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Monday, January 30, 2006

Third Circuit Affirms Mail Fraud Conspiracy Conviction in TOEFL Case

In United States v. Al-Ame, No. 04-3769 (3d Cir. Jan. 17, 2006), the Third Circuit affirmed defendant’s conviction of conspiracy to commit mail fraud, holding that defendant’s act of causing the Educational Testing Service ("ETS") to mail Test of English as a Foreign Language ("TOEFL") scores to his address was in furtherance of the conspiracy, and therefore his conduct constituted mail fraud under 18 U.S.C. § 1341. Defendant Al-Ame had paid an imposter to take the TOEFL on his behalf, who instructed ETS to mail the test results to Al-Ame’s home address. Upon receipt of the test results, Al-Ame intended to replace the photograph of the imposter with his own, and mail these results to his college.

On appeal, although Al-Ame argued that his scheme to defraud was complete at the time that the imposter took the test for him and thus the mailing of the TOEFL score to him was not in furtherance of the fraud, the Third Circuit explained that this mailing of the TOEFL score was a "critical step" in furtherance of the fraud, as were his receipt of the TOEFL score in the mail, and the mailing of the doctored score sheet containing the imposter’s score to his college. The Third Circuit also rejected Al-Ame’s second argument that ETS’s mailing of the score was routine and thus would have occurred without his fraudulent act. The Supreme Court has already rejected the notion that routine or innocent mailings are per se excluded from the scope of 18 U.S.C. § 1341. Moreover, although it is true that the mailing would have been sent regardless as required by law, he fraudulently induced ETS to mail him the TOEFL score, as there would have been no scores to mail at all had Al-Ame not hired an imposter to take the test for him. In affirming the conviction, the Court held that the conduct was mail fraud as defined in 18 U.S.C. § 1341, and therefore, the District Court had sufficient basis in finding him guilty of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.

Friday, January 13, 2006

Blakely-ized Indictment and Sentencing Interrogatories Given Thumbs Up By Circuit

In United States v. Hedgepeth, No. 04-4564 (3d Cir. January 12, 2006), the Third Circuit bestowed its approval upon a Blakely-ized indictment and special sentencing interrogatories. Subsequent to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but prior to United States v. Booker, 125 S.Ct. 738 (2005), the Government filed a third superseding indictment in Hedgepeth's case adding a Notice of Special Findings containing three sentencing factors. The district court denied Hedgepeth's motion to strike the sentencing factors as surplusage and permitted a special verdict form to be submitted to the jury that included the three sentencing factors.

On appeal, the Third Circuit first clarified the standard for striking surplusage, holding that a court may strike surplusage from an indictment or information upon a defendant's timely motion only when the surplusage is both irrelevant (or immaterial) and prejudicial. Here, because the indictment was never revealed to the jury, there could be no prejudice. Accordingly, the Court affirmed the district court's decision denying Hedgepeth's motion to strike.

With regard to the special sentencing interrogatories, the Court held that special interrogatories are appropriate in the sentencing context when they are considered by the jury after a guilty verdict has been rendered. Here, the special verdict form was structured so that the jury was first instructed to determine Hedgepeth's guilt and only then move on to consideration of the related sentencing factors. The Court concluded that the structure of the special verdict form was sufficient to alleviate any danger of prejudice and affirmed the submission of the form to the jury.

Tuesday, January 03, 2006

Felon in Possession Not a Crime of Violence under Bail Reform Act

In United States v. Bowers, No. 05-4908 (3d Cir. Dec. 27, 2005), the Third Circuit has announced that felon in possession of a firearm, 18 U.S.C. § 922(g), is not a crime of violence for purposes of bail. The Bail Reform Act, 18 U.S.C. § 3142, requires a court to hold a detention hearing upon motion by the government if the defendant is charged with a crime of violence. The statute also lists factors to be considered in deciding whether to release a defendant, including whether the charged offense is a crime of violence.

The magistrate judge held a detention hearing and ordered Mr. Bowers detained. In affirming the magistrate’s order, the district court found that a detention hearing was justified solely because it deemed felon in possession a crime of violence. It also relied primarily upon this classification in upholding the magistrate’s decision to detain Mr. Bowers.

The Third Circuit disagreed with the district court’s rulings. In determining that the possession offense was clearly nonviolent, the Court agreed with the majority of its sister circuits that had addressed the issue, comprised of the D.C., Seventh, and Eleventh Circuits. See United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir. 2001); United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999). Only one Court had disagreed. See United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). Likewise, the Third Circuit noted that its decision was consistent with its earlier decision in Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998), where the Court held that a categorical approach is appropriate for determining whether particular offenses are crimes of violence and ruled that § 922(g) is not a crime of violence under a statute with similar wording to § 3142.

The Court then listed the most persuasive reasons for classifying felon in possession as a nonviolent offense. First, the Court noted that the plain language of the statute applies to crimes that "involve[] a substantial risk" of violence. The Court then noted that the conclusion that the § 922(g) possession offense was a crime of violence was laden with "factual assumptions." Second, the Court recognized that a person’s mere status as a felon does not establish that his possession of a firearm will ultimately turn violent. Third, the Court noted that, even if a felon does use his weapon violently, that does not render his possession offense violent. Fourth, even if felon in possession is classified as nonviolent, the government may still move to detain defendants charged with the offense for other reasons. Finally, the Court took note that the Sentencing Commission had similarly deemed crimes of violence to exclude § 922(g) offenses.

Ultimately, the Third Circuit, per Judge Becker, reasonably concluded that it was "unwilling to infer that a felon will use a gun violently merely because he owns it." The Court then vacated the district court’s order and remanded for the district court to determine whether Mr. Bowers’ detention was otherwise necessary.

Evidentiary hearing ordered in 2255 proceedings alleging ineffective plea advice

Rounding out 2005, the Third Circuit has ruled that a district court abused its discretion by dismissing, without an evidentiary hearing, a Section 2255 motion alleging that trial counsel failed to inform the defendant of the possibility of entering an "open" guilty plea once plea negotiations with the government collapsed due to the defendant's refusal to cooperate against potential co-defendants. The court of appeals reiterated its "reasonably low threshold" for entitlement to an evidentiary hearing: a hearing must be held whenever the files and records of the case are inconclusive as to whether the movant is entitled to relief, accepting the movant's factual allegations as true unless clearly frivolous.

Here, the movant alleged that trial counsel knew both that the evidence of guilt was overwhelming and that movant did not want to cooperate with the government, yet never advised him of the possibility of pleading open. Applying the Strickland standard, the court of appeals found sufficient allegations of deficiency of performance and prejudice to require an evidentiary hearing. As to performance, the movant made the specific allegations discussed above and the government's response, which relied on a declaration of trial counsel, did not rebut those allegations (presumably, a hearing would still be required to assess credibility even if the declaration had non-conclusively rebutted movant's allegations). As to prejudice, an open plea to the indictment "would have likely" resulted in a three-level reduction in movant's offense level for acceptance of responsibility (the absence of which exposed movant to an additional 19-30 months' imprisonment under the Guidelines), assuming as true movant's allegation that he would have truthfully admitted the underlying conduct.

The case is United States v. Booth, No. 03-3893 (3d Cir. Dec. 29, 2005).