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Thursday, May 25, 2006

Judge Becker’s Last Criminal Law Opinions -- An Appreciation

The Third Circuit Blog team invited attorney Peter Goldberger to submit a comment as "guest blogger," in remembrance of Senior Circuit Judge Edward R. Becker (1933-2006):

This Blog on May 4 covered the Court's April 24 decision in United States v Risha. (Risha discussed the problem of when Brady material in the custody of state authorities will nevertheless be deemed to be in the constructive possession of a federal prosecutor.) We had no way of knowing then that Risha would, it seems, be Judge Becker's last precedential opinion on a criminal law issue. The former Chief Judge, a towering giant among federal jurists, died of cancer on May 19. Only 73 years old, he had been a federal judge for over 35 years.

Judge Becker was no pushover for the defense position on appeal -- no judge is, after all. Yet the Honorable Edward R. Becker was the defense lawyer's dream judge. Why? Because he had an open mind, was both tremendously intelligent and enormously knowledgeable (the old term "learned" comes to mind), and -- most important of all -- because he tried in each case to do the right thing, keeping in mind at all times that each case affects real people, and that every person matters. (We can only say "it seems" that Risha will be his final precedential decision, because the Court has already issued two posthumous Becker opinions in civil cases, finalized before but not processed for publication until after his untimely death.) As a district judge from 1970 through 1981, Becker was a pioneering advocate for procedural due process at sentencing. He emphasized the importance both of fair hearings and of articulated reasons for the sentence imposed. Once the Sentencing Reform Act and Guidelines were adopted, he was a tireless exponent of applying evidentiary rules, a heightened burden of proof, meaningful application of the parsimony principle, and enforcement of the rule of lenity in interpretation of guidelines and statutes. Most important, he always emphasized the continuing role for district court discretion under the Guidelines. Other important decisions insisted on strict proof of membership, specific intent, and agreement before convicting a defendant of conspiracy. He also authored the decision which required a cautionary instruction on the unreliability of eyewitness identification.

Risha may have been Judge Becker's last for-publication criminal opinion, but even more fascinating is the May 5 non-precedential decision in United States v Morris. Morris may present us with the great jurist's last criminal law opinion. Emblematic of his work ethic and devotion to justice for the individual, Judge Becker took the time to complete a lengthy dissent, just two weeks before his death. In the dissent, he argued that the denial of suppression should be reversed in this case because police had not satisfied one of the requirements for an inventory search -- compliance with the department's written policy. The Becker dissent shows Judge Nygaard's majority opinion to be predicated on a misreading of the police department’s own policy. It also demolishes Judge Fisher's concurrence (arguing for a "good faith" exception to the Supreme Court's requirement that police comply with their own inventory rules), in a classicly Beckerish four-paragraph-long footnote.

The majority in Morris affirms in part on grounds (inevitable discovery and search-incident-to-arrest) that the government never raised in the district court, and on which the record was inadequate and the defense did not have the opportunity to cross-examine. On these points, Judge Becker’s dissent takes the position that there should be a remand to develop those points. At least arguably, however, that was wrong. The burden of an inadequate record should have fallen on the government, as appellee, when it sought to invoke alternate grounds of affirmance it had not raised below. Steagald v United States, 451 U.S. 204, 209 (1981). Absent extraordinary circumstances, the government is not entitled to the benefit of a remand to correct deficiencies in the record of a suppression hearing, where it was not unfairly deprived of the opportunity to make its case in the first instance. Giordenello v United States, 357 U.S. 480, 488 (1958).

As Judge Becker himself liked to say, quoting the Latin poet Horace, "Homer nods." In other words, even the greatest will make mistakes sometimes. This procedural error in the dissent, if it was error, was nevertheless characteristic of several of Judge Becker's best traits: it shows how the highest value, for him, was to "get it right," and not to hold the lawyers -- even the lawyers for the government-appellee -- too strictly to a raise-it-below-or-lose-it appellate mentality.

When Judge Becker presided at oral argument, the red light meant nothing. Argument continued until all questions had been explored thoroughly. It always seemed like he had all the time in the world to try and "get it right." Alas, he did not have as much time as we would have wanted him to have, for our own sakes -- many more years of dispensing justice with an even hand, a keen intellect, and a kind heart.

Peter Goldberger, a former Assistant Federal Public Defender, clerked for Judge Becker in 1975-1976. For the last 20 years, he has maintained a national federal criminal defense appellate practice, now located in Ardmore, PA.

Friday, May 12, 2006

Involvement of an actual minor, as opposed to a government decoy, not a prerequisite to conviction under 18 U.S.C. § 2422(b), § 2423(b)

In United States v. Tykarsky, No. 04-4092 (3d Cir. May 10, 2006), the Third Circuit determined that, where a government agent poses as a minor online in an attempt to catch offenders who participate in "actual or attempted persuasion of a minor to engage in illicit sexual activity" (§ 2422(b)), or in "traveling for the purpose of engaging in illicit sexual activity" (§ 2423(b)), involvement of a minor is unnecessary, so long as the offender believes the victim to be underage. Consequently, the Court affirmed the defendant’s convictions, but vacated his sentence, finding an ex post facto error in application of the PROTECT Act’s prescribed mandatory minimum sentence to an offense possibly committed before enactment of the Act. The Court also ruled on a myriad of other issues.

In Tykarsky, the defendant made contact with a government decoy through internet chat rooms and instant messaging. Tykarsky engaged in explicit sexual discussions with the agent, requesting pictures and setting up a sexual encounter with the undercover agent, who posed as a 14-year-old girl. When the defendant arrived at the planned meeting, he was arrested. He was later convicted of violating § 2422(b) and § 2423(b).

Tykarsky argues that he cannot be convicted of either statute because no minor was involved. The Court disagreed, discussing the differences between legal and factual impossibility. Rather than decide the issue based upon these "thorny" characterizations, the Court looked to legislative intent. In doing so, the Court determined that the inclusion of an attempt provision in § 2422(b) indicated that the involvement of an actual minor, as opposed to a government decoy, was unnecessary.

The Court reached the same conclusion regarding § 2423(b), but based its decision on the plain language of the statute, noting that involvement of a minor was not an element.

Tykarsky next argued that § 2422(b) and § 2423(b) exceeded Congress’ powers under the Commerce Clause. The Court simply noted that this argument had been recently foreclosed in its decision in United States v. MacEwan, No. 05-1421 (3d Cir. Apr. 5, 2006).

The Court next rejected Tykarsky’s First, Fifth, and Eighth Amendment challenges to § 2423(b). Tykarsky argued that the statute lacked a meaningful actus reus and only punished thought while traveling interstate. The Court disagreed, noting that the statute prohibited such travel when done for a specific purpose and that criminal statutes often turn on the alleged offender’s intent.

The Court next rejected Tykarsky’s overbreadth and vagueness challenge to § 2422(b), noting that no protected First Amendment right was prohibited by the statute, and that the statute put ordinary individuals on fair notice of the prohibited conduct.

The Court also rejected Tykarsky’s Sixth Amendment grand jury challenge. He argued that the district court had impermissibly varied from the indicted offenses when charging the jury during trial. The Third Circuit disagreed, stating that the district court’s narrowing of the charges "added nothing new to the grand jury’s indictment."

The Court also rejected Tykarsky’s Sixth Amendment Confrontation Clause challenge, explaining that the district court did not abuse its discretion in limiting his cross examination of government witnesses. The Court also rejected a number of other attacks on his convictions without much discussion, before turning to Tykarsky’s challenge of his sentence.

Tykarsky argued that his sentence, mandated by the PROTECT Act, violated the ex post facto clause because the jury did not make a finding that his offense conduct actually occurred previous to the enactment of the PROTECT Act. His offense conduct, the illegal internet contact with a minor, straddled the date that the PROTECT Act was enacted, but absent a finding that the jury’s verdict was based on pre-PROTECT Act activity, the Third Circuit agreed, under plain error review, that Tykarsky’s sentence violated the ex post facto clause.

Tuesday, May 09, 2006

COA required to appeal denial of Rule 4(a)(6) motion in a § 2255 proceeding

Huh? Simply put, the Third Circuit, in United States v. Rinaldi, No. 04-2260 (3d Cir. May 8, 2006) rejected a habeas petitioner’s "convoluted" procedural effort to attack his sentence. After an earlier unsuccessful appeal, the petitioner, Rinaldi, filed a § 2255 habeas motion, which the district court denied on the merits. After the 3rd Cir. denied Rinaldi’s request for a certificate of appealability ("COA"), Rinaldi sought to reopen his case in the district court under FRCP 60(b). The district court denied his motion. Rinaldi then sought reconsideration under Rule 59(e), which the district court also rejected. The time to appeal the denial of his Rule 59(e) motion then expired, but Rinaldi attempted to reopen the time to file an appeal under FRAP 4(a)(6). The district court again denied Rinaldi’s request. Rinaldi appealed to the 3rd Cir.

Rinaldi argues that he does not need a COA now to appeal the district court’s Rule 4(a)(6) decision because the denial was not a final order under § 2253, the statute that requires a COA to appeal a § 2255 denial. The Third Circuit disagreed, stating, "we will grant a COA to challenge the denial of a Rule 4(a)(6) motion only if the § 2255 movant shows: (1) that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 4(a)(6) motion; and (2) that jurists of reason would find the district court’s assessment of the constitutional claims in the underlying order debatable or wrong."

The Court jumped straight to step 2 of this test, holding that the district court’s assessment of Rinaldi’s constitutional claims were not debatable or wrong. One of Rinaldi’s arguments was that he, as opposed to his court-appointed counsel, should have been permitted to cross examine his trial counsel at the evidentiary hearing exploring ineffective assistance of counsel.

Friday, May 05, 2006

Third Circuit rejects one variant of Booker-Ex Post Facto argument

The Third Circuit has turned away the argument that the maximum sentence for pre-Booker criminal conduct is what the Sentencing Guidelines would permit based on only admitted or jury-found facts. The defendant in United States v. Pennavaria argued that, at the time of his offense, the actual maximum punishment statutorily and constitutionally permitted was the one mandated by the Sentencing Guidelines without judicial factfinding (as confirmed in the Sixth Amendment ruling in Booker). Application of Booker's remedy holding to such conduct effectively increases that maximum punishment to the maximum set forth in the statute of conviction, in violation of Ex Post Facto and due process principles. The Third Circuit rejected this argument, reasoning that the Booker court directed application of both the Sixth Amendment and remedy rulings to pending cases and that defendants had "fair" -- although, it seems, mistaken -- warning pre-Booker that they were subject to the maximum punishment set forth in the statute of conviction based on judge-found facts.

Still alive in the Third Circuit is the related Ex Post Facto argument that punishment for pre-Booker criminal conduct is capped at the Guidelines range as determined with judicial factfinding and without any upward departure.

Thursday, May 04, 2006

When will knowledge of impeachment material in the possession of state authorities be imputed to the government for Brady purposes?

In United States v. Risha, the Third Circuit revisits the issue of when the government will be charged with constructive possession of impeachment material for Brady purposes (here, information in the hands of state authorities). After being arrested on state charges, one Frank Caito disclosed his involvement in an unrelated arson and began cooperating in a federal arson prosecution of defendant Jesse Risha. Caito's state proceeding was continued until after his federal cooperation was completed with the conviction of Risha, at which time he entered into a favorable state plea agreement and was sentenced to probation after the state judge was informed of Caito's federal cooperation.

Risha sought a new trial, claiming a Brady violation in the government's failure to disclose Caito's forthcoming state plea agreement and his expectation of leniency at sentencing on the state charges. The district court granted the motion without detailed analysis of the government's actual or constructive possession of this impeachment material.

The Third Circuit found ample evidence of constructive possession in the record, but nonetheless remanded for specific factfinding by the district court on the knowledge issue. In doing so, the Court set forth three alternative triggers for when the goverment will be charged with knowledge of Brady material in the hands of state authorities: (1) if the party with actual knowledge is acting on the government's "behalf" or under its "control;" (2) if the state and federal governments are acting as a "team," are participating in a "joint investigation," or are sharing resources; and (3) if the government has "ready access" to the material.

Judge Nygaard filed a dissent, arguing for a new "reasonableness test" for determining whether the government should be deemed to constructively possess Brady material. This test would take into account whether the government was put on notice of the existence of the material and whether it took objectively reasonable steps to discover the material once put on notice. Although this test seemingly would lead to fewer successful Brady claims, Judge Nygaard would have affirmed the new trial grant in this case (without further factfinding) because the government was clearly put on notice of Caito's state charges and his potential state-side benefit, yet did nothing to investigate the matter.