Thursday, August 31, 2006

New standard for reckless disregard of truth of law enforcement information

On August 24, 2006, the Third Circuit announced the standard by which the district courts should determine whether a government agent acted recklessly in relying on information provided by a sister government agency and including it in a search warrant affidavit. In U.S. v. Yusuf, No. 05-3484, an FBI agent presented an affidavit containing information that later proved to be inaccurate because of an error made by the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Although the district court concluded that the agent had acted in reckless disregard for the truth and excised the information from the affidavit, the Third Circuit noted the general presumption of reliability afforded information that law enforcement officers receive from each other for use in their investigations and set forth the test to be used when an affidavit is found to contain inaccurate information. In order to show that an agent has acted recklessly, the defendant must first establish that "that the information would have put a reasonable official o notice that further investigation was required." Then, he must present evidence "(1) of a systemic failure on the agency's part to produce accurate information upon request; or (2) that the officer's particular investigation into possibly inaccurate information should have given the officer an obvious reason to doubt the accuracy of the information."

Here, the defendants operated a chain of grocery stores in the Virgin Islands and the FBI was conducting an investigation to determine whether they had been laundering money for a drug trafficker. The VIBIR provided inaccurate tax records indicating that the defendants had underreported their income on tax returns by $54 million, and the FBI relied on that information to support allegations of tax fraud in the affidavit. When more information became available, it turned out that the defendants had underreported by a little more than $7 million. However, the agent on the case did not investigate to determine whether the records were accurate, and he admitted at a Franks hearing that he should have.

Regardless, the court concluded that the agent had not acted recklessly. In assessing an agent's failure to investigate further upon receipt of questionable information, the court explained, the district court must consider "whether a reasonable agent would have been aware of a systemic failure on the [sister] agency's part to produce accurate information upon request," and whether further investigation would give an agent reason to doubt the information's accuracy. In answering the first question, the district court should look at whether the agent knows that the sister agency has a history of providing inaccurate information, and whether it has procedural safeguards in place to prevent the dissemination of inaccurate information. As for the second question, the court should consider where the information comes from and what it concerns, whether there is a "reasonably plausible explanation" for the inaccuracy, and "the quality of the agent's attempts to validate the information."

In this case, the agent reported that neither he nor any other FBI agent had ever received inaccurate information from VIBIR, and that he had repeatedly asked VIBIR for an explanation of the discrepancy in the tax records that indicated the underreporting. VIBIR produced the information in response to a court order, which dispelled any suspicion that the two agencies colluded to submit a falsified affidavit. The FBI initiated the investigation, so it could not be alleged that VIBIR provided the information to conceal bad faith or an improper motive. Finally, VIBIR's insistence that the defendants underrepresented their income provided a reasonably plausible explanation for the error in the tax records. Therefore, the agent did not act in reckless disregard of the truth.

Discovery of significance of evidence does not make it newly discovered

In U.S. v. Cimera, No. 05-2360, the court considered a claim under the "newly discovered evidence" rule that it set out in U.S. v. Ianelli, 528 F.2d 1290 (3d Cir. 1976). Cimera was convicted on fourteen counts that arose from his participation in an illegal check cashing scheme, and after his motion for judgment of acquittal was denied, he hired new counsel. Upon further investigation of the checks that were the subject of the charges, the new attorney discovered a discrepancy in the account numbers printed on the back of the checks -- they were not all deposited into the same account. Cimera moved for a new trial, arguing that this was newly discovered evidence under this circuit's formulation of the test. The problem -- these checks had been admitted into evidence at trial.

Nevertheless, the district court granted the motion, concluding that Cimera had met the five requirements for newly discovered evidence: (1) the evidence has been discovered since trial; (2) the movant alleges facts from which the court can infer diligence on his part; (3) the evidence cannot be merely cumulative or impeaching; (4) the evidence is material to the issues in the case; (5) it must be shown that the newly discovered evidence would probably produce an acquittal at a new trial.

The district court noted that the discrepancy in the account numbers was newly discovered, and found that "it frankly was the exercise of truly extraordinary diligence by [substitute defense counsel] in coming into this case that generated what really is newly discovered evidence." The evidence also fulfilled the other three requirements -- it probably would lead a jury to acquit Cimera on at least some of the counts, it was material to the issues, and it was not merely cumulative or impeaching.

On appeal, the Third Circuit disagreed. Cimera had failed to identify newly discovered evidence, and even if he had, he did not satisfy the first two prongs of the five-prong test. While the digits themselves were considered evidence, the significance or relevance of the discrepancy in the digits was not. The court noted that several other circuits have reached the same conclusion. When evidence is in the possession of the defendant before trial, the defendant's realization of the relevance of that evidence does not make it newly discovered. In addition, in this case, Cimera presented no evidence to show that he and his trial counsel were unaware of the discrepancy in the account numbers at trial. Even if he had done so, the court concluded that he could have discovered the discrepancy by exercising reasonable diligence.

Aggravated felony - forgery sentence less than a year qualifies where loss exceeded $10,000

Lawful permanent resident was convicted of forging a check in the amount of greater than $10,000 and sentenced to four months imprisonment. In removal proceedings, the Immigration Judge and BIA found him removable as an aggravated felon, and he appealed. The definition of aggravated felony, 18 U.S.C. § 1101(a)(43), contains two provisions that appear to be in conflict as they apply to the case. Subsection (M)(i) states that an offense "that involves fraud or deceit in which the loss to the victim exceeds $10,000" is an aggravated felony, whereas subsection (R) states that "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one year" is an aggravated felony. The alien argued that the provision relating specifically to forgery should apply to him.
The Third Circuit rejected the alien’s argument and determined that he was an aggravated felon. Bobb v. Attorney General, No. 05-2891, 2006 WL 2193065 (3d Cir. Aug. 3, 2006). While it found the alien’s statutory construction argument "inviting," it concluded that Congress intended that both provisions be given broad reach. Reasoning that someone can commit an offense "related to forgery" without necessarily intending to defraud or deceive, the Court concluded that giving both provisions broad reach did not render either provision surplusage. The Court also rejected the alien’s argument that his was a "hybrid" offense (which would require all requirements of both provisions to be met), because the hybrid offense analysis applies only where the specific provision (in this case forgery) is a lesser included offense of the broader category (offense involving fraud or deceit).

Room to Challenge a Prior Order of Removal/Deportation

On August 1, 2006, the Third Circuit reversed a reentry conviction, remanding with direction that the district court determine whether the alien was prejudiced by a fundamentally unfair reinstatement proceeding. United States v. Charleswell, No. 04-4513, 2006 WL 2129678 (3d Cir. Aug. 1, 2006).
Charleswell was a lawful permanent resident when he was convicted of possession of marijuana with intent to distribute, and the INS instituted deportation proceedings in 1991. Charleswell sought relief from deportation under then-available section 212(c). The Immigration Judge erroneously ruled that Charleswell was ineligible for such relief (mistakenly believing the Virgin Islands was not a U.S. territory), but Charleswell did not appeal and was deported in 1992. In 1997 he was found in Maryland and the INS issued a Notice to Reinstate the prior deportation order. Charleswell was deported in 2001 pursuant to that reinstatement. He was found in the Virgin Islands in 2002 and prosecuted for reentry, and sought to challenge the validity of his original deportation order as well as the reinstatement.
The Third Circuit recognized that, under 18 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828 (1987), a reentry defendant can collaterally challenge the validity of his prior deportation proceeding if he establishes that (1) he exhausted administrative remedies, (2) the hearing effectively eliminated the right to judicial review, and (3) the prior hearing was fundamentally unfair. Because Charleswell had failed to appeal the initial deportation order, the collateral attack was focused on the reinstatement order.
The Court agreed that Charleswell met the first element, because no administrative remedies are available to a reinstatement order. The Court’s key ruling came on the second element. The Court rejected the district court’s conclusion that judicial review was available. While an alien does have the right to appeal a reinstatement order, Charleswell did not have an attorney and he was never advised of his right to appeal the reinstatement order. Also, Charleswell had checked the reinstatement notice form indicating his desire to contest deportation. Under these circumstances, the Court concluded that Charleswell was "effectively denied an opportunity to seek judicial review." The Court directed strong language to the government suggesting that it amend its reinstatement form to reflect the right to appeal.
As to the third element, the Court held that an alien must show both that the prior proceeding suffered a fundamental defect and that the alien was thereby prejudiced. The court concluded that the INS’s failure to advise Charleswell of his right to appeal was fundamentally unfair. However, the Court remanded to the district court to determine whether Charleswell was prejudiced, i.e., "whether there is a reasonable probability that Charleswell would have obtained relief had he not been denied the opportunity for direct judicial review."

Wednesday, August 30, 2006

Broad discretion to investigate jury misconduct

On August 21, 2006, the Third Circuit held that where there is substantial evidence of jury misconduct during jury deliberations, "including credible allegations of jury nullification or of a refusal to deliberate," the judge has the discretion to conduct juror questioning or use other appropriate means to investigate.

In U.S. v. Boone, No. 03-1520, the jury sent several notes to the judge during deliberations, explaining that one of the jurors refused to deliberate because he had already made up his mind about the case before deliberations began. One of the notes also informed the judge that the juror had said "he does not believe anything the police said and thinks everyone is lying." The judge responded with a note reminding the jury of its oath to "well and truly try U.S. v. Kevin Boone . . . and render a true verdict." A final note included comments from both Juror X, the individual who had refused to deliberate, and from the foreperson, indicating that the jury had been deadlocked on several of the counts against the defendant for two days. The judge emptied the courtroom, except for the parties and his clerk, and questioned Juror X, determined that there was no misconduct and that further investigation would be unduly intrusive, and called the entire jury into the courtroom. He instructed the jury to continue deliberating until it decided that "no further discussions would be fruitful."

Boone objected to the note that ordered the jury to continue deliberating, arguing that it was unduly coercive, and that it directly threatened Juror X with perjury charges for refusing to change his mind. Rejecting that argument, the court concluded that it instructions must substantially and explicitly pressure the jury to reach a verdict or a particular result before they will be deemed coercive. This instruction, unlike instructions in other cases that the court cited, did not direct the minority jurors to change their minds (as in U.S. v. Fioravanti, 412 F.2d 407 (3d Cir. 1969)) or advise them that a new trial would lead to "great additional expense" (as the judge did in U.S. v. Burley, 460 F.2d 998 (3d Cir. 1972)).

Boone also challenged the district court's examination of Juror X, noting that in Third Circuit cases where such questioning has been approved, the allegations of misconduct arose during the trial, rather than during deliberations. While recognizing the fact that "the secrecy of deliberations is critical to the success of the jury system," and urging district court judges to exercise greater caution in conducting investigations of jury misconduct during deliberations, the court also pointed out that a refusal to deliberate violates the jury's sworn oath.

The troublesome aspect of the court's decision with regard to the examination of the juror is the court's rejection of the Second Circuit's practice of discouraging juror examination without unambiguous evidence of misconduct. It focused on the district courts' "broad discretion" in evaluating allegations of juror misconduct and its authority to determine the willingness of jurors to carry out their duties.

Finally, Boone objected to the district court's instruction to the full jury during deliberations, in which he advised the jury to continue deliberations if it felt it could reach an agreement, whether because the minority jurors changed their minds, or because the majority jurors did. The court rejected Boone's argument that it constituted an Allen instruction, which the Third Circuit has deemed reversible error except in "very extraordinary circumstances." See Fioravanti, 412 F.2d at 240. Rather than suggesting that the minority jurors held "less intelligent or reasonable views than the majority jurors," which would be reversible error, the instruction directed the jurors to continue deliberating until they reached an impasse.

Thursday, August 24, 2006

Third Circuit affirms above-guidelines sentence; alternative sentencing ground is harmless error

The Third Circuit affirmed another above-guidelines sentence in an appeal contending that the plea was involuntary and the sentence unreasonable. In United States v. Schweitzer, No. 05-1301 (3d Cir. July 11, 2006), the court imposed a sentence nearly twice the bottom of the advisory range, noting that the sentence reflected consideration of the factors set forth in §3553(a). At the government’s suggestion, the court amended its decision to adopt an alternative sentencing ground, as an upward departure based on the guidelines’ under-representation of Schweitzer’s criminal history and likelihood of recidivism. On review, the Third Circuit determined that Schweitzer’s plea colloquy conformed to Rule 11 and constitutional mandates. The Third Circuit also held that the alternative, post hoc rationale of the upward departure had no effect on his sentence, which would have been imposed regardless, and thus any error was harmless.

Wednesday, August 23, 2006

Third Circuit affirms above-range sentence but urges adherence to Hickman and Kikimura

In United States v. King, No. 05-1728 (July 11, 2006), the Third Circuit affirmed as reasonable an above-guidelines sentence despite recognizing the district court’s failure to follow the ratcheting and analogic procedures set forth in Hickman and Kikimura. At sentencing, the court denied the government’s motion for an upward departure based on non-economic harm to the victim, instead considering that factor under § 3553(a), and imposed an above-guidelines sentence on the bases of harm to the victim, King’s criminal history, and his lack of remorse.

Identifying support for the court’s sentencing decision in its discussion of relevant § 3553(a) factors, the Third Circuit nevertheless instructed the district courts to follow the requirement to "consider" the Guidelines by calculating a Guidelines sentence as they would have pre-Booker, including ruling on motions of both parties and stating on the record whether they are granting a departure and how the departure affects the Guidelines calculation; to state adequate reasons for the sentence on the record; as well as to consider this Circuit’s pre-Booker case law, which continues to have "advisory" force, specifically noting that courts must follow the procedures in Hickman and Kikimura before determining the appropriate sentence to be imposed.

Third Circuit holds sentencing court understood its authority to consider acceptance of responsibility under §3553(a)

In United States v. Severino, No 05-3695 (3d Cir. July 11, 2006), the Third Circuit upheld a sentence within the applicable guidelines range against claims that the sentencing court failed to recognize its authority to consider unusual acceptance of responsibility as a valid sentencing factor under 18 U.S.C. §3553(a). In this case, Severino had gone so far as to compose letters to the banks and tellers he had victimized, expressing his remorse and accepting full responsibility for his actions. Though he sought a variance on his extraordinary acceptance of responsibility, the court denied this request, citing the amendments to the guidelines limiting such departures. He was sentenced to 63 months, the bottom of the advisory range. On appeal, the Third Circuit held that the district court properly understood its authority to consider extraordinary acceptance of responsibility, even if it failed to explicitly mention this factor in relation to other § 3553(a) factors, and merely exercised its discretion not to reduce the sentence. Finding that the district court gave meaningful consideration to the § 3553(a) factors, the Court affirmed Severino’s sentence as reasonable under Booker.