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Monday, February 27, 2006

3d Cir rejects Speedy Trial challenge

The Third Circuit recently addressed a number of issues in United States v. Willaman, No. 05-1336 (3d Cir. Feb. 17, 2006). Willaman appealed his 18 U.S.C. § 922 conviction based on, among other things, the Second Amendment and the Speedy Trial Act. The Third Circuit quickly disposed of the Second Amendment argument, relying on United States v. Rybar, 103 F.3d 273 (3d Cir. 1996).

Next, the Court addressed Willaman’s speedy trial challenge. The Court noted that the Speedy Trial Act requires that a defendant pleading not guilty be tried within 70 days of either the filing date of the indictment or "the date the defendant has appeared before a judicial officer . . ., whichever date last occurs." Willaman was indicted on May 11, 2004. He then appeared before a magistrate for a detention hearing on May 12, 2004 and pleaded not guilty at his arraignment on May 17, 2004. Based upon dictum in United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981), the Court decided that Willaman’s speedy trial clock began to run on the date of his arraignment, May 17, 2004, despite his appearance before a magistrate on May 12, 2004.

Thus, if the defendant is arrested before indictment, his pre-indictment physical appearance is sufficient to qualify as an appearance "before a judicial officer," thereby making the relevant speedy trial date the date of the indictment. However, if the defendant is indicted before he is arrested, his appearance in court is insufficient to start the clock for speedy trial purposes, unless and until he pleads not guilty to the offense.

The Court was satisfied that a distinction was justified because the Speedy Trial Act only applies to defendants that have pleaded not guilty. Therefore, a first appearance post-indictment does not qualify because the defendant has not pleaded not guilty yet. On the other hand, at a pre-indictment appearance, the defendant could not plead not guilty because he has yet to be charged. Thus, in that case, the indictment will trigger the Speedy Trial clock.

Due to the above rule, Willaman lost his speedy trial challenge because his trial, excluding the days needed to dispose of his pretrial motions, commenced 68 days after his arraignment.

Willaman also challenged both his statements to police and physical evidence under the Fourth and Fifth Amendments. The Court held that Willaman was informed twice that he was free to leave and was therefore not subject to custodial interrogation. The Court held that Willaman was not in custody during the interrogation or during his turning over physical evidence despite the interrogating officer’s conduct, including his comment that they "could do it the hard way or the easy way," and his showing Willaman a newspaper photo depicting a police raid.

Finally, the Court also rejected Willaman’s challenge of the indictment’s sufficiency. The Court held that a grand jury foreman’s failure to sign the indictment, though required by FRCP 6(c), is merely a technical deficiency, and thus does not warrant a dismissal.

Wednesday, February 15, 2006

3rd Cir., en banc, holds Booker inapplicable to forfeiture/restitution

The Third Circuit, in a very fractured en banc decision in United States v. Leahy, (3d Cir. Feb. 15, 2005), has ruled that Booker does not apply to either forfeiture or restitution. The 6-5 decision addresses both issues thoroughly and creates a number of splits among the judges, resulting in six different opinions. The issues are addressed as follows:

The Court, per Circuit Judge Fuentes, initially held that the Supreme Court’s pre-Apprendi decision in Libretti v. United States, 516 U.S. 29 (1995), still binds the circuit courts despite any erosion to the decision that has occurred since the 1995 Libretti decision. In Libretti, the defendant argued that his plea colloquy was inadequate because the district court failed to inform him of his right to a special jury verdict regarding forfeiture under former FRCP 31(e). The Supreme Court held otherwise, indicating "that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed." Id. at 49. In Leahy, the 3rd Cir. expressly noted the tension between Libretti and Booker, but decided that Libretti was still binding until the Supreme Court stated otherwise. The 3rd Cir. also ruled that Libretti similarly controlled any argument that forfeiture determinations must be made beyond a reasonable doubt.

Next, the Court turned to restitution, first addressing whether a restitution order was criminal or civil in nature. Pursuant to Pasquantino v. United States, 125 S. Ct. 1766 (2005), and United States v. Syme, 276 F.3d 131 (3d Cir. 2002), and a number of other Third Circuit and sister circuit decisions, the Court easily determined that an award of restitution under the Victim and Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA) is criminal in nature.

In assessing restitution under the Booker, the Court immediately determined that there was no Sixth Amendment distinction between the language in the VWPA or the MVRA; thus, the Court considered the two statutes together. Noting that Apprendi and its progeny explain that the Sixth Amendment requires facts that raise a defendant’s statutory maximum penalty be proven to a jury beyond a reasonable doubt or admitted, the Court then considered "whether a judge’s calculation of the sum a defendant must restore to his or her victim constitutes an increase in punishment exceeding that authorized by plea or jury verdict, in violation of the Sixth Amendment."

In answering this question, the 3rd Cir. stated that the restitution amount authorized by the governing statutes after a guilty plea or jury verdict is the "full amount of each victim’s losses." 18 U.S.C. § 3664(f)(1)(A). The defendants in Leahy pointed out that, in order for any restitution to be authorized, there must first be factual findings as to the amount of loss resulting from the defendants’ crimes. The 3rd Cir. disagreed, stating that "when the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction."

The 3rd Cir. decided that the restitution penalties here, though criminal, are different from enhanced terms of imprisonment as analyzed under the Sixth Amendment in Jones, Apprendi, Blakely, and Booker. The 3rd Cir. stated that the sentencing court can decide how much property and proceeds must be returned to victims as a result of the offense of conviction. The Court further reasoned that, although restitution penalties are criminal, they do not enhance the severity of a defendant’s punishment, as authorized by the defendant’s convictions, because restitution constitutes a return to the status quo, not an increase in sentence.

Eight different Circuit Judges combined to write six concurring and/or dissenting opinions in Leahy. Of note, Circuit Judge McKee penned a decision concurring in the judgment regarding forfeiture, but dissenting in relation to the Court’s holding on restitution. Judge McKee agreed that the 1995 Libretti decision controlled the forfeiture question, but acknowledged that the Supreme Court’s decisions since 1995, namely, Blakely and Booker, were difficult to reconcile with Libretti. McKee did not, however, agree that a sentencing court could determine the amount of restitution under either the VWPA or the MVRA consistent with the Sixth Amendment.

Judge McKee first notes the bright line rule of Apprendi and Blakely and points out that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Judge McKee further highlights that the majority, after conceding that restitution is a criminal sanction, inexplicably characterizes restitution as "not the type of criminal punishment that evokes Sixth Amendment protection" because it has "little in common with . . . prison sentences." Judge McKee asserts that this finding "sidesteps the analysis required by Blakely."

He further takes the majority to task for not answering the Blakely question at hand: "whether the verdict ‘alone’ allows the judge to impose restitution with no additional finding of fact." Judge McKee continues, "Obviously, it doesn’t." Judge McKee states that restitution is not authorized until additional findings are made regarding the amount of loss. Judge McKee finds no distinction between these findings and those that the Supreme Court found to be in violation of the Sixth Amendment in Blakely and Booker.

Judge McKee's opinion provides a much more thoughtful and thorough analysis of restitution under Sixth Amendment case law than does the majority's opinion. In addressing the majority's characterization of restitution, Judge McKee artfully describes the majority's analysis as a "pirouette," in reference to the Court's initial concession that restitution is criminal in nature, but later refusal to recognize that this determination subjects it to the Sixth Amendment, apparently due to the majority's own detection of certain civil aspects of restitution.

Tuesday, February 14, 2006

Third Circuit rules on Booker reasonableness review, jurisdiction, etc.

In United States v. Cooper, (3d Cir. Feb. 14, 2006), the Third Circuit has touched on a number of sentencing issues affecting the federal courts since the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), more than a year ago. First, the Court rejected, 2-1, the government’s assertion that the circuit court did not have jurisdiction to review post-Booker sentences imposed within the guidelines for unreasonableness. The Court affirmatively rules that it does, in fact, have jurisdiction under 18 U.S.C. § 3742(a)(1) to review for reasonableness. The Court states that an unreasonable sentence is one imposed "in violation of law," under § 3742(a)(1). The Court did not address whether a district court's imposition of a sentence "greater than necessary" under § 3553(a)'s parsimony provision is likewise imposed "in violation of law" under § 3742(a)(1). The Court also indicates that it may have such jurisdiction under 28 U.S.C. § 1291. Judge Aldisert, in dissent, asserts that the Court does not have jurisdiction to review within guideline sentences for reasonableness.

Second, the Court expressly declined to follow the lead of a number of its sister circuit courts that had ruled that a sentence imposed within the federal sentencing guidelines is presumptively reasonable. Rather, the Third Circuit notes that a within guidelines sentence only indicates that the district court considered one of the relevant § 3553(a) factors, rather than all of them. Thus, the circuit court, as directed by the Supreme Court, will continue to review sentences for reasonableness, whether it lies within or outside the applicable guidelines range. In reviewing for reasonableness, the Court demands that the record demonstrate that the district court gave meaningful consideration to the § 3553(a) factors, not just the guidelines. A "rote statement of the § 3553(a) factors should not suffice." The Court declares that it must be able to ascertain that, where properly raised, the district court not only considered the applicable § 3553(a) factors, but that it also "reasonably applied" those factors.

Note that while the Court indicates that sentencing facts under the guidelines need be proved by a preponderance of the evidence, the Court expressly withheld ruling on the standard of proof to be applied where a sentencing enhancement involves a separate crime.

Monday, February 06, 2006

Third Circuit Reverses District Court’s Order Granting § 2254 Petition for Habeas Corpus

In Satterfield v. Johnson, No. 04-3108 (3d Cir. Jan. 17, 2006), the Third Circuit held that a petition for post-conviction relief that was improperly filed under state law may not be considered "properly filed" for purposes of AEDPA’s tolling statute, § 2244(d)(2). Appeal was taken from the district court’s order granting state inmate’s habeas application under § 2254 based on counsel’s ineffective assistance. The Third Circuit deemed petitioner’s King’s Bench Petition to be improperly filed in the state court proceedings because, inter alia, he filed it with the Pennsylvania Supreme Court instead of the court in which he was convicted, contrary to Pennsylvania’s Post Conviction Relief Act ("PCRA"). Such an improperly filed petition did not toll AEDPA’s one-year statute of limitations, and thus his federal habeas petition was deemed time-barred unless equitable principles warranted tolling of the statute of limitations. In this case, where there were no allegations that the Commonwealth had misled petitioner regarding his claim, the Third Circuit determined that petitioner failed to demonstrate diligence or extraordinary circumstances justifying equitable tolling of AEDPA’s statute of limitations. Thus, the Third Circuit reversed the order granting the habeas petition and remanded for dismissal.