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Supervised Release - Consecutive sentences allowed upon revocation

In US v. Joseph Dees, No 05-4949 (Nov. 8, 2006), the Circuit joined with six other circuits in ruling that under 18 usc sect 3584(a), a district court may "impose consecutive terms of imprisonment upon revocation of supervised release -- even when the sentences for the underlying crimes ran concurrently."

Dees had pleaded guilty on three separate dates to three separate offenses. He was sentenced, however, for all 3 cases at the same time by one judge. The sentence was 51 months in prison and 3 years supervised release on each of three separate convictions to run concurrently. Dees served his sentence and upon release accumulated multiple violations of his release conditions. At a violation hearing, the judge revoked supervised release and imposed 24 months in prison on each of the three supervised release terms, to run consecutively, for a total of 72 months. The Circuit found that nothing in the statute precludes such consecutive sentences upon violation, even though …

Third Circuit finds unlimited "but for" theory of restitution calculation erroneous; reiterates admissibility of custom & practice testimony

On December 12, 2006, the Third Circuit ruled in United States v. Fallon, Case No. 03-4184, that awarding restitution owed under the Mandatory Victims Resolution Act ("MVRA") pursuant to a theory of unlimited "but for" causation is error requiring a new restitution hearing. The Third Circuit also held that the exclusion of testimony about industry custom and practice was error as a matter of law, but that such error was harmless in this case.

At the restitution hearing, the district court found by a preponderance that American Business Leasing ("ABL"), which had purchased microdermabraders from Mr. Fallon’s company and then leased the devices to doctors, would not have purchased the devices but for Mr. Fallon’s forgery of the FDA approval letter that Mr. Fallon provided to ABL during their negotiations. The district court consequently found that all of ABL’s losses from unpaid lease payments were caused by Mr. Fallon’s misrepresentation. It assessed res…

Another guideline sentence affirmed, more specific reasons for sentence not required

On November 28, 2006, the Third Circuit issued another precedential decision affirming a within-guideline sentence. In United States v. Lloyd, No. 05-4241, the defendant pled guilty to a drug conspiracy and faced a range of 168-210 months. The district court imposed 168 months and, after a Booker remand, imposed the same sentence. The court reaffirmed its practice of applying plain error review to an unpreserved argument that the district court failed in its procedural approach to sentencing. While counsel may have strategic reasons for not making certain objections, any hope of meaningful review on these questions requires an objection in the district court. The court found no plain error in the failure to give more specific reasons, stating that "a court can provide concrete reasons for its sentence without speaking at great length." Also, the court found no plain error in failure to give greater weight to the defendant's post-sentencing rehabilitation efforts, c…

3d Cir emphasized adherence to Gunter in finding sentence reasonable

The Third Circuit in United States v. Charles, No. 05-5326, emphasized reliance on the three-step sentencing procedure articulated in United States v. Gunter, No. 05-2592. In rejecting appellant's arguments that his sentence was unreasonable, the Court held that the district court complied with steps one and three by determining the applicable guideline range and discussing the parties' arguments regarding his background and personal circumstances. Analogizing to United States v. King, No. 05-1728, the Court determined that the record supported a maximum guideline sentence of 46 months. The Court rejected Charles's parsimony argument that the district court was required to note why a low-end guideline sentence was insufficient to meet section 3553(a)(2)'s penological goals, and his argument regarding unwarranted disparities, stating that any alleged disparities here were non-statutory and resulted from the district court's reasonable exercise of discretion after…

Letter classification of offense under § 3559(a) does not require reference to guidelines

The Third Circuit in United States v. Lovett, No. 05-4171 (3d Cir. Nov. 6, 2006), rejected the contention that under § 3559(a), the "maximum term of imprisonment authorized" is based on the maximum term of imprisonment authorized by the Guidelines, rather than the statute of conviction. Lovett received a 16-month sentence for his conviction of making a false statement to a federally licensed firearms dealer in violation of 18 U.S.C. § 922(a)(6), and, on appeal, challenged only the imposition of his three-year term of supervised release. Since his range would have been 12-18 months, he argued, he would have thus been classified as a Class E felony, for which the term of supervised release would not have exceeded one year. The Third Circuit rejected the argument, reasoning that the classification process in § 3559 requires, first, identifying the offense of conviction, then, if a letter grade has not been assigned, looking to the "maximum term of imprisonment authorized.&…

Mummert Survives Booker, but Sentences Require Minimal Explanation

The Third Circuit has carried its rule requiring remand of ambiguous departure rulings forward into the post-Booker world. The doctrine, originating in United States v. Mummert, 34 F.3d 201 (3d Cir. 1994), stemmed from the need to determine whether the appellate court had jurisdiction to hear an appeal challenging a Guidelines sentence--legal departure denials were reviewable while discretionary denials were not. Since sentencing courts must still rule on departure motions in the Third Circuit, and since reviewability of such rulings still turns on their legal or discretionary nature, Mummert continues to serve a purpose, the Court held in United States v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006).

Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the gove…

18 U.S.C. § 922(a)(3) conviction does NOT constitute "aggravated felony" for removal purposes

In Joseph v. Attorney General, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006), the Third Circuit ruled that a conviction under 18 U.S.C. § 922(a)(3), which makes it illegal for any person other than a licensed manufacturer, dealer, or collector to transport into or receive in the State where he resides any firearm purchased or otherwise obtained by such person outside that state, does not constitute an aggravated felony for removal purposes because the offense did not include any trafficking element, i.e., any element of dealing in firearms or any intent to sell or otherwise distribute the firearms.

Sentences for Class B and C misdemeanors must be reviewed under pre-Guidelines standard applicable to those offenses

Grand jury target Jelanie Solomon was convicted of criminal contempt for failing to provide handwriting exemplars ordered by the district court. He was sentenced to 5 months imprisonment on the contempt conviction, thus classifying the conviction as a Class B misdemeanor. On appeal, the parties disagreed over the standard of review to be applied. The government argued that the sentence should be reviewed for an abuse of discretion, while Solomon argued that his sentence must be reviewed for "reasonableness" under United States v. Booker, 543 U.S. 220 (2005). The Third Circuit noted that while the Guidelines were still mandatory, the circuits were divided on the standard of appellate review. In re Solomon, Nos. 06-2819, 06-2820 (3d Cir. Oct. 2, 2006). Upon present consideration, the Court found that the exclusion of Class B and C misdemeanors from the Guidelines provisions was intended to place those offenses entirely outside the statutory scheme, including the appellate revi…

Troubling credibility ruling and Harris still good law

In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury…

Win one and lose one in capital cases in Delaware

In a pair of Delaware capital habeas appeals, on September 28, 2006, the panel of Judges Rendell, Ambro and Fuentes addressed the death penalties imposed on two codefendants convicted in the 1992 murder of Wilson Mannon. Another codefendant did not appeal his death sentence and was executed in 1995. Time will tell which of these two opinions, the one granting penalty phase relief or the one denying it, has more far-reaching impact.

The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defenda…

Third Circuit Blog

Third Circuit Blog
SEARCH WARRANT VALID DESPITE FACTUAL INACCURACIES IN CHILD PORNOGRAPHY CASE. In USA v. Shields, 458 F.3d 269 (No.05-3662, Aug.16, 2006), the Third Circuit upheld defendant's conviction for possessing child pornography, finding that the affidavit that formed the basis of a search warrant, when excised of its known false statements, still supported probable cause. Shields' prosecution resulted from an undercover FBI investigation of two alleged child pornography websites. Shields was a member of both e-groups, subscribing with an email address of LittleLolitaLove@aol.com. The FBI created a template for a search warrant affidavit for use by FBI offices nationwide which contained serious factual inaccuracies, including a statement that, just by joining either of the e-groups, all members automatically received emails containing images of child pornography as they were posted on the respective sites. In reality, not all members automatically received all emails, b…

Third Circuit Blog

Third Circuit Blog
COURT UPHOLDS PROHIBITION ON PROPENSITY EVIDENCE IN REVERSE 404(B) CASES. In USA v. Williams, 458 F.3d 312 (No.05-3772, Aug.18, 2006), the Third Circuit affirmed the district court's exclusion of defense evidence and held that under Fed.R.Evid 404(b), "reverse 404(b)" evidence of other crimes or bad acts cannot be offered by a defendant if its principal reason is to show the propensity of a third party to commit a crime. Defendant was charged with felonious possession of a gun after he was apprehended in a bedroom where the gun was found under a mattress. Two other men were also arrested in the house.
The defense theory was that the gun belonged to one of the co-defendants. It moved to introduce evidence under 404(b) that the co-defendant had a prior conviction for gun possession. It argued that under USA v. Stevens, 935 F.2d 1380 (3d Cir. 1991), defendants offering evidence of a third party's bad acts have a lower threshold than when such evide…

Third Circuit Blog

Third Circuit Blog

Special Skill Enhancement Reversed. In USA v. De La Cruz, No.05-5554 (Aug.18, 2006), the Circuit reversed a 2-level enhancement for use of a special skill, USSG 3B1.3, where the defendant's "special skill" consisted of operating a 20-ft. power boat on a 50-mile trip from Puerto Rico to St. Thomas to transport cocaine. The court held that no special skill was used to pilot the boat, which the defendant borrowed from a friend. The boat had a 40 horsepower engine and contained no navigational equipment, marine radio, or nautical charts. De La Cruz had no boating license, made the trip in the daytime, and took a direct route. Based on these facts, the Court found that the trip was a straight, relatively simple trip requiring only line-of-sight navigation, with the boat never out of sight of land. It distinguished the 11th Circuit's opinion in US v. Calderon, 127 F.3d 1314 (1997), where the enhancement was warranted where the defendants piloted a 38-foo…

Third Circuit Blog

Third Circuit Blog
In USA v. Abrogar, No. 06-1215 (Aug. 18, 2006), appellant's sentence for failing to an keep accurate oil record book (required for ships by international treaty prohibiting oily waste discharges and 33 USC 1908(a)) was enhanced 6 levels because the offense "resulted in" discharges of oily waste, USSG 2Q1.3(b)(1). The Third Circuit disagreed, first observing that the offense only encompasses the failure to maintain accurate records while the ship is in US waters or at a US port. Applying a relevant conduct analysis, the Court reasoned that since no discharges occurred in US waters, they didn't occur during the commission of, in preparation for, or in the course of attempting to avoid detection for, the offense of conviction. Reversed and remanded.

3d Cir allows consideration of crack/powder disparity

In what is certainly the best circuit decision on the issue, as well as the one most faithful to Booker, the 3rd Cir ruled in US v. Johnny Gunter, No. 05-2952 (click here) that district courts may consider the 100:1 crack/powder quantity differential, on which the guidelines for cocaine are based, as a factor in deciding what sentence to impose. Along the way, the Court also clarified the correct sentencing procedure post-Booker, and made clear once again that the guideline range is truly "advisory" and not binding on the courts. This is a must-read decision for all involved in federal sentencing in the 3rd Cir.

In Gunter, the defendant was found guilty of possession with intent to distribute more than 50 grams of crack cocaine (72.5 grams to be exact) and faced a guideline range of 295-353 months. Had the 72.5 grams been cocaine powder instead, the range would have been 111-123 months, because the guidelines treat 1 gram of crack as the equivalent of 100 grams of powder for …

Third Circuit finds reversible error in exclusion of expert testimony regarding reliability of eyewitness identification

In United States v. Brownlee, Case No. 04-4134 (3d Cir. July 18, 2006), the defendant was convicted of carjacking, use of a firearm in relation to a federal crime of violence, and possession of a firearm by a convicted felon. His convictions were based primarily on eyewitness identifications and inculpatory statements that he made to a law enforcement officer prior to being informed of his Miranda rights. The Third Circuit remanded the case for a new trial, finding that the District Court erred in excluding the expert witness testimony and in admitting the inculpatory statements.

At a pretrial Daubert hearing, the District Court excluded defendant's proffered expert testimony on the reliability of show-ups in relation to other identification techniques, the peculiar suggestiveness of the show-up in this case, confidence malleability, post-event suggestiveness, and the low correlation between eyewitness confidence and eyewitness accuracy. The Third Circuit held that the science un…

Third Circuit affirms post-Booker sentence modeled on pre-Booker sentence of defendant's co-conspirator

The Third Circuit affirmed a sentence that the District Court modeled on the sentence of the defendant's co-conspirator, which was issued prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 160 L.Ed.2d. 621 (2005) and under the then-mandatory Sentencing Guidelines. In United States v. Flores, No. 05-1271 (3d Cir. July 21, 2006), the District Court imposed a sentence of 32 months imprisonment for defendant's convictions of conspiracy to commit money laundering, money laundering, and conspiracy to structure currency transactions. The sentence is 38 months less than the bottom of the District Court's calculated advisory Sentencing Guidelines range. The District Court stated that it was issuing the 32 month sentence to avoid disparities between the sentences of the defendant and his co-conspirator.

Defendant argued that by modeling his sentence on a pre-Booker sentence issued under the mandatory Sentencing Guidelines, the District Court esse…

New standard for reckless disregard of truth of law enforcement information

On August 24, 2006, the Third Circuit announced the standard by which the district courts should determine whether a government agent acted recklessly in relying on information provided by a sister government agency and including it in a search warrant affidavit. In U.S. v. Yusuf, No. 05-3484, an FBI agent presented an affidavit containing information that later proved to be inaccurate because of an error made by the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Although the district court concluded that the agent had acted in reckless disregard for the truth and excised the information from the affidavit, the Third Circuit noted the general presumption of reliability afforded information that law enforcement officers receive from each other for use in their investigations and set forth the test to be used when an affidavit is found to contain inaccurate information. In order to show that an agent has acted recklessly, the defendant must first establish that "tha…

Discovery of significance of evidence does not make it newly discovered

In U.S. v. Cimera, No. 05-2360, the court considered a claim under the "newly discovered evidence" rule that it set out in U.S. v. Ianelli, 528 F.2d 1290 (3d Cir. 1976). Cimera was convicted on fourteen counts that arose from his participation in an illegal check cashing scheme, and after his motion for judgment of acquittal was denied, he hired new counsel. Upon further investigation of the checks that were the subject of the charges, the new attorney discovered a discrepancy in the account numbers printed on the back of the checks -- they were not all deposited into the same account. Cimera moved for a new trial, arguing that this was newly discovered evidence under this circuit's formulation of the test. The problem -- these checks had been admitted into evidence at trial.

Nevertheless, the district court granted the motion, concluding that Cimera had met the five requirements for newly discovered evidence: (1) the evidence has been discovered since trial; (2) the mova…

Aggravated felony - forgery sentence less than a year qualifies where loss exceeded $10,000

Lawful permanent resident was convicted of forging a check in the amount of greater than $10,000 and sentenced to four months imprisonment. In removal proceedings, the Immigration Judge and BIA found him removable as an aggravated felon, and he appealed. The definition of aggravated felony, 18 U.S.C. § 1101(a)(43), contains two provisions that appear to be in conflict as they apply to the case. Subsection (M)(i) states that an offense "that involves fraud or deceit in which the loss to the victim exceeds $10,000" is an aggravated felony, whereas subsection (R) states that "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one year" is an aggravated felony. The alien argued that the provision relating specifically to forgery should apply to him.
The Third Circuit rejected the alien’s argument and determined that he was an aggravated felon. Bobb v. Attorney General, No. 05-2891, 2006 WL 2193065 (3d Cir. Aug. 3, 2006). While…

Room to Challenge a Prior Order of Removal/Deportation

On August 1, 2006, the Third Circuit reversed a reentry conviction, remanding with direction that the district court determine whether the alien was prejudiced by a fundamentally unfair reinstatement proceeding. United States v. Charleswell, No. 04-4513, 2006 WL 2129678 (3d Cir. Aug. 1, 2006).
Charleswell was a lawful permanent resident when he was convicted of possession of marijuana with intent to distribute, and the INS instituted deportation proceedings in 1991. Charleswell sought relief from deportation under then-available section 212(c). The Immigration Judge erroneously ruled that Charleswell was ineligible for such relief (mistakenly believing the Virgin Islands was not a U.S. territory), but Charleswell did not appeal and was deported in 1992. In 1997 he was found in Maryland and the INS issued a Notice to Reinstate the prior deportation order. Charleswell was deported in 2001 pursuant to that reinstatement. He was found in the Virgin Islands in 2002 and prosecuted for …

Broad discretion to investigate jury misconduct

On August 21, 2006, the Third Circuit held that where there is substantial evidence of jury misconduct during jury deliberations, "including credible allegations of jury nullification or of a refusal to deliberate," the judge has the discretion to conduct juror questioning or use other appropriate means to investigate.

In U.S. v. Boone, No. 03-1520, the jury sent several notes to the judge during deliberations, explaining that one of the jurors refused to deliberate because he had already made up his mind about the case before deliberations began. One of the notes also informed the judge that the juror had said "he does not believe anything the police said and thinks everyone is lying." The judge responded with a note reminding the jury of its oath to "well and truly try U.S. v. Kevin Boone . . . and render a true verdict." A final note included comments from both Juror X, the individual who had refused to deliberate, and from the foreperson, indicating th…

Third Circuit affirms above-guidelines sentence; alternative sentencing ground is harmless error

The Third Circuit affirmed another above-guidelines sentence in an appeal contending that the plea was involuntary and the sentence unreasonable. In United States v. Schweitzer, No. 05-1301 (3d Cir. July 11, 2006), the court imposed a sentence nearly twice the bottom of the advisory range, noting that the sentence reflected consideration of the factors set forth in §3553(a). At the government’s suggestion, the court amended its decision to adopt an alternative sentencing ground, as an upward departure based on the guidelines’ under-representation of Schweitzer’s criminal history and likelihood of recidivism. On review, the Third Circuit determined that Schweitzer’s plea colloquy conformed to Rule 11 and constitutional mandates. The Third Circuit also held that the alternative, posthoc rationale of the upward departure had no effect on his sentence, which would have been imposed regardless, and thus any error was harmless.

Third Circuit affirms above-range sentence but urges adherence to Hickman and Kikimura

In United States v. King, No. 05-1728 (July 11, 2006), the Third Circuit affirmed as reasonable an above-guidelines sentence despite recognizing the district court’s failure to follow the ratcheting and analogic procedures set forth in Hickman and Kikimura. At sentencing, the court denied the government’s motion for an upward departure based on non-economic harm to the victim, instead considering that factor under § 3553(a), and imposed an above-guidelines sentence on the bases of harm to the victim, King’s criminal history, and his lack of remorse.

Identifying support for the court’s sentencing decision in its discussion of relevant § 3553(a) factors, the Third Circuit nevertheless instructed the district courts to follow the requirement to "consider" the Guidelines by calculating a Guidelines sentence as they would have pre-Booker, including ruling on motions of both parties and stating on the record whether they are granting a departure and how the departure affects the Gu…

Third Circuit holds sentencing court understood its authority to consider acceptance of responsibility under §3553(a)

In United States v. Severino, No 05-3695 (3d Cir. July 11, 2006), the Third Circuit upheld a sentence within the applicable guidelines range against claims that the sentencing court failed to recognize its authority to consider unusual acceptance of responsibility as a valid sentencing factor under 18 U.S.C. §3553(a). In this case, Severino had gone so far as to compose letters to the banks and tellers he had victimized, expressing his remorse and accepting full responsibility for his actions. Though he sought a variance on his extraordinary acceptance of responsibility, the court denied this request, citing the amendments to the guidelines limiting such departures. He was sentenced to 63 months, the bottom of the advisory range. On appeal, the Third Circuit held that the district court properly understood its authority to consider extraordinary acceptance of responsibility, even if it failed to explicitly mention this factor in relation to other § 3553(a) factors, and merely exercise…

Grier decision on burden of proof at sentencing vacated and rehearing en banc ordered

As noted in an earlier blog posting, a panel of the 3rd Cir. in US v. Grier ruled on June 7th that the burden of proof on the government at sentencing regarding sentencing factors under the guidelines is by a preponderance in the post-Booker world. The court ruled that this lower standard applied even if the enhancement required finding that the defendant had committed another offense. Along the way, the panel also partially overturned the late Judge Becker's seminal decision in US v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which had ruled that facts which trigger a large increase in the offense level should be subject to a higher standard -- proof by clear and convincing evidence. Id. at 1101. The panel in Grier was split 2-1, with a vigorous and compelling dissent by Judge Sloviter.

On July 19, 2006, the 3rd Cir. granted Assistant Federal Defender Ronald Krauss' petition for rehearing en banc in Grier(click here), vacating the panel decision. The en banc argument will take pl…

Arrest warrant permits entry into dwelling if police have probable cause to believe that defendant is residing at and present in the residence

In United States v. Veal, No. 05-1612 (3d Cir. July 3, 2006), the Third Circuit held that under Payton v. New York, 445 U.S. 573, 603 (1980), an arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling if there is probable cause to believe that the suspect lives there and is located within. The Court noted that some courts have held that the police only need reasonable suspicion to believe that the suspect is residing at the location and present within to support entry into the dwelling under Payton, but the Third Circuit, under its own precedent, applied the probable cause standard.

In the case at hand, the Court cited numerous factors supporting the police's probable cause belief that Veal resided at his wife's home and was present in the residence on the day of his arrest. These factors included,among other things, the timing of the arrest, Veal's fugitive status, the presence of a car that he was known to drive outside the res…

§ 4243 commitment orders after acquittal by reason of insanity appealable

The Third Circuit, in United States v. Stewart, No. 05-2732 (3d Cir. July 3, 2006), joined a few sister circuits in holding that a commitment order rendered under 18 U.S.C. § 4243 after a defendant's acquittal by reason of insanity was appealable. The Court further noted that it would review such claims for clear error. Finally, the Court affirmed the district court's denial of release to Mr. Stewart because testimony at his commitment hearing revealed that he required supervision and Stewart could not guarantee that he would receive the appropriate supervision upon his release.

Third Circuit Blog

Third Circuit Blog
In US v. Christopher D. Jones, No. 05-3001 (June 28, 2006), the 3d Circuit reiterated the stringent record a district court must make to effectively establish a knowing, intelligent, and voluntary waiver of the fundamental 6th Amendment right to counsel. Here, the court's colloquy failed to include the "penetrating and comprehensive examination" needed to permit a defendant to proceed pro se at a criminal trial. While no scripted inquiry is required, the court must cover all subjects -- to the extent they are relevant -- enumerated in the earlier case of US v. Peppers, 302 F.3d 120 (3d Cir. 2002). These include discussion of defendant's familiarity with the law, the charges, the rules of evidence and procedure, possible defense and penalties, investigating and subpoenaing witnesses, etc. An ineffective waiver of counsel, as was found here, can never be harmless error, and the conviction was vacated and the case remanded for a new trial.

Car Stop Upheld as Based on Reasonable Suspicion

In US v. Jervis Lavern Goodrich, No. 05-3071 (June 20, 2006) (click here) the 3rd Circuit upheld a car stop under Terry v. Ohio, finding that there was reasonable suspicion for the stop based on surrounding circumstances, even though the tip which prompted the stop was vague and imprecise.

State Police received a call at about 11:20 p.m. from a known informant in Mill Hall, Pennsylvania. The informant said that two people were carrying "buckets or something" across from a farm supply company. Police knew this supply company had experienced a number of thefts of anhydrous ammonia, which can be used for making methamphetamine. The informant said the two were "over behind R&M Gas" loading the buckets into a vehicle. The tip did not describe either the people or the vehicle. State Troopers dispachted to the scene arrived about 7 minutes later and saw only one car in the area - about one or two blocks from R&M Gas. They stopped the car, and ultimately discovered …

Rule 32(h) notice required for "departures" but not "variances"

In US v. Vampire Nation (Banks), No. 05-1715 (June 20, 2006), the 3rd Circuit addressed a number of issues. First, the Court ruled that the Rule 32(h) requirement that the district court give advance notice that it is contemplating a departure from the guidelines before applying such a departure does not apply to a "variance" from the guidelines based on the sentencing factors set out in 18 USC 3553(a). Noting the circuit split on the issue, the Court ruled that Rule 32(h) was meant to apply only to traditional "departures" allowed under the guidelines themselves, and not to "variances" from the guidelines now permitted under Booker. Emphasizing the "advisory" nature of the guidelines post-Booker, the Court reasoned that application of the Rule 32(h) notice requirement to variances "would elevate the advisory sentencing range to a position of importance that it no longer can enjoy." Since the notice requirement does still apply to depa…

"Interstate Commerce" Includes U.S. Territories

In United States v. Polanco, (No. 06-1328, June 12, 2006), defendant was traveling on a commercial airline from the Dominican Republic to the Netherlands Antilles, and stopped en route in the Virgin Islands. U.S. Customs found him in possession of CD's and hard drive containing child pornography. He was charged under the Child Pornography Prevention Act of 1996, which encompasses various provisions aimed at interstate and foreign activities. Many of its provisions specifically apply to U.S. territories. However, the statutes charged, 18 U.S.C. sections 2252(a)(1)B) and 2252A(a)(1), apply by their terms only to "interstate or foreign commerce."

The defendant appealed the district court's denial of his motion to dismiss for lack of jurisdiction, but the Third Circuit affirmed. The court rejected the defense argument that by this language, which was narrower than specific language in related provisions, Congress intended not to reach U.S. territories. The court relied on…

3rd Cir rules 3553(f) - safety valve - still mandatory

In US v. Ricardo McKoy, No. 05-2461 (June 19, 2006) (click here) the 3rd Cir addressed how courts in the post-Booker world should apply the the safety valve provision, 18 usc 3553(f). This provision permits a sentence below the applicable mandatory minimum sentence under the drug trafficking laws if certain conditions are met. One of the conditions is that the defendant "not have more than 1 criminal history point, as determined under the sentencing guidelines."

Defendant had pled guilty to conspiracy to distribute more than 50 grams of crack cocaine. This amount triggers the 10 year mandatory minimum sentence under 21 usc 841(b)(1)(A), which the district court imposed over defense objection. Defendant argued that although he had 4 criminal history points, they were all for juvenile dispositions which should not count.

The Circuit affirmed, holding that the prior juvenile dispositions did count towards the criminal history points, and precluded application of the safety valve.…

No jurisdiction to expunge criminal records in absence of challenge to underlying conviction.

In United States v. Rowlands, No. 05-3425 (3d Cir. June 9, 2006), the Third Circuit affirmed the district court’s dismissal of a petition for expungement of a criminal record. The petitioner had argued that federal courts had jurisdiction over petitions to authorize the expungement of criminal records pursuant to their inherent equitable power and pursuant to the All Writs Act, 28 U.S.C. § 1651. The Third Circuit rejected the equitable basis on the ground that petitioner was not challenging the validity of the underlying criminal conviction, and rejected the statutory basis on the ground that the cases cited by the petitioner had been superceded by cases in their respective circuits.

3rd Cir rejects challenge to constitutionally of Sentg Comm

In US v. Edward Coleman (No. 05-1348 June 15, 2006) (click here to link) the 3rd Cir. rejected a challenge to the constitutionality of the Sentencing Commission as reconstituted under the PROTECT Act. The defense, following a district court opinion in US v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004), had argued that the PROTECT Act violated separation of powers by changing the structure of the Commission to allow the President to appoint all Commission members from within the Executive Branch, instead of requiring, as before the Act, that at least three members be federal judges. The Circuit ruled that regardless of the composition of the Commission, in light of US v. Booker, 543 U.S. 220 (2005), the guidelines are no longer mandatory and thus the guidelines do not control sentencing anyway: "[T]he guidelines' recommended range may be modified or disregarded by a district court upon consideration of the other sentencing factors Congress has identified in section 3553(a).&qu…

Third Circuit Rejects Beyond a Reasonable Doubt Standard in Judicial Factfinding of Sentencing Enhancements

In United States v. Grier, No. 05-1698 (3d Cir. June 6, 2006), the Third Circuit held that facts relevant to the advisory guidelines do not implicate the constitutional right to proof beyond a reasonable doubt, even when those facts constitute a separate offense. Rather, under the new advisory guidelines scheme, sentencing courts should continue to make factual findings by a preponderance of the evidence. At issue was a 4-level enhancement, pursuant to § 2K2.1(b)(5), based on the district court’s finding that the defendant had committed another felony offense (aggravated assault) in connection with the offense of conviction (unlawful possession of a firearm). The Court said that the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to trial by jury, attach only to those facts that constitute "elements" of the crime. Once those facts are established beyond a reasonable doubt, triggering a statutory maximum, judicial factfinding within the…

Third Circuit holds investigatory stop was not supported by reasonable suspicion and vacates conviction

In United States v. Brown, No. 05-1723 (3d Cir. May 22, 2006), the Third Circuit reversed the district court’s denial of Brown’s motion to suppress evidence seized during an investigatory stop due to a lack of reasonable suspicion, and vacated his conviction. Brown was approached by a police officer who told him that he matched the description of a robbery suspect, and that the victim was being brought over to identify him, after which he would be able to go free if he was not identified. The officer’s bases for approaching Brown included a radio description that included only race, age, and color of clothing, a tip by a friend of the robbery victim which was merely his observation that there were two black males at a nearby street corner, and that Brown was hailing a cab when the officer arrived. The police officer then demanded that Brown submit to a pat-down for weapons, which uncovered a gun. Although the government argued Brown was seized when he was handcuffed after his attempt …

Third Circuit lacks jurisdiction over appeal challenging extent of reduced sentence under Rule 35(b)

In United States v. McKnight, No. 05-1950 (3d Cir. May 19, 2006), the Third Circuit found that it lacked jurisdiction over an appeal challenging the extent of a Rule 35(b) sentence reduction. McKnight was originally sentenced to a 262-month term, but later received a reduction based on substantial assistance he provided to the government, reducing his sentence to 120 months. After he discovered that the government’s Rule 35(b) motion did not include mention of his brother’s assistance to authorities, McKnight filed a motion to correct his sentence, which the court rejected. The Third Circuit concluded that it lacked jurisdiction over the appeal, which it stated is "closely akin to challenging the extent of an U.S.S.G. § 5K1.1 order," and dismissed it, reasoning that it does not have jurisdiction to review a sentencing court’s discretionary decision to depart downward, nor does it have jurisdiction to consider an appeal from a § 5K1.1 order that does not allege a violation of…

Judge Becker’s Last Criminal Law Opinions -- An Appreciation

The Third Circuit Blog team invited attorney Peter Goldberger to submit a comment as "guest blogger," in remembrance of Senior Circuit Judge Edward R. Becker (1933-2006):

This Blog on May 4 covered the Court's April 24 decision in United States v Risha. (Risha discussed the problem of when Brady material in the custody of state authorities will nevertheless be deemed to be in the constructive possession of a federal prosecutor.) We had no way of knowing then that Risha would, it seems, be Judge Becker's last precedential opinion on a criminal law issue. The former Chief Judge, a towering giant among federal jurists, died of cancer on May 19. Only 73 years old, he had been a federal judge for over 35 years.

Judge Becker was no pushover for the defense position on appeal -- no judge is, after all. Yet the Honorable Edward R. Becker was the defense lawyer's dream judge. Why? Because he had an open mind, was both tremendously intelligent and enormously knowledgeable (t…

Involvement of an actual minor, as opposed to a government decoy, not a prerequisite to conviction under 18 U.S.C. § 2422(b), § 2423(b)

In United States v. Tykarsky, No. 04-4092 (3d Cir. May 10, 2006), the Third Circuit determined that, where a government agent poses as a minor online in an attempt to catch offenders who participate in "actual or attempted persuasion of a minor to engage in illicit sexual activity" (§ 2422(b)), or in "traveling for the purpose of engaging in illicit sexual activity" (§ 2423(b)), involvement of a minor is unnecessary, so long as the offender believes the victim to be underage. Consequently, the Court affirmed the defendant’s convictions, but vacated his sentence, finding an ex post facto error in application of the PROTECT Act’s prescribed mandatory minimum sentence to an offense possibly committed before enactment of the Act. The Court also ruled on a myriad of other issues.

In Tykarsky, the defendant made contact with a government decoy through internet chat rooms and instant messaging. Tykarsky engaged in explicit sexual discussions with the agent, requesting pict…

COA required to appeal denial of Rule 4(a)(6) motion in a § 2255 proceeding

Huh? Simply put, the Third Circuit, in United States v. Rinaldi, No. 04-2260 (3d Cir. May 8, 2006) rejected a habeas petitioner’s "convoluted" procedural effort to attack his sentence. After an earlier unsuccessful appeal, the petitioner, Rinaldi, filed a § 2255 habeas motion, which the district court denied on the merits. After the 3rd Cir. denied Rinaldi’s request for a certificate of appealability ("COA"), Rinaldi sought to reopen his case in the district court under FRCP 60(b). The district court denied his motion. Rinaldi then sought reconsideration under Rule 59(e), which the district court also rejected. The time to appeal the denial of his Rule 59(e) motion then expired, but Rinaldi attempted to reopen the time to file an appeal under FRAP 4(a)(6). The district court again denied Rinaldi’s request. Rinaldi appealed to the 3rd Cir.

Rinaldi argues that he does not need a COA now to appeal the district court’s Rule 4(a)(6) decision because the denial was not a …

Third Circuit rejects one variant of Booker-Ex Post Facto argument

The Third Circuit has turned away the argument that the maximum sentence for pre-Booker criminal conduct is what the Sentencing Guidelines would permit based on only admitted or jury-found facts. The defendant in United States v. Pennavaria argued that, at the time of his offense, the actual maximum punishment statutorily and constitutionally permitted was the one mandated by the Sentencing Guidelines without judicial factfinding (as confirmed in the Sixth Amendment ruling in Booker). Application of Booker's remedy holding to such conduct effectively increases that maximum punishment to the maximum set forth in the statute of conviction, in violation of Ex Post Facto and due process principles. The Third Circuit rejected this argument, reasoning that the Booker court directed application of both the Sixth Amendment and remedy rulings to pending cases and that defendants had "fair" -- although, it seems, mistaken -- warning pre-Booker that they were subject to the maxi…

When will knowledge of impeachment material in the possession of state authorities be imputed to the government for Brady purposes?

In United States v. Risha, the Third Circuit revisits the issue of when the government will be charged with constructive possession of impeachment material for Brady purposes (here, information in the hands of state authorities). After being arrested on state charges, one Frank Caito disclosed his involvement in an unrelated arson and began cooperating in a federal arson prosecution of defendant Jesse Risha. Caito's state proceeding was continued until after his federal cooperation was completed with the conviction of Risha, at which time he entered into a favorable state plea agreement and was sentenced to probation after the state judge was informed of Caito's federal cooperation.

Risha sought a new trial, claiming a Brady violation in the government's failure to disclose Caito's forthcoming state plea agreement and his expectation of leniency at sentencing on the state charges. The district court granted the motion without detailed analysis of the government's…

Interesting ruling on scope of attorney-client privilege

Today, the Third Circuit, in In Re: Grand Jury Investigation, ruled on interesting issues regarding attorney-client privilege, the work-product doctrine, and the crime-fraud exception. The case reached the Court after the government subpoenaed certain documents and testimony regarding an attorney’s advice to his client. The district court upheld the subpoena, holding that the crime-fraud exception trumped the attorney-client privilege and work-product doctrine because there was evidence that the attorney had given the client advice in furtherance of her obstruction of justice. After surrender of the documents and the testimony of the attorney before the grand jury, but before an indictment was returned, an object of the investigation, Jane Doe, appealed the district court’s ruling.

The Court first discussed issues of mootness. Because the Court could order relief (i.e., return of the subpoenaed documents, possible injunction of future use of arguably privileged grand jury testimony) to…

Supervised Release Condition Prohibiting Employment with Attorneys Upheld

Today, the Third Circuit, in United States v. Smith, has upheld a condition of supervised release that prohibited the defendant from gaining employment with an attorney or law firm. In Smith, the defendant pleaded guilty to a wire fraud offense, where Smith held himself out as a legal consultant. Smith had some prior convictions that revealed similar activities.

After release from a federal correctional institution, Smith received an offer for employment from local attorneys. Smith’s program review team rejected this opportunity. Smith petitioned the district court to allow the petition. The district court denied it. Smith then filed a motion for reconsideration and the government sought a modification of Smith’s terms of supervised release to include a condition banning Smith from any such employment. The court rejected Smith’s motion and granted the government’s. Smith appealed.

Smith first argued that the district court "lacked the authority to modify the conditions of his relea…