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.