Follow by Email

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 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.

Monday, December 19, 2005

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.

Friday, December 02, 2005

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.