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.

Wednesday, May 03, 2017

Court has jurisdiction to review substantive reasonableness of Section 3582 denial

United States v. Jose Angel Rodriguez, No. 16-3232,  2017 WL 1526279 (3d Cir. Apr. 28, 2017), as amended (May 1, 2017). 

          Rodriguez appealed denial of a motion sentence reduction under 18 U.S.C. § 3582(c)(2).  In response, the government challenged the Court’s jurisdiction to consider whether a 3582(c)(2) motion was substantively unreasonable. The Court concluded that it has jurisdiction under 28 U.S.C. § 1291.

          Although Rodriguez was eligible for a reduced sentence, the district court denied his motion for sentence reduction under § 3582(c)(2), based on his “unyielding and escalating pattern of drug-related and violent behavior.”  Rodriguez appealed, arguing that his unmodified sentence was substantively unreasonable.  The government countered that the Circuit lacked jurisdiction over his claim that of substantive unreasonableness.

          The Court found first that it has jurisdiction over the district court's order under 28 U.S.C. § 1291, which provides “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. The court next turned to determine whether 18 U.S.C. § 3742, a narrower sentencing jurisdiction statute, limits the Court’s jurisdiction.  Section 3742(a) provides that a defendant may appeal “an otherwise final sentence” under enumerated circumstances; one being if the sentence was “imposed in violation of law.”  While § 1291 jurisdiction may be limited in some cases by § 3742, that was not the case here as an unreasonable sentence is “imposed in violation of law” under 18 U.S.C. § 3742(a)(1). (citing cases). 

          The Court rejected the government’s reliance on the Court’s lack of jurisdiction to review discretionary denials of a downward departures. “As to a downward departure, Sections 3742(a) and (b) reflect Congress's intent to foreclose review of a sentencing court's decision not to depart under the relevant Guidelines. (citation omitted).  But in enacting § 3742, Congress could not have foreseen the Guidelines becoming advisory. 

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,

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.