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Showing posts from December, 2005

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 cer…

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 …

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 sentenc…

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 D…

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, Wil…

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 reco…

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 requ…