Third Circuit Finds Government Made Prima Facie Case That Crime-Fraud Exception To Attorney-Client Privilege Applied, Reverses Order Quashing Subpoena

In United States v. John Doe, 429 F.3d 450 (3d Cir. 2005), the Third Circuit reversed the district court’s order granting an attorney’s motion to quash a subpoena. The Circuit found that the government had satisfied its burden of establishing a prima facie case that the crime-fraud exception to the attorney-client privilege applied

In the course of a grand jury investigation into the activities of a federal law enforcement officer ("Target"), the government sought the testimony of an attorney ("Attorney"). The government claimed to have evidence that Target’s purpose in consulting Attorney was to determine how to conceal future criminal conduct. Attorney moved to quash the subpoena, invoking attorney-client privilege. The government argued (1) that the crime-fraud exception applied because Target’s conversations with Attorney were in furtherance of the planned criminal activity, and (2) that the involvement and presence of a third party ("Witness") at certain conversations destroyed the privilege. The district court disagreed with both contentions and granted the motion to quash.

The government appealed. Because the government did not challenge the district court’s finding that Target and Witness shared a common interest, the Third Circuit did not reach the issue of whether Witness’s presence vitiated the privilege. The Circuit also dismissed as without merit the argument that the district court improperly focused on whether the evidence was cumulative and necessary.

The Third Circuit then turned to the government’s principal argument that the district court improperly interpreted the crime-fraud exception to the attorney-client privilege. The Third Circuit noted the absence of formal findings of fact regarding Target’s intent in consulting Attorney, but found the record sufficient to support a finding that the government had met its burden of establishing a prima facie case, meaning that "the evidence, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met" (quoting In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d Cir. 2000) (internal citation omitted). The elements are that "‘the client was committing or intending to commit a fraud or crime’" and that the consultation was ‘in furtherance of that alleged crime or fraud’" (quoting In re Grand Jury Subpoena, 223 F.3d at 217).

The district court also failed to make findings of fact regarding the intent of either Target or Witness, and it applied the wrong standard for the crime-fraud exception. Reviewing the entire oral opinion, the Third Circuit stated, leads to the conclusion that the district court improperly relied on whether the consultation assisted or furthered the crime, rather than focusing on the intent of Target and Witness in consulting with Attorney. And the record, the Third Circuit said, "is reasonably clear as to the criminal intent of Target." The Circuit thus reversed the order of the district court and remanded the matter to the district court with instructions to deny the motion to quash the subpoena.

Third Circuit Offers Split Decision on Miranda Challenge Involving a Confidential Informant

In United States v. Jacobs, No. 04-2214 (3d Cir. Dec. 14, 2005), the Third Circuit considered whether statements made on two separate occasions by a confidential informant to her FBI handler were involuntary and taken in violation of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). The first set of statements, made in March 2000, were offered by Jacobs on her own terms - she called her handler, requested a meeting, set the time and place of the meeting, and controlled the amount and type of information offered. The second set of statements, made in April 2000, were made in response to an interrogation by Jacobs's handler at the FBI office after Jacobs had been summoned to the office without explanation and without being told that her status as an informant had been "closed."

The district court suppressed both the March and April statements on voluntariness grounds after concluding that Jacobs's handler made an implied promise that her statements would not be used against her. The Third Circuit refused to determine whether there was an implied promise and, instead, simply considered Jacobs's relationship with her handler as one factor in the totality of the circumstances analysis of voluntariness. Applying the totality test, the Third Circuit agreed that the April statements - made in a custodial setting in response to interrogation without adequate warnings - were involuntary. It reversed the district court's decision on the March statements, however, finding that the circumstances of the March statements point to Jacobs's willingness to speak by her own choice.

Judge Aldisert filed a dissenting opinion arguing that the district court decision should have been affirmed in its entirety because the district court did not clearly err in concluding that Jacobs's handler made an implied promise that her statements would not be used against her.

BOP Regulations Categorically Limiting Amount of Time Inmate May be Placed in CCC Declared Invalid

The Third Circuit has ruled that newly enacted Bureau of Prisons (BOP) regulations categorically limiting the amount of time an inmate may be placed in a Community Corrections Center, to the lesser of ten percent of the prisoner's total sentence or six months, are invalid because they conflict with Congress' explicit directive in 18 U.S.C. § 3621(b) to make individualized assessments regarding placement and transfer determinations. In Woodall v. Federal Bureau of Prisons, No. 05-3657 (3d Cir. Dec. 15, 2005), Woodall, a federal inmate, challenged the BOP's failure to follow a District Court recommendation that he be placed in a CCC for the last six months of his 30 month sentence. Citing 28 C.F.R. §§ 570.20, 570.21 (enacted 2/15/05), the BOP explained that Woodall was only eligible to serve 11 weeks (10%) of his total sentence in a CCC.

After concluding that Woodall's petition was properly filed under 28 U.S.C. § 2241 (challenging the "execution" of his sentence), the Third Circuit concluded that the BOP's regulations, containing a categorical limitation on placement, conflicted with Congress' statutory directive, under 18 U.S.C. § 3621(b), requiring the BOP to consider individualized factors in making placement and transfer determinations. Accordingly, the Third Circuit granted Woodall's habeas petition and ordered the BOP to reconsider whether to transfer Woodall to a CCC after analyzing the § 3621 factors.

Cert petition filed in Sczubelek case

Earlier this year, the Third Circuit upheld the constitutionality of the DNA Backlog Elimination Act. The aforementioned DNA Act allows for the forceful extraction of blood samples from those on supervised release. These samples then undergo DNA analysis and are forever placed in a national data bank for the purpose of aiding law enforcement in solving crimes. Sczubelek, represented in the Third Circuit by Eleni Kousoulis of the Federal Public Defender's Office in Delaware, challenged the constitutionality of the DNA Act on appeal, arguing that these suspicionless searches, absent any legitimate penological or "special needs" justification, violate Sczubelek's rights under the Fourth Amendment.

The Third Circuit denied the challenge, via a 2-1 decision, and later denied rehearing the case en banc. On December 2, 2005, Sczubelek filed a cert petition with the United States Supreme Court seeking review of the Third Circuit's decision. Feel free to contact the Delaware office with any questions regarding the Sczubelek case and preserving a challenge to the DNA Act.

Appeal waiver in guilty plea upheld on appeal of unsuccessful motion to withdraw plea

The Third Circuit, in US v. Wilson, upheld an appeal waiver in a guilty plea agreement, where the defendant had filed an unsuccessful motion to withdraw the plea in the district court.
Wilson was indicted for numerous drug offenses. He later pled guilty to two drug charges. His plea agreement included an appeal waiver that waived the opportunity for appeals or habeas relief regarding his sentence, including claims arising under Blakely. Three weeks after his plea, Wilson filed a motion to withdraw the appeal, but the district court denied his motion and ultimately sentenced him to two consecutive sentences of 34 months.

Wilson appeals, raising three claims. First, he claims that his rights under the Interstate Agreement on Detainers ("IAD") were violated because he was shuttled between MD and PA before the charges against him were adjudicated; this claim includes an ineffective assistance claim due to his counsel’s failure to pursue the claim in the district court. Second, Wilson appeals the district court’s denial of his motion to withdraw his guilty plea. Third, Wilson argues that he is not bound by the appeal waiver in the plea agreement.

The Third Circuit, citing United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), noted its rule that a knowing and voluntary appeal waiver is enforceable if it does not "work a miscarriage of justice." The Court then stated that it would be a miscarriage of justice for the district court to enforce a plea agreement that Wilson should have been permitted to withdraw. Therefore, the Court reviewed the district court’s denial of Wilson’s motion, under an abuse of discretion standard.

The Court first noted that withdrawal of a guilty plea is "not an absolute right." Then, the Court listed three factors to evaluate in a motion to withdraw: (1) whether the defendant asserts innocence; (2) the strength of the defendant’s reasons to withdraw; and (3) whether the government would be prejudiced.

In review, Wilson did assert his innocence, but offered no facts to support it. The defendant cited coercion as a reason to withdraw, but again offered no valid support. Moreover, the Court decided that the package plea deal that Wilson entered was a permissible one. The Court, in upholding the guilty plea, determined that it need not reach the third factor in reviewing Wilson’s motion to withdraw his guilty plea. Likewise, because the Court ruled that Wilson’s appeal waiver was valid and enforceable under Khattak, it found that it lacked jurisdiction to hear his appeal and did not reach his IAD claim.

Government, by not considering downward departure, breached plea agreement

The Third Circuit, in US v. Floyd, held that the government, under a plea agreement, was required to consider whether defendant’s assistance merited a downward departure, even though the agreement stated that the government "may request" a downward departure if the defendant renders substantial assistance.

Floyd and the government entered a plea agreement where Floyd pled guilty to a drug crime that carried a statutory maximum of five years. The agreement also stated that the government "may request" a downward departure for Floyd’s cooperation if Floyd "renders substantial assistance." After entering her plea, Floyd traveled to speak with one of her co-defendants before his trial. The government conceded that this conversation likely led to his guilty plea. Before sentencing, the PSR reported Floyd’s guideline range to be 292-365 months, substantially more than the 60 months permitted by Floyd's plea bargain.

At sentencing, the government did not recommend a downward departure because of the substantial difference between her guideline range and her bargained for statutory maximum sentence. The district court ultimately disagreed with the offense level calculations and found her guideline range to be 41-51 months. The district court then sentenced her to 48 months.

Floyd appealed, arguing that the government acted in bad faith by not considering a downward departure for reasons outside of the plea agreement. The Third Circuit first noted that plea agreements are "contractual in nature." The Court stated that a defendant must show by a preponderance of the evidence that the government violated the plea agreement. Also, any ambiguities are to be resolved in favor of the defendant, due to the greater bargaining power enjoyed by the government.

The Third Circuit assessed the language of the entire plea agreement, stating, "under contract law, the court must read Floyd’s plea bargain in a manner that gives meaning to each provision." Therefore, despite the plea agreement’s language that states that the government "may" request a downward departure if Floyd renders substantial assistance, the Court found that Floyd had an expectation that the government would request a downward departure if she rendered substantial assistance so long as she did not otherwise breach the agreement or commit another offense. This reading resulted from the agreement’s language stating that, if Floyd renders substantial assistance, the government "may decline" to recommend a downward departure for only these two reasons. According to the Court, if unfettered discretion was afforded to the government, such discretion would completely render this other language meaningless.

The Court further determined that the government’s reasoning for declining to recommend a downward departure for reasons extraneous to the plea agreement failed to meet the good faith requirement as set out in United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). The Court found that the government cannot try to avoid performance on the contract simply because it made a mistake in calculating what Floyd’s guideline range would have been. Thus, the Court determined that Floyd was entitled to an evidentiary hearing on whether her assistance was warranted the government’s recommendation for a downward departure.

2254 exhaustion requirement not excused when claim likely futile in state courts

In Parker v. Kelchner, the Third Circuit ruled that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is not excused merely because petitioner’s claim would likely be futile on the merits in state court. Petitioner filed for habeas relief in the district court, stating that the PA Parole Board applied the 1996 version of the Parole Act in denying him parole. He argued that such application violated the Ex Post Facto Clause because he committed his offense before the enactment of the 1996 version of the Parole Act. The district court agreed, granting his petition.

The state appealed, claiming that the district court erred in hearing Parker’s claim due to failure to exhaust: he never pursued it in state court. Parker claims that pursuing the claim in state court would have been futile, because the state supreme court had already rejected this claim on numerous occasions. The district court agreed.

The Third Circuit has previously held that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is satisfied where a state’s procedural rules preclude a petitioner from raising the claim in state court. The Court, here, found that futility is different and does not relieve a petitioner from the exhaustion requirement. The Court cited Engle v. Isaac, 456 U.S. 107 (1982) in support of this proposition. In Engle, the Supreme Court found that a petitioner’s failure to object at trial cannot be excused as futile, simply because the objection was unacceptable to that court at that time.

Despite a concurring opinion in the Third Circuit and some Supreme Court caselaw that lends support to Parker’s futility argument, the Court agreed with numerous sister circuits and rejected it. The Third Circuit also viewed the PA Supreme Court’s repeated willingness to hear the issue as an indication that Parker’s claim may not have been futile in state court.

Capital Habeas Case: Counsel's "Agreement" to Non-Adversarial Sentencing Proceedings A Result of Failure to Prepare

In Marshall v. Cathel, No. 04-9007 (3d Cir. Nov. 2, 2005), a capital habeas appeal, the Third Circuit affirmed the district court’s grant of sentencing phase relief.

The defendant was convicted of arranging a contract that resulted in the murder of his wife. During trial, defense counsel presented evidence of Marshall’s civic and charitable activities and four character witnesses who testified to the defendant’s reputation for honesty and integrity. Counsel also called his client and his client’s three sons to testify about tapes he left for them that were suicide notes of sorts.

Immediately after the conviction, the defendant’s family left, unaware that the sentencing phase would commence the same day. The defendant fainted and was taken to the hospital, but was back in the courtroom by the early afternoon. While the defendant was at the hospital, defense counsel conferred with the prosecutor. They reached an "agreement." The prosecutor would only pursue one of three aggravating factors, namely, that the defendant had hired someone to kill his wife. The prosecution agreed to stipulate to one mitigating factor, that the defendant had no criminal record. Also, defense counsel would retain the right to argue the "catch-all" mitigating factor. Both parties would waive openings and only make short closing arguments to the jury. After these brief proceedings, the defendant was sentenced to death, the jury finding the one aggravating factor outweighed both mitigating factors.

In the state post-conviction proceedings, the courts did not grant a full evidentiary hearing on all of Marshall’s claims and the issue of preparation for the sentencing phase was not the subject of a hearing. The New Jersey Supreme Court rejected the claim saying the court was unwilling to second guess counsel’s strategic decision because the jury found both mitigators. Also, it said that the issue of whether additional investigation would have unveiled additional mitigating evidence was too speculative to merit an evidentiary hearing.

In a prior appeal, the Third Circuit had remanded for a district court evidentiary hearing to address the preparation or investigation, if any, that counsel performed in anticipation of the penalty phase and his reasons, if any, for his actions or inactions. The district court conducted those proceedings.

The Third Circuit concluded that the New Jersey Supreme Court’s conclusion that counsel had been effective was objectively unreasonable. The Court identified several facets of its decision. One was a total failure of counsel to prepare for the sentencing phase. Next, once the verdict was in, he did not request a continuance. In addition, his closing was inadequate. In his closing, counsel recalled only a few pieces of evidence from the trial, did not even mention the defendant’s sons (whose testimony he had felt had moved the jury), and did not plead for his client’s life. The appeals court agreed with the district court that counsel put on no mitigating evidence because he had none to put on.

It did not make a difference that the defendant was a difficult client who was difficult to control. Nor did it make a difference that the community and perhaps his own sons had turned against him. Counsel still had a duty to investigate mitigating circumstances. The Court found it particularly glaring and egregious that counsel did not interview the defendant’s sons with respect to the sentencing phase specifically. While counsel did not believe the sons would plead for their dad’s life, he had nothing on which to base that belief.

The Court held that it was unreasonable for counsel to put so much stock in the evidence he presented in the guilt phase once the jury rendered its verdict. The Court concluded, "[Counsel] did not so much agree to a non-adversarial penalty phase, as he brought it on himself as a result of his own failure to have prepared for that phase of trial."

Section 2254: Counsel Ineffective For Failing to Suppress In-Court Identification

Thomas v. Varner, No. 04-2856 (3d Cir. Nov. 4, 2005). In this § 2254 proceeding, the Third Circuit affirmed the district court decision that counsel was ineffective for failing to object to an in-court identification.

The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.

In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.

Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.

On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.

Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.

The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.

Batson, habeas, and the “McMahon videotape.”

The Circuit Court, in Wilson v. Beard, No. 04-2461 (3d Cir. Oct. 13, 2005), affirmed a lower court’s grant of habeas relief to a petitioner convicted of murder 21 years ago. In doing so, the court touches on a number of intriguing issues concerning both Batson and timeliness under 2244. Most notable is the petitioner’s success under Batson relying largely upon the notorious "McMahon videotape." First however, the court tackles some issues pertaining to timeliness under 2244.

The petitioner, Zachary Wilson, was convicted of first degree murder in 1984, two years before the Supreme Court’s landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor in Wilson’s case was Jack McMahon, an Assistant District Attorney in Philadelphia. In 1988, Wilson unsuccessfully sought post-conviction relief (PCRA) in PA. The PA Supreme Court denied review of his case in 1996. On about April 1, 1997, a videotape of McMahon was released in which McMahon gave a training session on jury selection to other prosecutors. The tape reveals a highly discriminatory practice of striking African-Americans based on race.

On April 3, 1997, the DA’s office sent Wilson’s counsel at the time a letter regarding the tape. Wilson soon filed a second PCRA petition, but the PCRA court found the Batson issue to be waived. Wilson’s state appeals were unsuccessful.

Wilson next filed for habeas relief in the U.S. District Court. The Commonwealth responded, arguing that the petition was time-barred under AEDPA’s one-year statute of limitations. The parties agreed that the discovery of the McMahon tape constituted the factual predicate for the habeas petition, and therefore the one-year limitations period should run from when that tape was discovered. However, the Commonwealth argued that Wilson’s petition was four days late because he could have discovered the tape on April 1 "through the exercise of due diligence." § 2244(d)(1)(D). Wilson disagreed, arguing that his presence on death row 13 years after his conviction in this case prevented such discovery; therefore the one-year period should not run until his counsel actually received notice from the DA’s office about the tape. After factoring the tolling of the limitations period for his state PCRA proceedings and appeals, if the latter date was used, Wilson’s petition would be timely by one day.

The Third Circuit, using a "reasonable diligence" standard, agreed with the District Court that Wilson did not fail to exercise due diligence in not discovering the tape during the period in which the tape was reported on the local news. Therefore, the limitations period would run from the date on which Wilson’s attorney received notice of the tape via the DA’s letter.

The Third Circuit next agreed with Wilson and the District Court’s application of FRCP 6(a), which excludes the day that an event occurred when calculating the limitations period from that event. Basically, application of the rule would provide Wilson 365 days from the date that he received notice of the tape, rather than 364. The Circuit Court’s decision was consistent with rulings of other Circuit Courts.

Next, the Court agreed with Wilson and the District Court’s application of FRCP 6(e), which provides a 3-day mailbox rule for determining receipt of service on a party. The Court determined that application of the rule was "eminently sensible" because the Court must add some additional time to account for the time it takes for a letter to be received.

Finally, the Court also agreed that Wilson was entitled to an evidentiary hearing regarding his Batson claim. The fact that the state PCRA Court had found that Wilson had waived his Batson claim was not the equivalent of "procedural default," which would bar habeas relief. The Court determined that the PA Courts had erred in failing to apply PA Supreme Court precedent that would have allowed Wilson to seek post-conviction relief.

Upon the Third Circuit’s thorough inspection of the relevant habeas issues, the Court reviewed the merits of Wilson’s Batson claim, which relied primarily upon the McMahon tape to establish that McMahon had engaged in purposeful discrimination in striking black venirepersons. The following summary follows the organization of the Court’s decision:

Batson step one: The Court relied upon the explicit admissions in the McMahon tape to find that Wilson had established a prima facie Batson violation. Of the 16 people struck by McMahon, 9 were black, the race of the remaining 7 is unknown. McMahon's testimony at the evidentiary hearing before the District Court failed to convincingly refute this finding.

Batson step two: The Court found that, given that 20 years had elapsed since Wilson’s trial, the explanations offered by McMahon at the evidentiary hearing were sufficient to carry the Commonwealth’s minimal burden in offering some semblance of a race-neutral explanation for each person struck.

Batson step three: The Court again relied upon the tape in affirming the District Court’s decision that McMahon had, in fact, struck jurors based on race. The tape reveals a longstanding practice of McMahon, and the Court found no reason to believe that McMahon was following a different practice during Wilson’s trial. Finally, at step three of the Batson analysis, the Court states that Wilson’s "burden is to show that it is more likely than not that McMahon did so with respect to at least one of the jurors he struck. . . . We agree with the District Court that Wilson has carried this burden."

The Court ultimately affirms the District Court’s grant of habeas relief, stating that the facts of the case coupled with the McMahon tape "give[] rise to an almost unavoidable inference that the prosecutor engaged in prohibited discrimination."

2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se

Defendant was charged in New Jersey state court on multiple counts of theft by deception involving prospective buyers whose investments in a failed condominium development were not refunded. Counsel was appointed, but a few months before trial was scheduled to begin new counsel was appointed and requested a continuance in view of the lengthy witness list counsel just received, the need to conduct extensive interviews and the late production of discovery. The trial court denied the continuance request, and the defendant then elected to represent himself at trial because he was more familiar with the facts and witnesses than was his new counsel. The trial court granted the request to proceed pro se, and counsel remained as back-up. After losing at trial and on direct appeal, defendant filed under 2254. The Third Circuit reversed the district court's denial of relief, concluding that the denial of the request for continuance rendered the defendant's waiver of his Sixth Amendment right to counsel involuntary and that the state courts' decision was contrary to and an unreasonable application of established Supreme Court law. Pazden v. Maurer, http://www.ca3.uscourts.gov/opinarch/034236p.pdf

Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement

In United States v. Naranjo, http://www.ca3.uscourts.gov/opinarch/034759p.pdf, the Third Circuit held that if officers deliberately used a two-step strategy to obtain a confession in violation of Miranda, first interrogating a custodial defendant without warnings and then obtaining a postwarning statement, both statements must be exluded unless curative measures were taken before the postwarning statement was made. This was the Court's first application of the recent plurality decision in Missouri v. Seibert, 542 U.S. 600. In Naranjo's case, the suppression hearing took place prior to the Seibert decision. The evidentiary hearing revealed that the entire interrogation session was custodial, but that the warnings were only given toward the end of the session. The government conceded that the statements given in the first part of the interrogation session should be suppressed, but contended that the postwarning statements should be admitted because they were voluntarily given under Oregon v. Elstad, 470 U.S. 298. Because the hearing took place prior to Seibert, the district court made no finding whether the officers' decision to interrogate without giving warnings was deliberate, and the Court therefore remanded. The Court stated the test in these cases as follows: "Accordingly, unless the agents deliberately withheld warnings, Elstad controls [and] the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct . . . . If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."

3rd Cir. expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error

United States v. Hinton, No. 03-3803 (3d Cir. Sept. 14, 2005), deals with a challenge to out-of court testimony under the Confrontation Clause, most recently addressed by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). Favoring application of Crawford’s third formulation of "testimonial" ("statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") as ensuring compliance with the Confrontation Clause, the Third Circuit concluded that, while the witness’s 911 call here was non-testimonial, his statement to police that Hinton had threatened him with a gun was testimonial. While its admission was error because there was no showing that the witness was unavailable or that Hinton had an opportunity to cross-examine him, such error was harmless because the statement did not affect the jury’s decision. The Third Circuit affirmed the conviction, but vacated the sentence and remanded for resentencing in accordance with Booker.

District court’s failure to include final forfeiture order was clerical error

In United States v. Bennett, No. 04-3650 (3d Cir. Sept. 12, 2005), the Third Circuit affirmed the district court’s amended judgment to include a final order of forfeiture three years after sentencing. Though Bennett was sentenced in August 2001, the district court did not amend the judgment to include a final forfeiture order, as required by Fed. R. Crim. P. 32.2(b)(3), until August 2004, relying on Fed. R. Crim. P. 36, which allows the court to correct clerical errors in the judgment. The Third Circuit concluded that the district court’s failure to make forfeiture a part of the sentence was clerical in nature, rather than substantive, because the parties had stipulated to the forfeiture, a preliminary order of forfeiture had been issued, and the omission of a final order resulted from organizational failure, not legal error.

3rd Cir to consider en banc whether Booker applies to restitution and forfeiture

The 3rd Cir has sua sponte voted to rehear en banc three appeals previously argued before two different panels in which the issue is whether the rule of Blakely and Booker applies to orders of restitution and forfeiture. See US v. Kennard Gregg, No 04-2912 (9/16/05); US v. James Fallon No. 03-4184 (both addressing restitution); and US v. Paul Leahy, No. 03-4490 (addressing forfeiture.) In the Gregg and Fallon, the Court has stated that the following issue is to be addressed:

Whether orders of restitution are a criminal penalty and whether the
decision of the Supreme Court of the United States in Booker applies to such
orders under the MVRA (the mandatory restitution Act).

The issue in Leahy is whether Booker applies to forfeiture, and also "whether orders of restitution are a criminal penalty and whether Booker applies to such orders under the VWPA" (the discretionary restitution Act in effect prior to the MVRA).
The en banc argument is scheduled for Nov. 1, 2005. The granting of en banc review in these cases indicates that the 3d Circuit judges are split or undecided on the question of whether a jury finding or admission by defendant regarding loss amount is required under the reasoning of Blakely and Booker in order for a judge to be able to impose restitution or forfeiture.

The granting of en banc consideration makes all the more clear the importance of objecting on Blakely/Booker grounds to any sentence that includes an order of restitution (or forfeiture) where the amount of loss (or ill-gotten gain) is not admitted or proven to the jury beyond a reasonable doubt. The 3rd Cir rejected this argument pre-Blakely in US v. Syme, 276 F.3d 131 (2002) in the context of the old version of the restitution act -- the VWPA -- which made the amount of restitution discretionary with the judge. The Court in Syme ruled, following a long line of precedent within the Circuit (and in most other circuits), that restitution is a "criminal penalty" and thus that it must be analyzed as such under the rule of Apprendi. (The issue statement in Gregg and Fallon indicates the Court will be reconsidering this part of Syme too.) But the Court, without the benefit of Blakely, ruled that since the VWPA did not specify a maximum amount of restitution, the rule of Apprendi regarding increases in the statutory maximum did not apply.

At least two things have changed since Syme, requiring the Circuit to reconsider that holding. First, under the new restitution act -- the MVRA -- restitution in the full amount of the loss is no longer discretionary, but mandatory. Second, Blakely and Booker have clarified what the Supreme Court meant by "statutory maximum." The statutory maximum for Sixth Amendment and Apprendi purposes is not just a number specified in a statute, but rather, the "maximum sentence a judge may imposed solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S. Ct. at 2537. Thus, for Apprendi purposes, the maximum restitution a judge may impose is the amount of loss "reflected in the jury verdict or admitted by the defendant." If the jury does not find a loss amount beyond a reasonable doubt, and the defendant does not admit to an amount, then the statutory maximum restitution is zero. Restitution based only on judge-found facts would violate Apprendi, Blakely and Booker.

(To the extent that forfeiture can be viewed now, in light of Blakely and Booker, as a criminal penalty also subject to the Sixth Amendment right to jury trial, this same argument applies there. The only difficulty is that the in Libretti, 516 US 29 (1995), the Supreme Court held that there is no Sixth Amendment right to jury trial on forfeiture. But the reasoning of Libretti, which depends on the distinction between conviction and sentence, has been substantially undercut by Blakelyy and Booker, which "have made clear that distinguishing between a conviction and a sentence obscures what matters for constitutional purposes -- namely, facts that increase a defendant's punishment." US v. Lloyd, 407 F.3d 608, 615 (3rd Cir. 2005).)

An interesting question that may arise is whether, assuming Blakely and Booker do apply to restitution under the MVRA, could the Court impose a Booker style cure -- making the restitution discretionary as it was under the VWPA, and then permit restitution based on judge-found facts? The answer is clearly no. It simply makes no difference to the Apprendi analysis whether the amount of restitution is mandatory as under the MVRA, or whether judge has the discretion to impose less than the total amount of loss as under the VWPA. The Booker remedy of advisory guidelines cures the Sixth Amendment error inherent in mandatory guidelines only because the guidelines operate against the backdrop of statutes which set maximum sentences for each offense. Thus, if, as under Booker, the guidelines are made advisory, or even if the guidelines were entirely eliminated, the courts would retain statutory authority to impose up to the maximum allowed by the statute for the offense of conviction.

The same is not true for restitution. The court's only authority for imposing restitution is the restitution statute, and whether that statute is the MVRA or the VWPA, the maximum amount of restitution that can be imposed is determined by the amount of loss. That is true regardless of whether the court, as under the VWPA, has discretion to impose less than the maximum. Under Blakely and Booker, any fact which controls the maximum sentence that can be imposed must be admitted or proven to the jury. Thus, whether under the MVRA or under the VWPA, the amount of loss, since it controls the maximum restitution that can be imposed, must be subject to this Sixth Amendment jury requirement.

Federal courts lack authority to review state court retroactivity decisions

In Warren v. Kyler, No. 03-2190 (Sept. 7, 2005), the Third Circuit concluded that it lacked the authority to apply a new state court decision retroactively in a federal habeas proceeding where the state court had already declined to give retroactive effect to the case. The Court noted that nothing in the United States constitution requires retroactive application of state court decisions on criminal matters and, thus, the state courts are free to determine the retroactivity of their own jurisprudence.

Pro se litigant's fourth collateral motion not considered "second or successive"

In In Re Wagner, No. 03-4254 (3d Cir. Sept. 6, 2005), the Third Circuit ruled that a pro se petitioner's fourth collateral motion could not be classified as a "second or successive" petition under 28 U.S.C. § 2255 which would require permission of the Court for filing. The Court reasoned that petitioner's first three motions did not constitute § 2255 petitions because petitioner's first collateral motion never invoked § 2255, his second motion was recharacterized as a § 2255 without notice and an opportunity to amend or withdraw, and his third motion was denied as a second or successive petition without reaching the merits. Accordingly, the Court concluded that it was bound to construe petitioner's fourth motion as his first motion for relief under § 2255 and no permission to file the petition was required.

Counsel Not Ineffective for Advising Against Appeal.

In Fountain v. Kyler, No. 03-4777 (August 25, 2005), the Circuit held that counsel was not ineffective, when, out of fear the client might face death penalty again, counsel advised not to appeal adverse trial court ruling on ineffectiveness claim.

Fountain was capitally prosecuted and sentenced to death under a capital statute that the Pa. Supreme Court found unconstitutional. He was then resentenced to life. After that, he pursued an ineffectiveness claim against his trial counsel in the Court of Common Pleas which dismissed his claim. By that time Pennsylvania had a new death penalty statute. His attorney advised him, however, not to appeal the adverse Common Pleas Court ruling and Fountain acceded to her advice. Later, over three dissents, the Pa. Supreme Court ruled that the new death penalty statute could not be applied retroactively to people, like Fountain, prosecuted under the earlier statute.

Fountain then pursued ineffectiveness claims against his second lawyer for the advice not to appeal the ineffectiveness ruling. The state courts ruled against him. The Circuit held that the ruling of the Pa. Superior Court denying the claim was not contrary to or an unreasonable application of clearly established federal law. While Pennsylvania caselaw suggested that Fountain could not be capitally retried, a U.S. Supreme Court opinion suggested he could be.

Upholding Random Car Searches at Prisons

The Third Circuit has upheld the Pa Department of Correction's policy of subjecting prison visitors' cars to random searches against a constitutional attack made by the parents of a prisoner at SCI-Huntingdon. See Neumeyer v. Beard, No. 04-1499 (3d Cir. 8/25/05) (precedential opinion on website).

Convention Against Torture -- Standard to Apply

In Kamara v. Attorney General of the United States, No. 04-2647 (August 29, 2005), the Third Circuit set out the standard to be applied when an individual seeks asylum under the Convention Against Torture (CAT) from removal to a country occupied in part by a government power and in part by rebels. In Kamara's case, the INS sought to remove him to Sierra Leone. The Immigration Judge granted asylum holding that it was nearly certain that Kamara would be tortured by the rebels and there was a reasonable chance that he would be subject to abusive treatment from the Sierra Leone government. The Board of Immigration Appeals (BIA) reversed. Kamara filed a petition for writ of habeas corpus which the district court granted. The 3d Circuit vacated the district court's opinion and remanded to the BIA holding that the BIA should apply the proper standard for CAT asylum claims, namely that Kamara was entitled to CAT protection if he could show that the cumulative probability of torture by the government and the rebels exceeded 50%.

Brady violation - dismissal with prejudice

In US v. Jareem Fahie (No. 04-1567 8/16/05), the 3rd Cir explains when dismissal with prejudice is appropriate for a violation of the government's obligation under Brady v. Maryland to disclosed exculpatory information to the defense. The court concludes that dismissal with prejudice for a Brady violation is appropriate only in cases of deliberate or willful misconduct, since this remedy is needed in such cases for deterrence. In the absence of such misconduct, the retrial will cure any prejudice resulting from the Brady violation.

Mail Fraud - "Culpable participation" requirement

In US v. Marsha Dobson (No. 04-2169, 8/16/05), the 3rd Cir has written a very helpful decision regarding the "cuplable participation" requirement in the mail fraud statute. This decision is also very helpful on the issue of plain error in jury instructions. The court ruled, following its prior decision in US v. Pearlstein, that it is not enough for the government to show that defendant participated in a fraudulent scheme; "rather, it must show that the defendant did so knowingly and 'in furtherance of the illicit enterprise.'" Thus, "the relevant inquiry is not whether the defendant acted knowingly in making any misstatement, but whether she did so with respect to the overarching fraudulent scheme -- that is, the particular 'illicit scheme' charged in the indictment."
As the court explained, this case involved two layers of potential fraud or misrepresentation -- the defendant's misrepresentations as a salesperson for a fraudulent enterprise, and the fraudulent enterprise itself. The court found the district court's instruction on this issue constituted plain error because it did not convey the culpable participation aspect of the knowledge element. The instruction allowed the jury to convict based on the defendant's own misrepresentations, without proof that she knew about the the enterprise's broader illicit purpose.

‘Use of a minor’ enhancement and footnote about Feeney Amendment

In United States v. Pojilenko, No. 03-4446 (3d Cir. 7/27/05), the Third Circuit determined that, in order to apply the ‘use of a minor’ enhancement under U.S.S.G. § 3B1.4, the district court must find an affirmative act, rather than just mere participation in a crime with a minor.

Also, the Court disagreed with the Eleventh Circuit, and ruled that where a defendant participates in a conspiracy, and a member of that conspiracy "used a minor" as described in § 3B1.4, such use could not be attributed to the defendant, even if the co-conspirator's ‘use of a minor’ was foreseeable. This holding may have greater ramifications upon the government's ability to assign relevant conduct where the justification is simply vicarious liability under conspiracy law.

Interestingly, as noted on www.sentencing.typepad.com, the Court also dropped the following footnote:
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003). He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity. We decline to do so. This argument was not advanced in the District Court, and our review is confined to plain error. The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993).

Because the Court seems to only reject the defendant's argument due to its plain error posture, it appears that the Court may find some merit to the very valid argument that the Feeney Amendment so changed the Sentencing Reform Act (SRA) and the Sentencing Commission that the resulting sentencing scheme is wholly unconstitutional, or that the SRA is only constitutional as in effect prior to the Feeney Amendment. Perhaps, if the Supreme Court or the Third Circuit were presented with a Mistretta argument, post-Feeney, the outcome would be different.

Rodriguez and Gov c.a.v. letters in Booker remand cases

In a number of 3rd Cir. appeals pending likely remand for resentencing in light of Booker, the government over the last month has filed letters requesting that the Circuit hold the cases under advisement ("curia advisari vult" or "c.a.v.") pending a decision from the Supreme Court in Rodriguez v. US, No. 04-1148.

Rodriguez is a case in which the 11th Circuit applied a very difficult plain error test to Booker pipeline cases, holding that remand would be granted for Booker plain error only if the defendant showed a reasonable probability that the judge would have granted a lower sentence under the an advisory guideline system. (The 3d Cir. plain error test is the most reasonable of all the circuits -- see Davis post on blog below.) The defendant petitioned for cert in Rodriguez, and the government in response basically agreed cert should be granted, since the circuits are split on the plain error standard.

These government c.a.v. request letters should now come to a quiet end, and the ones that were filed should be denied, since the Supreme Court yesterday (6/20/05) denied cert in Rodriguez. This denial of cert completely undercuts the government's argument for delaying the remands.

Alternative Sentences Constitute Harmless Error Under Booker

In United States v. Jaheed Hill, No. 04-3904 (3d Cir. 6/14/05), (click to open), the Third Circuit joined several sister circuits in holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the Guidelines, any error that may attach to a defendant's sentence under Booker is harmless.

Recent 3rd Cir decisions on Booker

The 3rd Circuit has issued two decisions recently regarding US v. Booker, one relating to retroactivity for 2255 purposes, and the other relating to waivers of appeal:

In US v. Garry D. Lloyd, No. 04-3549 (3d Cir. 5/17/05), (click to open) the Circuit followed other circuits in holding that Booker is not retroactive for purposes of collateral attack under section 2255. The Court ruled that although Booker states a new rule, it is not a "watershed" rule for Teague purposes, and therefore is not retroactively applicable to cases which became final before Booker was issued.

In US v. Rogers Lockett, III, No. 04-2244 (3d Cir. 5/5/05), (click to open), the Circuit affirmed the denial of a motion to suppress evidence. The Circuit also refused to remand for resentencing in light of Booker because appellant had waived the right to raise sentencing issues on appeal, having reserved only the right to appeal the motion to suppress. The Court reasoned that the waiver of appeal was not rendered unknowing or involuntary by the unanticipated ruling in Booker, since a defendant pleading guilty and waiving the right to appeal always takes the risk that there will be future developments in the law that he or she will not be able to take advantage of.

3rd Cir Decision on Booker Remands

In US v. Kevin Davis (No. 02-4521, 4/28/05), the 3rd Circuit has finally issued a published opinion articulating its position regarding remands for resentencing in light of Booker. The Court held that in cases now on appeal that were sentenced before Booker in which there was no objection made to sentencing under the guidelines, for purposes of review for plain error, prejudice will be presumed and the cases will be remanded for resentencing. Thus, the test for plain error is met in any case in which the court followed the mandatory guidelines in imposing sentence. As the Circuit explained,

[W]e cannot ascertain whether the District Court would have imposed a greater
or lesser sentence under an advisory framework. But the mandatory nature
of the Guidelines controlled the District Court’s analysis. Because the
sentencing calculus was governed by a guidelines framework erroneously believed
to be mandatory, the outcome of each sentencing hearing conducted under this
framework was necessarily affected. Although plain error jurisprudence generally
places the burden on an appellant to demonstrate specific prejudice flowing from
the District Court’s error, in this context– where mandatory sentencing was
governed by an erroneous scheme– prejudice can be presumed.

The Court also concluded (quite reasonably) that from the standpoint of judicial economy, it makes much more sense to remand such cases for resentencing rather than to spend judicial resources endlessly litigating plain error issues, as other circuits are doing. The Court stated,

This approach results in uniform treatment of post-Booker defendants on direct appeal, fostering certainty in the administration of justice and efficient use of judicial resources. Moreover, as the Court of Appeals for the Second Circuit has noted, “correction of error in the context of sentencing does not precipitate . . . burdensome and often lengthy consequence[s]” on remand. United States v. Crosby, 397 F.3d 103, 117 (2d Cir. 2005).

New Booker Resources

The Federal Defender Office for the Eastern District of Pennsylvania has two new resources available for litigating Booker sentencing issues:
1) Booker Litigation Strategies Manual (April 20, 2005)
2) Model Sentencing Memorandum (post-Booker)

In addition, Fran Pratt, Research and Writing Attorney, Federal Defender Office, Alexandria, VA, has updated her Outline of post-Booker decisions. (April 17, 2005).

3rd Cir withdraws King

On April 19, 2005, the 3rd Circuit withdrew its unpublished decision in King, mentioned in the post below, and on April 25, 2005, the Court reissued the King opinion without the intriguing footnote 2. (But the new King opinion does include an interesting concurrence by Judge McKee regarding his concern that the district court may have been biased against tax offenders.) (King available here.)

Fascinating Footnote re Booker

As noted on Prof. Berman's blog, the Third Circuit in a not-precedential opinion, US v. King (No. 03-4715, 4/14/05), has attached a fascinating footnote about Booker which seems to say that the district courts cannot apply enhancements unless they were found by the jury beyond a reasonable doubt or admitted by the defendant. (The Circuit remanded for resentencing in light of Booker.) Here is the footnote:

FN. 2 Our discussion of the sophisticated means enhancement in no way suggests that a sentencing court must apply such an enhancement even where it might otherwise have been appropriate. It is clear that in the post Booker universe,
the district court is free to reject all such enhancements in the appropriate exercise of its discretion. Moreover, to the extent the sentencing court may decide to enhance a sentence based upon factors such as those incorporated into the sophisticated means enhancement, it must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable. That fact finder must be a jury unless a defendant waives his/her right to a jury trial.

3rd Cir Remands in light of Booker, even with appellate waiver

In US v. Herman Foman, No. 04-2508 (Apr. 7, 2005) (not-precedential), the Circuit remanded for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Although the opinion does not make any mention of it, the record reveals that the case involved a conditional guilty plea in which the defendant waived all of his appellate rights, except for the right to appeal the denial of his motion to suppress evidence. The appellate waiver language in Foman's plea agreement is identical to the broad appellate waiver language used in all plea agreements in the E.D. Pa. The Foman plea agreement reads in pertinent part as follows:

9. In exchange for the undertakings made by the government in entering this plea
agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, . . . except as provided in paragraph 8 above [relating to defendant's right to appeal from the denial of the motion to suppress].

United States v. Herman Foman, Crim. No. 03-486, "Guilty Plea Agreement" p. 8. (entered on docket for E.D. Pa. Feb. 19, 2004).

The government in Foman, moreover, argued in its letter response commenting on the applicability of Booker that "Foman waived his right to raise any Booker claim in the appellate waiver in his plea agreement." (Gov. Booker letter in US v. Foman, Mar. 24, 2005).

In spite of the appellate waiver covering sentencing issues, this Court nonetheless remanded Foman for resentencing in accordance with Booker. The Court did not address the appellate waiver, but instead only stated,

Having determined that the sentencing issues appellant raises are best
determined by the district court in the first instance, we will vacate the
sentence and remand for re-sentencing in accordance with Booker.

Although it is difficult to know how much, if anything, to read into a not-precedential opinion which does not give the court's reasoning, it would appear the Circuit quite reasonably concluded that the Booker issue fell within the "miscarriage of justice" exception to appellate waivers carved out in United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).

3rd Cir Issues More Booker remands

In two not-precedential cases, the 3rd Cir has continued its policy of remanding for resentencing under Booker where the district court, in sentencing before Booker, treated the guidelines range as mandatory.

In US v. Spivey, (No. 04-2057, 3/22/05), the Circuit issued its most extensive (although still brief) discussion of plain error. The Court stated that plain error analysis applies since no Sixth Amendment objection was raised at sentencing. The Court then noted that it was "at least arguable" that the sentence did not violate the Sixth Amendment since defense counsel admitted to the enhancement in question which increased the defendant's criminal history.

Even without the Sixth Amendment violation, however, the Court found remand was required under Booker because "the District Court's mandatory application of the Guidelines to Spivey's sentence was in error, and we cannot say from the record before us whether that error 'had a substantial and injurious effect or influence in determining the [sentence].'" (Citing Kotteakos). The Court then concluded with the language used in all its Booker remands: "Therefore, having determined that the sentencing issues Spivey raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker." This case thus continues the Circuit's policy of remanding for resentencing in any case where the district court viewed the guidelines as mandatory, regardless of whether there was an objection and regardless of whether there was a Sixth Amendment violation.

In US v. Simmons (No. 03-2013 3/22/05), the Circuit remanded for resentencing under Booker even though the defendant had received an upward departure. The defendant there, prior to Blakely, had originally appealed his sentence of 48 months on the ground that the judge improperly departed upward from the guideline range based on underrepresentation of criminal history. Defense counsel sought to supplement after Blakely, and the Court held the case under advisement pending Booker. In remanding, the Court said only that the Booker sentencing issues "are best determined by the district court in the first instance." This case makes clear that remand is appropriate even when the sentence was pursuant to an upward departure.

3rd Cir rejects challenge to BOP good time calculation

The 3rd Cir., in O'Donald v. Johns, (No. 04-2990, 3/22/05), rejected a habeas challenge to the way the Bureau of Prisons calculates the 54 days of good conduct time ("GCT"). The BOP has been interpreting the statute, 18 U.S.C. 3624(b), as allowing for 54 days of GCT "for each year served," which takes into account the fact that an inmate's time actually served becomes shorter each year as he is awarded GCT. The prisoner argued that the statutory language requires the BOP to calculate GCT based on the sentence imposed, not the time actually served. The Circuit found that the statutory language is unclear and ambiguous, and that the Court should therefore defer to the BOP's interpretation since it is an reasonable one. In so ruling, the Court joins the 1st, 7th, and 9th Cir.s in upholding the BOP on this issue.

3rd Cir upholds DNA collection as condition of SR

In US v. Sczubelek, (3/21/05, No. 03-2173) the 3rd Cir., following other circuits, upheld the constitutionality under the Fourth Amendment of the DNA Act. This law requires those in custody or on supervised release, parole or probation to give a DNA sample if they have been convicted of a qualifying federal offense such as bank robbery. The Court applied a reasonableness analysis under US v. Knights, 534 U.S. 112 (2001). The Court concluded that the intrusion was reasonable based on the following factors: the intrusion of a blood test is minimal, those on supervised release have a reduced expectation of privacy, the government has a compelling interest in the collection of identifying information on offenders, probation officers have no discretion regarding who is required to give a sample, the uses of the samples are limited, and the samples can be expunged if the conviction is reversed. Judge McKee dissented.

3rd Cir Continues Remands Under Booker

Continuing its broad approach to remands for resentencing in light of Booker, the 3rd Circuit in yet another not-precedential opinion, remanded for resentencing in a case involving a defendant sentenced at the bottom of his guideline range as a career offender -- US v. Mitchell (No. 03-3862, 3/11/05). This remand is a striking demonstration of just how broad the 3rd Circuit's approach is, since appellate counsel had filed a no-merit brief under Anders, but defendant in an informal pro se brief raised the Booker issue himself. The Court found that counsel had fulfilled all the requirements of Anders (and thus implicitly found that there were no meritorious issues for counsel to raise on appeal) but then remanded for resentencing stating only the following:

Mitchell challenges his sentence on the basis of United States v. Booker. . . Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for re-sentencing in accordance with Booker.

3rd Cir rejects Brady claim

In US v. Leonardo A. Pelullo, No. 02-2710 (3d Cir. 2/25/05), the Circuit reversed a district court's finding of a Brady violation concerning two sets of exculpatory documents. In a very fact intensive opinion, the Court ruled that because the first set of exculpatory material consisted of the defendant's own documents, and because defendant had access to them, the failure of the government to turn them over to the defense did not constitute "suppression" of the exculpatory material for purposes of the rule of Brady v. Maryland.

The Court ruled that the second set of exculpatory material consisted of documents in the possession of a government agency that was not part of the "prosecution team," and that therefore under Brady the government's failure to turn these document over to the defense also did not constitute "suppression." As the Court explained, "[T]he prosecution is only obligated to disclose information known to others acting on the government's behalf in a particular case."

Addressing a separate habeas challenge to the jury instructions, the Court ruled that defendant had defaulted this claim and had not established "cause" for his failure to raise it at the trial or on the direct appeal.

More 3rd Cir Booker remands

The Third Circuit is continuing to take a broad approach to remanding cases for resentencing under Booker, without the need for any express consideration of plain error or harmless error. The Circuit appears to have concluded implicitly that most sentencings that took place before Booker (and therefore under the binding guidelines) meet the test for plain error since one can never know what sentence the district court judge would have imposed under the now advisory guideline system implemented by Booker.

In each case involving a Booker remand, the Court has included some variation of the following statement: "In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker." In addition to the Ordaz and Davis decisions discussed below, the Circuit has recently remanded for resentencing in the following unpublished and not precedential cases (click on case to pull up the decision): US v. Nayef Yousef (2/22/05); US v. Arthur Able (2/24/05); US v. Edwin Marquez (2/28/05); US v. Vivian Wells (3/3/05).

US v. Able is particularly noteworthy since it does not appear to have involved any Sixth Amendment violation under Booker, and the defendant was sentenced at the top of the guideline range of 18 to 24 months. Nonetheless, the Circuit, noting that "the district court clearly treated the Sentencing Guidelines as mandatory rather than advisory," did not find that the error of applying the mandatory guideline range was harmless, but instead remanded so that the district court could determine the sentencing issues "in the first instance."

3d Cir rejects Booker challenge to prior convictions

In U.S. v. Ordaz, 2005 WL 418533 (3d Cir. Feb. 23, 2005), the Third Circuit put an end to Blakely/Booker challenges regarding prior convictions. Ordaz was convicted after trial of various drug and conspiracy offenses. Relying on Apprendi and Blakely, he challenged the district court's drug weight determination (and other enhancements) and further argued that the fact of his purported prior convictions needed to be found by a jury before the district court could use them to enhance his sentence.

In its opinion, the Third Circuit briefly discusses Booker and concludes that the "net result" of Booker "was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines for the information and use of the district courts in whom discretion has now been reinstated." Ordaz, 2005 WL 418533 at *3. Applying Booker to Ordaz's case, the Court concluded that Ordaz's challenges to drug weight, leader/organizer, use of a firearm, and obstruction of justice were "best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker." Id.

The Court then rejected Ordaz's argument that the fact of his prior convictions should have been submitted to the jury. The Court stated that it did not "gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries." Id. at *5. Nevertheless, the Court concluded that Almendarez-Torres remained binding. Accordingly, it held that the district court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, despite the fact that the sentences were based, in part, on facts found by a judge, rather than a jury.

Summaries of Post-Booker decisions

Fran Pratt, a Research and Writing Attorney in the Federal Public Defender Office in Alexandria, Virginia, has compiled a very useful summary of most of the court decisions addressing Booker in both the district courts and the circuits. Click here to pull up the pdf version.

3rd Cir issues orders regarding Booker letters

The 3rd Circuit has begun sending out orders in cases pending on direct appeal that direct counsel who wish to raise a Booker challenge to do so in a letter of 750 words or less. The order further requires that the letter "must succinctly state the factual and legal basis of the challenge. The letter may not contain argument. Cf. Fed R. App. P. 28(j). . . . Further briefing will be permitted only at the court's direction."

These letters have been sent out in cases in all different procedural postures, and thus it appears the Circuit will be using these letters as the primary means of screening cases for remand under Booker. It is not clear whether we can still expect a broad policy opinion addressing Booker and remands in the near future, but it now looks doubtful.

As to the distinction between stating the "legal basis" but not presenting "argument," it appears that the Court wants counsel simply to apply Booker to the facts of the case, and not to go into an explanation or discussion of what Booker held. In essence, the letter should state that Booker applies in this particular case because x, y, and z occurred at sentencing. The Court has read Booker and does not need argument about the reasoning in Booker.

3rd Cir's first pub'd decision on Booker

In US v. Kevin Davis (available here) the 3rd Cir has finally issued a published opinion addressing, albeit very briefly, the issue of remands under Booker. The discussion, consisting of two sentences at the very end of the opinion, is as follows:

Appellants challenge their sentences under US v. Booker, 125 S. Ct. 738 (2005). In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the District Court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.

Although the Circuit does not discuss plain error, it would appear that the issue was probably not raised at the sentencing, and that the Court is signaling that it will be taking a broad approach to remands under Booker. Evidently the Court's discussion here is so short because the Court is about to issue a broad policy opinion addressing Booker issues in full, hopefully this week.

The bulk of the opinion addresses an evidentiary issue: whether the district court erred in permitting an officer to testify as an expert in response to a hypothetical question that, in his opinion, the circumstances specified in the question "would be with possession with intent to deliver the narcotics." The circumstances specified in the question, which mirrored the facts at trial, were: 5 people in a car, 4 of them possessing guns, 1 with a gun plus 12 packets, another with a gun plus 19 packets, and a third with a gun plus 44 packets. The Circuit affirmed, holding that the officer's testimony was proper expert testimony, and since it was in response to a hypothetical question, it did not improperly state an opinion about the defendants' state of mind.

Unpub'd 3rd Cir decision remanding under Booker

As Professor Berman notes on his up-to-the-minute sentencing blog, http://sentencing.typepad.com/, the Third Circuit has finally issued an opinion, albeit an unpublished and non-precedential one, that addresses the issue of remand under Booker. The defense raised a Blakely objection to the sentence imposed through a motion for summary remand shortly after Blakely was decided, which the Court held C.A.V. pending a decision in Booker. The Court simply states,

The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769. Accordingly, Booker applies to the case before us. Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.

US v. Mortimer, (decision a) http://www.ca3.uscourts.gov/opinarch/034174np.pdf

Since this appears to have been on review for plain error, it seems likely that the Circuit has concluded it will be remanding for resentencing most if not all cases where a Blakely/Booker issue has been raised, and that it is putting the finishing touches on a soon-to-be-issued precedential opinion. I am hearing that "soon" now means next week, or the following week.

3rd Cir Ruling on Booker expected soon

We have been hearing persistent rumors that the 3rd Circuit will be issuing a broad ruling "soon" on Booker addressing which cases pending on appeal will be remanded for resentencing. Based on the Circuit's prior cases finding plain error and remanding where the incorrect guideline range was applied, e.g., Knight, 266 F.3d 203, 207 (3rd Cir. 2001), it would seem likely that the Circuit will take the broad approach that most circuits are taking and issue remands for resentencing in any case where the judge may have been inclinded to sentence lower under an advisory guideline system.
-- David McColgin, AFD Philadelphia

Exceptional Good Works of a Personal Nature Equal Downward Departure

In United States v. Cooper, 2005 WL 17968 (3d Cir. 1/5/05), the Third Circuit held that "good works," i.e., charitable contributions, though a discouraged factor under the federal sentencing guidelines, can be a valid justification for a downward departure at sentencing. Consequently, the Court affirmed a district court’s decision to downwardly depart four offense levels in a securities fraud and tax evasion case based upon defendant’s exceptional good works where defendant not only donated money to charity, but also made contributions of a personal nature, such as mentoring an underprivileged young man and aiding other young men in gaining an education. The majority opinion also addressed and applied the de novo standard of review under the PROTECT Act.

In a dissenting opinion, Judge Sloviter criticized the majority's application of the new standard of review. Judge Sloviter believed that a fair de novo review required reversal because the PROTECT Act was sought, in part, to discontinue the trend of leniency toward white collar criminals.