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Showing posts from August, 2006

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…