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Showing posts from September, 2006

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…