Friday, March 24, 2006

Reasonableness of sentence

In US v. Giaquinto (# 05-2212, 3/23/06), the Court applies its recent opinion in US v. Cooper, 437 F.3d 324 (3d Cir. 2006), in upholding a below-guideline sentence as "reasonable." This was a defendant's appeal in which defendant argued that her 23 month sentence, which was 7 months below the guideline range, was unreasonably high because her co-defendant, who was much more culpable, received only 30 months. The Court found that the judge considered the section 3553(a) factors and imposed a reasonable sentence.

Bank Fraud

In US v. Leahy (#03-4490) (panel decision) the 3rd Cir. provides the panel decision deciding the issues not addressed in the Court's en banc Leahy decision (which only addressed whether Booker applies to restitution and forfeiture). The Leahy panel decision is a lengthy one addressing jury instructions on bank fraud and related issues (good faith, willful blindness, intangible rights and co-schemer's liability), and affirming on these issues. The Court also affirms on the sufficiency of the evidence, but remands under Booker for resentencing and for recalculation of the loss amount.

Tuesday, March 14, 2006

Court defines scope of U.S.S.G. §2B1.1(b)(9)(C)(i) - unlawfully using a means of identification to produce another means of identification

In United States v. Newsome, Appeal No. 04-3292 (3d Cir. 3/9/06), the Third Circuit defined the scope of the U.S.S.G. §2B1.1(b)(9)(C)(i) - a two level enhancement for "the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." Newsome used the personal contact information and account information of bank customers to produce fake driver's licenses, employee identification cards, and pre-printed withdrawal slips. At sentencing, he contended that the enhancement should not apply because the new physical documentation contained the same means of identification - i.e. names, dates of birth, account numbers, etc. - as the existing means of identification used to create the new physical documentation.

The Third Circuit concluded that the enhancement could not be construed so narrowly. The new means of identification did not have to be "different," it just needed to be "additional." Accordingly, the Court ruled that when a means of identification is illegally used to produce an altered duplicate means of identification, the §2B1.1(b)(9)(C)(i) enhancement applies.

Tuesday, March 07, 2006

Customs Inspector Not Required to Give Miranda Warning to Man Suspected of Alien Smuggling

In United States v. Kiam, No. 5-1384 (3d Cir. Jan 3, 2006), the Third Circuit affirmed the district court's denial of a motion to suppress a statement given to a customs agent. The statement at issue was a second statement given after Miranda warnings were administered. The second statement was made, however, after the defendant had given an earlier confession to a customs inspector. Before that first statement, the customs inspector had not administered any Miranda warning.

The defendant, Long Tong Kiam, was convicted of alien smuggling. A citizen of Singapore, he was on the same Frankfurt to Philadelphia flight as three Chinese nationals. The Chinese nationals had presented Singaporean passports in Frankfurt, but did not have any passports with them upon arrival in Philadelphia. In previous weeks, customs agents had uncovered alien smuggling schemes whose characteristics matched those of Mr. Kiam and the Chinese Nationals. Mr. Kiam was escorted by Customs officials to, and was intereviewed by a Customs inspector in, a secondary inpsection area. Mr. Kiam was asked whether he had recently traveled to places reflected on his passport and whether he knew the three Chinese nationals. Upon being confronted with inconsistencies in his responses and the stories of the Chinese nationals, the defendant admitted illegally helping the aliens enter the country. At this point the customs inspector contacted Immigration and Customs Enforcement who sent an agent to the airport. The agent arrived, administered Miranda warnings and questioned the defendant for three hours during which the defendant gave a detailed confession identifying the scheme's mastermind.

The district court denied the defendant's motion to suppress the second statement. On the one hand, it held that the customs inspector should have given Miranda warnings during the first interrogation because he had a "particularized suspicion" that the defendant was involved in criminal conduct. On the other hand, it said any taint did not extend to the second post-Miranda confession.

The Third Circuit affirmed, disagreeing with the first conclusion, while agreeing with the second. The appeals court held that Mr. Kiam was not entitled to warnings during the first interrogation, as the inspector's questions "had a bearing on admissibility" to the country. The court declined to adopt an "across-the-board rule requiring border inspectors to immediately cut off their questioning if they think they may be going beyond what could be considered 'routine' immigration questoning." However, "Miranda may apply" when "the inspector's questions objectively cease to have a bearing on the grounds for admissibility and instead only further potential criminal prosecution." (emphasis supplied).

The appeals court next held that the second confession was admissible regardless of the determination made about the first confession. The court relied on Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004), and in particular Justice Kennedy's concurrence in Seibert (which provided the critical fifth vote in that case). The appeals court observed that, in Elstad, the Supreme Court held that if there was no coercion or improper tactics in the first questioning, a second statement would admissible if given after "a careful and thorough administration of Miranda warnings." In Seibert, Justice Kennedy held that if the first questioners made a deliberate choice to flout Miranda, then the second confession could only be admitted if curative measures were taken. By contrast, if the failure to provide Miranda warnings was inadvertent, then the second statement could be admissible under Elstad.

On appeal, Mr. Kiam did not contend that the first interrogator deliberately withheld Miranda warnings. Consequently, applying Elstad, the court of appeals saw no evidence that the first questioner engaged in coercion or improper tactics. Next, the Third Circuit said that the second questioner gave a careful and thorough administration of the Miranda warnings. Although not necessary for Mr. Kiam, the cure "mandated by Elstad was met in this case" and Mr. Kiam's waiver was knowing and voluntary. His second statement was admissible.