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Showing posts from January, 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…

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 nev…

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…

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, th…