Friday, December 23, 2005
Third Circuit Finds Government Made Prima Facie Case That Crime-Fraud Exception To Attorney-Client Privilege Applied, Reverses Order Quashing Subpoena
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.
Monday, December 19, 2005
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.
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.
Friday, December 02, 2005
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.
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.
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.
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.
Tuesday, November 15, 2005
Capital Habeas Case: Counsel's "Agreement" to Non-Adversarial Sentencing Proceedings A Result of Failure to Prepare
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."
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.
Friday, October 14, 2005
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."
Friday, September 30, 2005
2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se
Thursday, September 29, 2005
Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement
Monday, September 19, 2005
3rd Cir. expounds on definition of “testimonial” in ruling that admission of out-of-court statement was harmless error
Friday, September 16, 2005
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.
Tuesday, September 13, 2005
Thursday, September 08, 2005
Tuesday, August 30, 2005
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.
Friday, August 19, 2005
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.
Friday, July 29, 2005
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.
Tuesday, June 21, 2005
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.
Thursday, June 16, 2005
Tuesday, May 17, 2005
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.
Saturday, April 30, 2005
[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).
Tuesday, April 26, 2005
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).
Friday, April 15, 2005
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.
Thursday, April 14, 2005
9. In exchange for the undertakings made by the government in entering this pleaUnited States v. Herman Foman, Crim. No. 03-486, "Guilty Plea Agreement" p. 8. (entered on docket for E.D. Pa. Feb. 19, 2004).
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].
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).
Wednesday, March 23, 2005
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.
Monday, March 21, 2005
Monday, March 14, 2005
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.
Thursday, March 03, 2005
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.
Wednesday, March 02, 2005
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."
Thursday, February 24, 2005
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.
Friday, February 18, 2005
Thursday, February 17, 2005
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.
Monday, February 14, 2005
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.
Friday, February 11, 2005
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.
Thursday, February 10, 2005
-- David McColgin, AFD Philadelphia
Tuesday, January 11, 2005
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.