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 the driver was wanted for a parole violation. Police obtained a search warrant and found a 20 gallon propane tank containing anhydrous ammonia in the trunk. The district court found the stop was not a valid Terry stop, but denied suppression on the grounds of attenuation and independent source.

The Circuit affirmed but on different grounds. The Court found the stop was valid because, even though the tip was vague and imprecise, four surrounding circumstances contributed enough to constitute reasonable suspicion: First, the area was a "high crime area" because there had previously been 10-15 thefts of anhydrous ammonia from the supply company. Second, it was late at night. Third, the car was stopped within a block or two of the R&M Gas station. Fourth, there were no other occupied vehicles in the area.

The opinion is disturbing from a defense point of view because it appears to dilute the requirement of reasonable suspicion for a Terry stop. Unlike most informant tip cases, the tip here did not even provide a basis for thinking "crime was afoot." The tip only reported the innocent behavior of people loading something into a car. (And since anhydrous ammonia evaporates almost immediately and must be kept in sealed pressurized containers, the mention of "buckets" would seem to detract from reasonable suspicion.) The only basis for thinking something criminal might be happening was that there had previously been 10 to 15 thefts from a supply company across the railroad tracks, and it was near midnight. Arguably, the effect of this opinion is to abrogate any genuine requirement of "reasonable suspicion" for areas deemed by police to be "high crime areas" late at night. Hopefully, the Circuit will grant a petition to reconsider this opinion.

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 departures, however, the Court added that "district courts should be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range."

The Court also ruled that the district court had statutory authority under 28 usc 2461(c) to issue an in personam forfeiture judgment against the defendant, and that the amount of this judgment could be based on the proceeds of the mail fraud, without being limited to the amount actually in defendant's possession at time of sentencing. Addressing other issues, the Court found the evidence was sufficient, that the district court's jury instructions did not constructive amend the indictment, that the witness tampering instruction was proper, that defendant's request to represent himself was not sufficiently clear so as to trigger a full inquiry by the district court, and that there was no need for the judge to have recused himself sua sponte because of a judicial misconduct complaint defendant filed before sentencing.

"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 the general definition section (18 U.S.C. s 10), defining interstate commerce to include territories. Recognizing that "inclusio unius est exclusio alterius" is a "key canon of our interpretive arsenal," the court declined to apply that canon "when it produces a patently absurd result," namely the creation of safe havens for child pornography.

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. The Circuit first rejected the defense argument that the juvenile dispositions should not count because under New Jersey law juveniles are not sentenced, but instead subject to a "dispositional hearing." The Circuit ruled that federal law controls regarding what constitutes a "sentence" for criminal history purposes, and "prior sentences" are defined to include juvenile sentences, even if they are not called "sentences" by the state. The Circuit likewise rejected the argument that the juvenile dispositions did not count because they were "diversionary," holding that they were not diversionary because there was no deferral of prosecution. Last, the Circuit rejected the argument that the courts should treat section 3553(f) as advisory under Booker. The Circuit reasoned that while Booker rendered the guidelines advisory by striking section 3553(b)(1), the Supreme Court left the remainder of 3553 in tact, including 3553(f). In addition, the Circuit noted that "Booker is inapplicable to situations in which the judge finds only the fact of the prior conviction." Since the criminal history points did not require the court to consider the underlying circumstances of the prior juvenile sentences, but just the fact of the prior convictions, there was no violation of Booker. Because the criminal history points counted, the safety valve was inapplicable and the 10 year mandatory minimum sentence was valid.

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)."

Although the Circuit rejected the Detwiler argument in light of the now advisory guidelines, the Circuit's reasoning is particularly significant and helpful because it emphasizes that the guidelines must be treated as being truly advisory in order to avoid constitutional difficulties. Reiterating its ruling in US v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Circuit explained that there is no "presumption of reasonableness" that "attaches to the Guidelines range." The Circuit then suggested that in other circuits, such as the 7th, that have adopted a presumption of reasonableness, the Detwiler argument might still have some force.

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 permissible range does not implicate those rights. The Court also overruled United States v. Kikumura to the extent Kikumura held that sentencing enhancements that can be characterized as "a tail which wags the dog of the substantive offense" require proof by clear and convincing evidence.

Of significance is a lengthy dissent by Judge Sloviter, in which she states that by "treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance [defendant’s] sentence, the majority has abrogated the Fifth Amendment to the United States Constitution." The split on the three-judge panel signals that a petition for further review may be warranted.

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 to flee, the Third Circuit found that the seizure occurred when Brown was told by a police officer that a robbery victim was being brought over to identify him as a possible suspect. The Third Circuit held that Brown’s seizure was, further, without reasonable suspicion and therefore did not fall under the Terry exception to the warrant requirement of the Fourth Amendment.

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 18 U.S.C. § 3742(a).