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Showing posts from May, 2006

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…