Friday, October 24, 2014

Good Faith Exception to Fourth Amendment Exclusionary Rule Applies to Pre-Jones GPS Surveillance

In United States v. Katzin, No. 12-2548, 2014 WL4851779 (3d Cir., Oct. 1, 2014), Defendants challenged the warrantless tracking by FBI agents via a GPS device. The agents installed the device onto Defendants’ van in December, 2010, after Defendants had been identified as suspects in a string of pharmacy burglaries. The GPS surveillance was conducted over the course of two days. Subsequently, the U.S. Supreme Court rendered its decision in United States v. Jones, 132 S.Ct. 945 (2012), in which the Court ruled that GPS installation and surveillance constituted a search that is subject to the warrant requirements of the Fourth Amendment. Citing Jones, the trial court in Katzin suppressed the evidence gathered via GPS. A panel of the Third Circuit affirmed the lower court’s ruling that a warrant was required in this instance. The panel also held that the good faith exception to the Fourth Amendment=s exclusionary rule did not apply, thereby upholding the district court’s suppression order. The Third Circuit sitting en banc, reached the opposite conclusion. Citing United States v. Leon, 468 U.S. 897 (1984), and Davis v. United States, 131 S.Ct. 2419 (2011), the court ruled that, as the police conduct occurred before the Supreme Court had issued its ruling in Jones, the good faith exception to the Fourth Amendment=s exclusionary rule applied to save the GPS evidence from exclusion.
 
The Third Circuit cited Herring v. United States, 555 U.S. 135 (2009), to conclude that suppression is warranted only where police are sufficiently deliberate and culpable that deterrence will be effective and outweigh the costs of suppression.  

The Third Circuit determined that suppression is unwarranted in these circumstances if, in light of the totality of the circumstances, the officers possessed an objectively reasonable good faith belief that their conduct was lawful. Pursuant to Davis v. United States, 131 S.Ct. 2419 (2011), the Court held that the agents acted in accordance with Abinding appellate precedent,@ namely the Supreme Court’s decisions in United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984). Knotts and Karo both involved the warrantless installation of a beeper onto a canister containing contraband, and surveillance of the suspects’ vehicles on public roads. Despite the factual dissimilarities between beepers and GPS, and the tracking at issue, the Court held that the agents’ reliance upon these Supreme Court rulings was objectively reasonable.  

In the alternative holding, the Third Circuit ruled that the existence of “binding appellate precedent” is not necessary to a finding of good faith. Davis happened to involve such precedent, but the good-faith issue is broader, asking whether agents had an objectively reasonable belief that they were acting lawfully. The Circuit answered that question in the affirmative here, based on the totality of the circumstances.

 

Wednesday, October 15, 2014

PROOF OF AN OVERT ACT AND RECEIPT OF A BENEFIT ARE NOT REQUIRED TO PROVE CONSPIRACY UNDER THE HOBBS ACT. A DEFENDANT CAN BE GUILTY OF CONSPIRACY TO EXTORT, BUT NOT GUILTY OF ATTEMPT TO EXTORT.



Appellants Ronald Salahuddin, a former deputy mayor of Newark, and Sonnie Cooper, a demolition contractor, appealed their convictions under the Hobbs Act, 18 U.S.C. §1951(a), for conspiring to extort under color of official right.  Specifically, Salahuddin was charged with using his office to obtain charitable and political donations, and to direct contracts to Cooper’s business.  There was also evidence that Salahuddin was a “silent partner” in Cooper’s demolition business.  The government used a confidential informant (“C.I.”) to gather evidence against the appellants.  The C.I., in turn, avoided prosecution on bribery and tax evasion charges.  Appellants were charged in a five count indictment, but were convicted only of the conspiracy charge.  They each raised numerous, separate issues on appeal, which the Third Circuit rejected in United States v. Salahuddin (13-1751).

            Salahuddin argued that conviction under the Hobbs Act required proof of an overt act. As a matter of first impression, the Third Circuit ruled that conviction under the conspiracy provisions of the Hobbs Act does not require proof of an overt act.  The appellate court applied the Supreme Court holdings in U.S v. Shabani, 513 U.S. 10 (1994) and Whitfield v. U. S., 543 U.S. 209 (2005), which stand for the proposition that when a statue is silent on the issue of overt acts, then proof of an overt act is not required.  While most circuits have ruled similarly, at least one circuit has required proof of an overt act.  On a related appellate issue, Salahuddin argued that the indictment was constructively amended because it included overt acts in the indictment, but the jury instructions did not require proof of those acts.  Initially the Third Circuit was unconvinced that the language in the indictment referred to overt acts.  More importantly, the Third Circuit rejected this argument because overt acts was not a required element of the offense.  

Salahuddin then argued that the government was required to show that at least one member of the conspiracy received a benefit from the conduct.  The Third Circuit rejected this argument.  The circuit court noted that a conspiracy charge differs from completion of an offense.  The fact that conspirators failed in their goal to obtain a benefit through extortion does not negate the conspiracy offense.  Therefore proof that defendants received the desired benefit is not required for conviction of conspiracy under the Hobbs Act.  

Additionally, Salahuddin raised several potential jury instruction errors.  First, he challenged his conviction on the basis that the jury was not instructed to find a quid pro quo arrangement between himself and the C.I. for the charitable donations to organizations supported by city officials in exchange for demolition work.  Since no quid pro quo requirement exists for cases involving non-campaign charitable donations, the trial court was not required to give such a jury instruction. Next, Salahuddin contended that in addition to the general unanimity instruction, the court should have sua sponte instructed the jurors that they needed to unanimously agree to facts supporting one object of the conspiracy.  The appellate court rejected this argument, finding that the trial court was not required to issue such a jury instruction.  Finally, Salahuddin challenged the jury instructions because the trial court did not initially provide the definition of extortion under color of official right when reading the jury instruction on conspiracy.  However, the trial court provided the definition moments later.  The appellate court found that the brief delay between the reading of the initial instruction and the definition was not plain error.

Appellant Cooper also raised several appellate issues, all of which were rejected by the Third Circuit.  First, Cooper challenged the denial of his Rule 33 motion.  Specifically, he argued that the evidence did not support the verdict because the C.I’s testimony was biased and false, and further the government did not provide sufficient evidence.  The Third Circuit affirmed the denial of the motion ruling that issues concerning the C.I.’s credibility were for the jury to weigh and decide.  Moreover, the jury was aware of the C.I’s motivations for testifying, i.e., his deal with the government.  Furthermore, in addition to the C.I’s testimony, the government provided recordings of the appellants which provided strong evidence against themselves. Finally, regarding evidentiary matters, the Third Circuit ruled that direct evidence was not necessary, but rather the charges could be proved through circumstantial evidence. 

Next, Cooper challenged the denial of his Rule 29 motion.  The motion was based on the same arguments made in support of the Rule 33 motion, plus he further argued that the jury’s not guilty verdict on the Hobbs Act attempt charge was inconsistent with the guilty verdict on the conspiracy charge.  The appellate court explained that the requirements for an attempt count are different from a conspiracy count.  Specifically, “attempt” requires evidence that the defendants took a substantial step toward completion of the extortion, while “conspiracy” does not require an overt act.   Also, it is possible to enter into a conspiracy, but not take a substantial step toward completion of the offense.  Therefore, the verdicts were not inconsistent. 

Lastly, Cooper argued that the trial court should have granted his motion to vacate the conviction based on “selective prosecution and outrageous government conduct.” This issue was waived because Cooper did not raise it before trial.

For all of the reasons discussed above, the Third Circuit affirmed the convictions of both Salahuddin and Cooper. 

Thursday, September 25, 2014

Once A Suspect is Arrested and the Scene Has Been Secured, The Exigent Circumstances Have Passed and The Fourth Amendment Requirement for a Search Warrant Reattaches.


            The existence of exigent circumstances is one of the few exceptions to the Fourth Amendment requirement for a search warrant prior to any search or seizure.  However, once the exigency is no longer present, a warrant is needed to continue the search.  In UnitedStates v. Mallory, (13-2025), the Third Circuit considered what factors demonstrate that the exigency has subsided. 

            In the early hours of the morning, officers were responding to a dispatch call concerning a group of men standing outside a four-story home; the group allegedly included a hooded individual armed with a gun.  The home belonged to Kamaal Mallory’s stepmother.  While outside of the house, Mallory was speaking with a police officer when they noticed a weapon in his waistband.  Appellant ran into the house and shut the door; officers pursued.  Officers cleared the home and the family members were ordered to wait outside under supervision of an officer.  The police then searched the home for Mallory and the weapon.  He was eventually found hiding in a locked bathroom, was placed under arrest, and handcuffed. While escorting appellant outside, officers searched another section of the home and found a revolver.  Mallory filed a motion to suppress the gun, which was granted by the trial court.  The Government appealed. 

            Initially, the appellate court addressed a few procedural issues.  First, Mallory challenged the appellate court’s jurisdiction to review the appeal arguing that the Government had failed to file a timely certification with its notice of appeal, as required by 18 U.S.C. §3731.  He further argued that the corrected certification was filed out of time.  The Third Circuit held that the clock begins ticking on the day an order is entered on the docket, not the day the decision is rendered.  Therefore, the appeal was timely because the error was corrected within the thirty day timeframe provided for in §3731.  Next, the circuit court determined that the proper standard of review for deciding the presence or absence of exigent circumstances is clear error for factual findings, but de novo review for deciding if those facts created a legal exigency justifying the warrantless search.  The Third Circuit further explained that exigent circumstances are reviewed under an objective standard, not based on the subjective intent of the officer. 

When determining if the warrantless search is justified, a court may consider, but is not limited to, the following factors:  (1)  the time that passes between the offense and the search;  (2) the nature of the offense; (3) whether the search occurred prior to or at the same time as the suspect’s apprehension; (4) if the premises/scene is secure; (5) whether there are other individuals in the house/on the scene that are unaccounted for; (6) whether the suspect or anyone present is being aggressive or otherwise threatening to the officers; (7) whether anyone present could reach and use the weapon; and (8) the intrusiveness of the search.  Based on these considerations, the Third Circuit held that in Mallory’s case, the exigency had passed and a warrant was required to continue any search of the house.  Mallory had been arrested and the house was secure; the family members were outside under the watch of other officers; after the initial flight, Mallory did not resist arrest when officers found him hiding in the bathroom; and there was no evidence that the family knew where the gun was or was going to move the weapon.  Therefore the exigency had passed with the intervening arrest and securing of the house, and the officers should have secured a warrant before searching further for the gun.  The Third Circuit upheld the suppression of the weapon. 

Friday, September 19, 2014

Convictions Under Pennsylvania’s Terroristic Threat Statute Are not Crimes of Violence.


Applying the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), the Third Circuit held in United States v. Brown (13-4442) that convictions for making terroristic threats (18 Pa. Cons. Stat. §2706) were not categorically crimes of violence for purposes of the career offender sentence enhancement (U.S.S.G. § 4B1.1).

While incarcerated on a separate state offense, Appellant Gregory Garett Brown mailed a letter threatening both a federal magistrate judge and a federal district court judge.  He pled guilty to mailing threatening communications in violation of 18 U.S.C. §876(c).  The PSR recommended Brown be sentenced as a career offender under §4B1.1(a), which had the effect of doubling his guideline range from 30 to 37 months, up to 77 to 96 months. The PSR identified four prior Pennsylvania state convictions that allegedly triggered the enhancement including: one conviction for aggravated assault, one conviction for retaliating against a judicial officer, and two convictions for making terroristic threats.  Mr. Brown agreed the aggravated assault was a qualifying offense, and the Government conceded that the retaliation offense did not qualify, so the dispute in this matter was whether the convictions for making terrorist threats qualified as predicate offenses under the career offender enhancement guideline. 

The Third Circuit found that the relevant Pennsylvania statue, 18 Pa. Cons. Stat. §2706, is an “overbroad” statute that criminalizes both conduct that qualifies as a crime of violence and conduct that would not be considered a crime of violence under federal law.  Because the state statute applies to such a broad range of conduct, under the precedent set in Descamps, §2706 is not categorically a crime of violence.  Moreover, the modified categorical approach for reviewing predicate offenses is not applicable when a statute provides for multiple versions of an offense but none of those variations is categorically a crime of violence.  Accordingly, the two state convictions under this statute did not qualify as predicate offenses and the enhancement could not be applied to Brown’s sentencing calculation. Therefore the circuit court vacated the sentence and remanded the case.

The holding in this case has the effect of superseding and overturning part of holding in United States v. Mahone, 662 F.3d 651 (3d Cir. 2011).

Rare case where Court, on direct appeal, remands for evidentiary hearing on IAC claim


(Rendell, Fuentes, Greenaway, C.J.s)


In Gov’t of V.I. v Vanterpool, No. 13-4400, 2014 WL 4473960, Vanterpool raised First Amendment challenges (facially vague, as applied, and overbreadth) to his convictions for harassment by telephone and written communication.  His attorney did not raise any First Amendment challenge to a statute that criminalizes “writing in a manner likely to harass or alarm.” The Court determined if the statute was unconstitutional, the District Court would have committed error in applying it, but it would only be reversible under plain error.  The Court had never ruled on whether a constitutional challenge can survive plain error review but found other Circuit cases “persuasive” that when a constitutional question is far from being “clear under current law,” it cannot survive plain error. (However, the Court would not rule out that a constitutional challenge could ever win under plain error review).  Nonetheless, here, the Court took the rare step of remanding the case for an evidentiary hearing on an ineffective assistance of counsel (IAC) claim while on direct appeal.  The Court explained it would remand the case because 28 U.S.C. §2255 would not be available for a defendant who was not in custody and had fully discharged his term of probation.  Thus, inability to seek habeas relief constitutes grounds to review ineffectiveness claims on direct appeal.  The Court examined the statute and concluded it swept up a wide variety of expressive speech and that the letters at issue in the case fell within that category.  Thus, if the attorney had raised a constitutional challenge, the statute likely would have been found unconstitutional, satisfying the prejudice prong of IAC.  The Court remanded for a hearing on the performance prong, to determine if a failure to challenge the statute was ignorance of the law or failure to perform basic research, rather than strategy.

For a Conviction of Distribution of Child Pornography Under 18 U.S.C. §2252, the Government Must Prove Images Were Downloaded or Obtained by Another Person.


The Third Circuit held in United States v. Husmann, (No. 13-2688), that in a prosecution for distribution of child pornography, the Government must establish that the illegal images were actually downloaded or obtained by a third party.   The act of uploading images and making them available on a shared computer file or a peer-to-peer network is insufficient to justify a conviction under 18 U.S.C. §2252(a)(2).  In reaching this decision, the appellate court noted that these types of computer sharing programs allow individuals to place materials in shared folders, but the transfer of materials is not automatic.  Instead, another user must download the materials to view them.  It is the actual downloading of the images that the Government must establish as part of its case. 

A central part of the opinion was the discussion of what definition to apply to the word “distribute” within the statutory context.   Ultimately, the circuit court adopted the “ordinary meaning of the word “distribute” and determined that “distribute” under §2252(a)(2) means to transfer materials to another person.  This decision was consistent with several other circuits, as well as military courts, that have ruled that distribution in violation of §2252 occurs only when another individual downloads the images.  In making this determination, the appellate court rejected the more expansive definition of distribution found in the Sentencing Guideline.  The Third Circuit explained that the meaning of distribution for purposes of an enhancement under U.S.S.G. §2G2.2(b)(3) had “no bearing” on the statutory definition of the term. 

            In this case, Appellant David Husmann was on supervised release for a prior child pornography conviction, when the monitoring software in his computer notified Probation that he had accessed pornographic sites.  A search revealed a large number of saved images, as well as two file sharing programs installed on the computer.  Appellant was charged with distribution and possession; additional counts for receipt of child pornography were dismissed prior to trial.  At trial, the Government was able to show that Husmann uploaded images onto the sharing programs, but could not show when the files were loaded and could not establish that the images were successfully downloaded onto another computer.  Based on the lack of evidence that anyone accessed the files, Husmann filed a Rule 29 motion for a judgment of acquittal.  The district court denied the motion and Husmann was convicted by a jury. However, the Third Circuit vacated the conviction because the Government failed to offer any evidence that the materials were ever downloaded by anyone else, and therefore failed to prove distribution.  Thus the denial of the Rule 29 motion was plain error. 

Tuesday, September 16, 2014

District Court’s failure to rule on a motion constitutes an implicit denial of that motion. Significant pre-arrest delay does not always lead to a speedy trial violation. Delays attributable to co-defendants’ motions can be considered against defendant in speedy trial claims.

United States v. Craig Claxton, Appeal No. 12-3933 (3d Cir. August 18, 2014)
 
Claxton and others were charged with a conspiracy involving the transportation of cocaine between the Virgin Islands (USVI) and the US mainland.  The first trial in the case started without Claxton because he could not be found.  Two defendants were convicted and a mistrial was declared for the rest.  Two other defendants took an appeal prior to retrial.  While that appeal was pending, Claxton was arrested.  Upon retrial, which now included Claxton, he was convicted.  Post-verdict, the district court granted Claxton’s JOA motion, but failed to rule on Claxton’s R.33 motion for a new trial.  The Third Circuit reversed the grant of JOA and remanded.  Claxton moved for safety-valve relief at sentencing.  Judge denied and sentenced Claxton to 120 months.  This is the second appeal in the case (for Claxton, at least).  Court made several rulings (not all of which are included here) in affirming the conviction and sentence:
 
1.               No Waiver
The Circuit decided that Claxton had not waived the issues raised in his Rule 33 motion (asking for new trial based on admission of drug evidence in violation of FRE 403 and violation of Brady/Giglio).  Under Rule 29(d), when a judge grants a JOA, the judge is also required conditionally rule on the motion for new trial.  The district court failed to do so in this case, but Claxton did not raise that issue in the first appeal nor did Claxton renew his motion for new trial upon remand.  The Circuit decided that the district court’s failure to rule on the motion constituted an implicit denial.  The Circuit also declined to fault Claxton for the district court’s failure to rule because Claxton had timely filed his Rule 33 motion.  Ultimately, however, the Circuit decided that Claxton’s claims of violation of FRE 403 and Brady/Giglio were meritless.
 
2.               No Statutory or Constitutional Speedy Trial Violation
The indictment was returned on 12/19/06.  Claxton was arrested on 4/23/08 in Florida.  His initial appearance in the USVI was on 7/16/08.  Claxton’s trial began on 5/24/10. 
Circuit said there was no violation under the Speedy Trial Act (STA).  Under the STA, if no severance has been granted, then a period of time excludible as to one defendant is excludible as to all co-defendants.  Thus, even if Claxton was not responsible for any interlocutory appeals or pretrial motions, the appeals of co-defendants and their pretrial motions all served to stop Claxton’s speedy trial clock.
The Circuit also found no constitutional speedy trial violation, distinguishing this case from Velazquez, decided earlier this year.  In Velazquez, 6.5 years passed between the indictment and the arrest of defendant.  The Velazquez court concluded that all four Barker factors weighed in favor of finding a speedy trial violation:  (1) the length of delay was sufficient to trigger a Barker analysis; (2) the gov’t was not reasonably diligent; (3) Velazquez diligently asserted his speedy trial rights; and (4) there was prejudice (in that case, presumptive prejudice due to excessive delay).  On the contrary, for Claxton, the second and the fourth Barker factors weighed in favor of the gov’t.  On the second factor, Velazquez was easily distinguishable because the investigators in that case were lax in trying to find Velazquez – they checked NCIC eight times over five years.  Claxton had moved, left USVI, and the agents found him due to their own police work in tracking his passport application.  Plus, the delay was much shorter.  Therefore, the gov’t was diligent in trying to locate Claxton.  Furthermore, there was no prejudice under the fourth factor because Claxton was at large and unaware of the indictment for much of the pretrial time; he was only incarcerated for 14.5 months of that time; much of that delay was due to his co-defendants’ actions; and there was no specific occurrence of actual (vs. presumed) prejudice.

3.               No Violation of Right to Impartial Jury
Claxton claimed the jury was tainted by pretrial publicity.  Two weeks prior to his trial, there was another related conspiracy trial which was reported in the press.  That trial included the testimony of some of the same witnesses and included an organizational chart that named Claxton.  The Circuit reiterated that pretrial publicity does not necessarily taint the jury as long as the jurors agree to be fair and impartial and consider only the courtroom evidence.  Also, both jurors who had any knowledge about prior case were excused.
            Claxton also claimed jury tampering.  One potential juror was offered a bribe and she shared that information with another person on the panel.  The district court conducted a voir dire of the two, they stated that it wouldn’t affect their judgment, and, most importantly, they didn’t participate in the deliberations.  Therefore, no error.

4.               Defendant Not Eligible for Safety-valve
Prior to sentencing, Claxton had a proffer session with the gov’t.  During the session, Claxton never offered any information about the crime of conviction nor did the government ask for such information.  Because Claxton did not satisfy 5C1.2(a)(5), the district court did not err in imposing the mandatory minimum.

Determining the “most appropriate” Sentencing Guideline for convictions


In United States v. Boney, Nos. 13-3087, 3199 (3d Cir. 9/15/14), the Third Circuit heard cross-appeals from following a sentence imposed as a result of a jury’s verdict of guilt for distributing more than 500 g of cocaine, witness intimidation, and solicitation to intimidate a witness. The Defendant was first arrested after he arranged to buy large quantities of cocaine from someone who turned out to be an informant. Following his arrest, the Defendant agreed to cooperate with the Government, but disenchantment with the DEA led him to seek out a hit man to kill the informant who caused his arrest. The Defendant had a few meetings with the hit man, and told him that if he could not kill the informant, to kill his son.  Alas, the Defendant had not improved his ability to assess potential co-conspirators— the hit man too was a Government informant— and the Defendant was arrested again, this time on the witness intimidation charges. The Defendant was sentenced to 220 months, and appealed his conviction. The Government cross-appealed the District Court’s application of the Sentencing Guidelines.

The Court made short work of the Defendant’s appeal of his conviction, dismissing his five issues in a single footnote. Its opinion concerns the Sentencing Guidelines issues raised by the Government. The Court found that the District Court incorrectly selected §2J1.2—obstruction of justice— for sentencing the Defendant for the conviction for 18 U.S.C. § 1513(a)(1)(B) (attempting to kill another person with intent to retaliate against that person for providing to a law enforcement officer information relating to the commission or possible commission of a Federal offense). The Government contended, and the Court agreed, that the “most appropriate” guideline (§1B1.2 Application Note 1) for determining the Defendant’s score was § 2A2.1 (Attempted Murder).  The District Court erred in looking to the testimony presented at trial, rather than the conduct charged in the indictment, for determining the correct guideline. This crime charged attempted murder, and not obstruction of justice, so the correct guideline was the one that related to attempted murder.

The Court had more bad news for the Defendant. The witness intimidation was charged, and the Defendant convicted, under 18 U.S.C. §373 (solicitation of a person to attempt to kill another with intent to retaliate for providing information to a law enforcement officer relating to the commission or possible commission of a Federal offense, as prohibited by 18 U.S.C. §1513(a)(1)(B)). Although the Sentencing Guidelines Statutory Index lists two crimes applicable to §373 (§2A1.5 (Conspiracy or Solicitation to Commit Murder) and § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense and Guideline)), the District Court chose neither, again choosing  §2J1.2—obstruction of justice. The Court concluded that §2A1.5 was the “most appropriate” guideline, again, as the Defendant was charged and convicted of soliciting a murder.

The Defendant’s pre-sentence report had calculated the Defendant’s Guidelines sentencing range as 360 months to life, but the District Court had calculated the Defendant’s Guidelines sentencing range as 151-188 months. When sentencing the Defendant though, it varied upward and imposed a sentence of 220 months. The Court remanded the matter for resentencing.