who really knew what happened. The trial court struck the testimony and told the jury to disregard it. Glenn argued that the trial court’s cautionary instruction could not cure the taint of the testimony and that a mistrial was the only appropriate remedy.

The Third Circuit found that, because a jury is presumed to follow instructions, the testimony did not render the trial fundamentally unfair and the state court’s denial of Glenn’s due process claim was not an unreasonable application of clearly established federal law. Other cases in which the Third Circuit had found that cautionary instructions were insufficient to cure a taint were distinguishable. Basically, because the trial attorney here did such a good job of cross-examining this witness, it was easy for the jury to follow the trial court’s instruction and disregard this witness’s testimony.

Second, Glenn claimed that trial counsel was ineffective for failing to move to strike five other pieces of evidence in the record that referred to the witness’s identification of Glenn as the shooter. Four of these pieces of evidence consisted of police testimony regarding the witness’s statements during the course of their investigation.  Fifth piece of "evidence" was the prosecutor’s opening statement discussing the witness’s anticipated testimony. Glenn’s claims were procedurally defaulted because he did not present them to the PCRA court. Glenn claimed he had cause for the procedural default under Martinez because PCRA counsel was ineffective in failing to raise them.

However, the Third Circuit found that Martinez did not apply because the underlying claim of IAC of trial counsel was not substantial. The police testimony could have been admissible not for the truth of the matter asserted but to explain the course of their investigation. Therefore, trial counsel was not "objectively unreasonable" for failing to object to that testimony. The prosecutor’s opening statement was not prejudicial because the court repeatedly told the jury that the statements of lawyers were not evidence.

Bottom line, even though the jury heard the foundation-less testimony of an eyewitness who pointed the finger directly at defendant in a murder trial, the defendant’s due process rights were not violated because the trial attorney did a bang-up job of discrediting her, because the trial court struck her testimony, and because the jury could be expected to follow the court’s instruction to ignore everything they heard from her.

In dirty cop case, Circuit continues deferring to jury on conspiracy convictions.

In United States v. John-Baptiste, three Virgin Islands cops were tried for RICO conspiracy and several related counts stemming from acts of extortion, kidnaping, bribes and drug trafficking. Jury convicted. District court denied defendants’ motion for new trial, but granted JOA on some counts. Defendants and government appealed.

Arguably of widest interest is the Circuit’s reversal of the district court’s JOA on two conspiracy counts: conspiracy to commit extortion and conspiracy to traffic drugs. On the conspiracy to commit extortion count, evidence showed that one cop was present but silent and inactive in the cop car while his partner bragged (to an extortion victim) about taking money for 19 years. Defense argued mere presence and the district court agreed noting that there was no evidence of an explicit agreement between the two cops as to this act of extortion. Third Circuit reversed saying, "The jury could certainly assume that if one officer boasts of engaging in such illegal activity for nearly two decades in the presence of another police officer, there must be an agreement and that the agreement arises from a ‘longstanding pattern of activity and mutual trust’ between the two." While the Court noted that its finding was very fact specific, the decision continues in the vein of Caraballo-Rodriguez in showing great deference to jury verdicts on conspiracy counts.

The Court likewise reversed the district court’s JOA on the drug conspiracy count. A govt witness testified that one cop, Edwards, handed him a brown paper bag and said that her partner wanted $3,500 for it. There was no specific evidence that Edwards knew what was inside the bag (crack). Once again following the reasoning of Caraballo-Rodriguez, Third Circuit found that the price of the bag, the light weight of the bag, and the timing of this incident (several years into the partnership between the two officers and a pattern of joint illegal activity) was enough for the jury to infer that Edwards knew that the brown paper bag contained drugs.

Other holdings:
  • Indictment was sufficient. Even though it didn’t give the actual names of the victims of each count, it was specific enough in dates and descriptions to allow defendant to invoke double jeopardy against future prosecutions of the same conduct.
  • Denial of severance motion was not a violation of due process. Even though one of the defendants was only involved in one incident which was the basis for only 8 out of 54 counts, the evidence could be easily separated and compartmentalized by the jury so there was no prejudice from the joinder.
  • Virgin Island laws against kidnaping/false imprisonment without "lawful authority" applied to a cop who arrests someone. Even though cops have the legal power to make arrests, if they are acting outside the bounds of the law (for example, by legally arresting someone, but then keeping her until a ransom payment is made), then they are acting without lawful authority. Statutes were not unconstitutionally vague.
  • Evidence sufficient to sustain extortion conviction even through no direct evidence that payment was given to the cop. Money was left in the cop’s car and other circumstances suggest that cop pocketed it.
  • No new trial warranted on RICO conviction even through JOA granted on some of the predicate acts and jury may have relied on that acquitted conduct in their deliberations. As long as there is a conviction on two or more predicate acts, the RICO conviction stands even if jury (or judge) acquits on other predicate acts.
  • Defense claimed prosecutorial misconduct, but Court found no due process violation because no harm from these incidents (assuming they were improper).
  • Court did not abuse discretion by prohibiting defense from cross-examining cooperators on the specific length of the sentence they would otherwise be facing were it not for their cooperation. Confrontation right preserved by defense ability to cross on the cooperation agreements and sentence reductions, generally.
  • Remember FRE 613 – witness must be given the opportunity to admit or deny a prior inconsistent statement before extrinsic evidence of that statement may be introduced. Defense attorney properly prohibited from asking one witness about statements another witness made that was inconsistent with that witness’s prior testimony.