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Friday, September 22, 2006

Third Circuit Blog

Third Circuit Blog
SEARCH WARRANT VALID DESPITE FACTUAL INACCURACIES IN CHILD PORNOGRAPHY CASE. In USA v. Shields, 458 F.3d 269 (No.05-3662, Aug.16, 2006), the Third Circuit upheld defendant's conviction for possessing child pornography, finding that the affidavit that formed the basis of a search warrant, when excised of its known false statements, still supported probable cause. Shields' prosecution resulted from an undercover FBI investigation of two alleged child pornography websites. Shields was a member of both e-groups, subscribing with an email address of LittleLolitaLove@aol.com. The FBI created a template for a search warrant affidavit for use by FBI offices nationwide which contained serious factual inaccuracies, including a statement that, just by joining either of the e-groups, all members automatically received emails containing images of child pornography as they were posted on the respective sites. In reality, not all members automatically received all emails, but rather had to sign up for that option.
The search warrant executed against Shields contained these false statements. It also contained statements specific to Shields, verifying that the email address was his, that he was a member of both e-groups, and the dates of his membership. As a result of the search, the FBI seized Shields' computer, containing hundreds of images of child pornography, and binders and notebooks of similar images. Shields waived his Miranda rights and confessed to viewing and possessing child pornography.
Shields sought to suppress the physical and statement evidence for lack of probable cause, because of the false allegations in the affidavit. The Court found that despite the serious and reckless misrepresentations of material fact, the warrant supported probable cause without the tainted statements and was sufficient under the standard set forth in Illinois v. Gates, 462, U.S. 213 (1983).

Third Circuit Blog

Third Circuit Blog
COURT UPHOLDS PROHIBITION ON PROPENSITY EVIDENCE IN REVERSE 404(B) CASES. In USA v. Williams, 458 F.3d 312 (No.05-3772, Aug.18, 2006), the Third Circuit affirmed the district court's exclusion of defense evidence and held that under Fed.R.Evid 404(b), "reverse 404(b)" evidence of other crimes or bad acts cannot be offered by a defendant if its principal reason is to show the propensity of a third party to commit a crime. Defendant was charged with felonious possession of a gun after he was apprehended in a bedroom where the gun was found under a mattress. Two other men were also arrested in the house.
The defense theory was that the gun belonged to one of the co-defendants. It moved to introduce evidence under 404(b) that the co-defendant had a prior conviction for gun possession. It argued that under USA v. Stevens, 935 F.2d 1380 (3d Cir. 1991), defendants offering evidence of a third party's bad acts have a lower threshold than when such evidence is offered against the defendant. That case involved a bank robbery defendant who sought to introduce evidence of another robbery committed in a very similar manner in which he was not a suspect. It was offered to show identity between the two robberies, and the Third Circuit ruled the evidence admissible, finding that when evidence of other crimes of a third party is offered to show identity, a lower standard of similarity between the crimes should govern than when the evidence is offered against the defendant. In such cases of reverse 404(b) evidence, the court should allow it if its probative value is not substantially outweighed by risk of prejudice and other Rule 403 considerations.
Here, the court held that Stevens did not apply because propensity (not identity or other legitimate reason) was the only purpose for which the defense sought to introduce evidence of the co-defendant's prior conviction. The lower burden for reverse 404(b) evidence only applies when it is offered for a purpose other than propensity, and Stevens didn't change that basic mandate. The court also upheld the reasonableness of the sentence, finding that although there was no gun violence in the instant case, the district court did not abuse its discretion by making comments at sentencing about the general seriousness of gun violence and a recent shooting of a Newark police officer.

Tuesday, September 19, 2006

Third Circuit Blog

Third Circuit Blog

Special Skill Enhancement Reversed. In USA v. De La Cruz, No.05-5554 (Aug.18, 2006), the Circuit reversed a 2-level enhancement for use of a special skill, USSG 3B1.3, where the defendant's "special skill" consisted of operating a 20-ft. power boat on a 50-mile trip from Puerto Rico to St. Thomas to transport cocaine. The court held that no special skill was used to pilot the boat, which the defendant borrowed from a friend. The boat had a 40 horsepower engine and contained no navigational equipment, marine radio, or nautical charts. De La Cruz had no boating license, made the trip in the daytime, and took a direct route. Based on these facts, the Court found that the trip was a straight, relatively simple trip requiring only line-of-sight navigation, with the boat never out of sight of land. It distinguished the 11th Circuit's opinion in US v. Calderon, 127 F.3d 1314 (1997), where the enhancement was warranted where the defendants piloted a 38-foot boat on the high seas from the Bahamas to Southern Florida, traveled at night with the lights off using only charts and a compass, and took a circuitous path to avoid detection by the Coast Guard. Here, it was clear error to apply the enhancement. Reversed and remanded.

Third Circuit Blog

Third Circuit Blog
In USA v. Abrogar, No. 06-1215 (Aug. 18, 2006), appellant's sentence for failing to an keep accurate oil record book (required for ships by international treaty prohibiting oily waste discharges and 33 USC 1908(a)) was enhanced 6 levels because the offense "resulted in" discharges of oily waste, USSG 2Q1.3(b)(1). The Third Circuit disagreed, first observing that the offense only encompasses the failure to maintain accurate records while the ship is in US waters or at a US port. Applying a relevant conduct analysis, the Court reasoned that since no discharges occurred in US waters, they didn't occur during the commission of, in preparation for, or in the course of attempting to avoid detection for, the offense of conviction. Reversed and remanded.

Tuesday, September 12, 2006

3d Cir allows consideration of crack/powder disparity

In what is certainly the best circuit decision on the issue, as well as the one most faithful to Booker, the 3rd Cir ruled in US v. Johnny Gunter, No. 05-2952 (click here) that district courts may consider the 100:1 crack/powder quantity differential, on which the guidelines for cocaine are based, as a factor in deciding what sentence to impose. Along the way, the Court also clarified the correct sentencing procedure post-Booker, and made clear once again that the guideline range is truly "advisory" and not binding on the courts. This is a must-read decision for all involved in federal sentencing in the 3rd Cir.

In Gunter, the defendant was found guilty of possession with intent to distribute more than 50 grams of crack cocaine (72.5 grams to be exact) and faced a guideline range of 295-353 months. Had the 72.5 grams been cocaine powder instead, the range would have been 111-123 months, because the guidelines treat 1 gram of crack as the equivalent of 100 grams of powder for offense level purposes. Defense counsel argued for a sentence below the guideline range on the basis of this disparity, pointing out that the Sentencing Commission itself has issued several reports finding that this disparity is unwarranted and treats crack offenses too harshly. The district court rejected defense counsel's arguments on the ground that the 100:1 crack/powder ratio was a legislative determination, and that the court was therefore bound by the guidelines range based on that ratio.

The Circuit ruled that the district court erred in concluding it did not have the discretion to consider the crack/powder differential, and in treating the guideline range as mandatory. The Circuit began with a review of the Sentencing Commission's findings over the years that crack and powder are pharmacologically indistinguishable, that the 100:1 ratio results in punishing low-level crack dealers more harshly than whole-sale powder distributors, that it has a disproportionate effect on African-American defendants, and that it overstates the seriousness of crack offenses.

The Circuit then reviewed the correct sentencing procedure, noting that sentencing under the now advisory guidelines is controlled by Section 3553(a), which "begins with the broad mandate that sentencing courts "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in the statute. This reference to what has become known as the "parsimony provision" is significant since it has frequently not be mentioned at all in other opinions addressing sentencing under Booker. The Court also set out the "three-step sentencing process" that district courts should follow post-Booker:

1) Calculate the guideline range correctly;
2) Formally rule on any
departure motions and explain how those rulings affect the guideline range;
3) Exercise discretion under section 3553(a) by considering the relevant
factors listed there and imposing sentence "regardless whether it varies from
the sentence calculated under the Guidelines."
The Court thus continues to distinguish between "departures" under the guidelines provisions (step 2), and "variances" under the section 3553(a) factors (step 3).

Next, the Court neatly harmonized the decisions of other circuits to have addressed the crack/powder issue, and noted with approval the more than "two dozen district courts (hardly a 'handful') that have used their Booker discretion to refuse to apply the 100:1 crack/powder cocaine discrepancy." While making clear that district courts cannot substitute their own ratio for the 100:1 ratio, the Court explained that "no circuit court has held that a sentencing court errs in simply considering the particular form of a drug involved in the offense as one of the many individual factors in imposing a sentence."

The Circuit then ruled that "post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines -- but no demanded by 21 U.S.C. 841(b) -- as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant section 3553(a) factors)." That was the error that occurred here, and thus the Court remanded for resentencing.

The penultimate sentence of this decision merits some discussion. The Court states, "Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten." Slip op. at 28-29. Read in context, it appears that this statement is a reference to the calculation of the guideline range in step one of the sentencing process, in which the guideline range must be correctly calculated on the basis of the 100:1 ratio. The Court is referring to the ruling in US v. Pho, 433 F.3d 53 (1st Cir. 2006), in which the First Cir. held that "the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 ratio embedded in the sentencing guidelines." Id. at 64. Thus, in calculating the guideline range in step one, the district court cannot "construct[] a new sentencing range" based on a different ratio.

But at step three of the process, the district court exercises its discretion under section 3553(a) in setting the sentence "regardless whether it varies" from the guideline range. Thus at that stage the district court is free to consider what the sentence would be under a ratio (such as 20:1) that more accurately reflects the seriousness of crack in relation to powder. Indeed, consideration of the 20:1 ratio would be a good way for the district court to make its reasoning transparent, and would in effect be the sort of "analogic reasoning" that the Third Cir. has strongly encouraged district courts to use in sentencing outside of the guideline range. See US v. King, 2006 WL 1889976, *5 (3d Cir. 7/11/06) (courts sentencing outside range should look for a "suitable analogy" in other guidelines policy statements). As Gunter held, at step three, the district court is free to "consider the crack/powder cocaine differential," and this must necessarily encompass the discretion to consider what the sentence would be under a 20:1 differential, since the 100:1 differential is "simply advisory at step three." Gunter slip op. at 28.

Thus, as long as the district court does not categorically reject the 100:1 ratio in step one, it is free in step three to consider what the result of a different ratio would be as it exercises its discretion and treats the guideline range "as simply advisory."

Friday, September 01, 2006

Third Circuit finds reversible error in exclusion of expert testimony regarding reliability of eyewitness identification

In United States v. Brownlee, Case No. 04-4134 (3d Cir. July 18, 2006), the defendant was convicted of carjacking, use of a firearm in relation to a federal crime of violence, and possession of a firearm by a convicted felon. His convictions were based primarily on eyewitness identifications and inculpatory statements that he made to a law enforcement officer prior to being informed of his Miranda rights. The Third Circuit remanded the case for a new trial, finding that the District Court erred in excluding the expert witness testimony and in admitting the inculpatory statements.

At a pretrial Daubert hearing, the District Court excluded defendant's proffered expert testimony on the reliability of show-ups in relation to other identification techniques, the peculiar suggestiveness of the show-up in this case, confidence malleability, post-event suggestiveness, and the low correlation between eyewitness confidence and eyewitness accuracy. The Third Circuit held that the science underlying the type of expert testimony that defendant wanted to present on eyewitnesses is well-established. It further held that the expert testimony would have been helpful to the trier of fact and should have been admitted because the Government relied in part on the confidence of the eyewitnesses to bolster its case against defendant, and the defendant was arguing a theory of mistaken identity despite there being no "physical scientific means" by which defendant could undermine the eyewitness identifications or otherwise inform the jury that eyewitness confidence may not be correlated with accuracy. The Third Circuit then held that the erroneous exclusion of the expert testimony was not harmless, and remanded the case for a new trial in which the defendant should be permitted to present expert testimony on all of the proffered topics of expert testimony.

The Third Circuit also found reversible error in the District Court's admission of inculpatory statements made by the defendant in response to questions posed by a law enforcement officer before the defendant heard his Miranda rights. At the time he was questioned, the defendant was handcuffed and locked in the back of a police cruiser. The law enforcement officer (with whom the defendant was acquainted) asked defendant questions in a conversational manner. The answers to the questions would establish that the defendant had been driving the carjacked car, present at the scene of the crash of the car, and in possession of a firearm found at the scene of the crash. The Third Circuit found that even though the law enforcement officer may not have actively intended to elicit inculpatory statements, the defendant was subjected to custodial interrogation under these circumstances. It then held that the error was not harmless because, given the peculiar probative force of confessions, the inculpatory statements likely had a profound influence on the jury's decision.

Finally, the Third Circuit found that the District Court had not erred when it admitted eyewitness identifications that were the result of unduly suggestive show-ups. The Third Circuit found that while the eyewitnesses (1) identified the defendant while he was either handcuffed in the back of a police car or handcuffed and surrounded by police while standing next to a police car; (2) were permitted to see and hear one another identifying the defendant; and (3) were able to give only general descriptions of the suspect, there were sufficient indicia of reliability associated with the eyewitness's identifications that the admission of the identifications was not a violation of the defendant's due process rights. Rather, the flaws in the eyewitness's identifications were for the jury to consider when weighing the eyewitness testimony.

Third Circuit affirms post-Booker sentence modeled on pre-Booker sentence of defendant's co-conspirator

The Third Circuit affirmed a sentence that the District Court modeled on the sentence of the defendant's co-conspirator, which was issued prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 160 L.Ed.2d. 621 (2005) and under the then-mandatory Sentencing Guidelines. In United States v. Flores, No. 05-1271 (3d Cir. July 21, 2006), the District Court imposed a sentence of 32 months imprisonment for defendant's convictions of conspiracy to commit money laundering, money laundering, and conspiracy to structure currency transactions. The sentence is 38 months less than the bottom of the District Court's calculated advisory Sentencing Guidelines range. The District Court stated that it was issuing the 32 month sentence to avoid disparities between the sentences of the defendant and his co-conspirator.

Defendant argued that by modeling his sentence on a pre-Booker sentence issued under the mandatory Sentencing Guidelines, the District Court essentially and erroneously bound itself to the mandatory Guidelines, and that his sentence was therefore unreasonable. The Third Circuit affirmed the sentence. It found that the sentence was reasonable under Booker because the District Court (1) was aware that the co-conspirator's sentence was calculated under the mandatory Sentencing Guidelines; (2) did not consider the co-conspirator's Guidelines range binding; and (3) deliberately entered a sentence below the advisory Guidelines to "create parity with a far less culpable co-defendant."

The Third Circuit also held in this case that it did not need to reach the merits of the defendant's challenge to the District Court's calculation of his advisory Sentencing Guidelines range because the sentence issued by the District Court was within the Guidelines range that would have resulted if the District Court had calculated defendant's sentence in the manner suggested by the defendant.