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Showing posts from October, 2006

18 U.S.C. § 922(a)(3) conviction does NOT constitute "aggravated felony" for removal purposes

In Joseph v. Attorney General, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006), the Third Circuit ruled that a conviction under 18 U.S.C. § 922(a)(3), which makes it illegal for any person other than a licensed manufacturer, dealer, or collector to transport into or receive in the State where he resides any firearm purchased or otherwise obtained by such person outside that state, does not constitute an aggravated felony for removal purposes because the offense did not include any trafficking element, i.e., any element of dealing in firearms or any intent to sell or otherwise distribute the firearms.

Sentences for Class B and C misdemeanors must be reviewed under pre-Guidelines standard applicable to those offenses

Grand jury target Jelanie Solomon was convicted of criminal contempt for failing to provide handwriting exemplars ordered by the district court. He was sentenced to 5 months imprisonment on the contempt conviction, thus classifying the conviction as a Class B misdemeanor. On appeal, the parties disagreed over the standard of review to be applied. The government argued that the sentence should be reviewed for an abuse of discretion, while Solomon argued that his sentence must be reviewed for "reasonableness" under United States v. Booker, 543 U.S. 220 (2005). The Third Circuit noted that while the Guidelines were still mandatory, the circuits were divided on the standard of appellate review. In re Solomon, Nos. 06-2819, 06-2820 (3d Cir. Oct. 2, 2006). Upon present consideration, the Court found that the exclusion of Class B and C misdemeanors from the Guidelines provisions was intended to place those offenses entirely outside the statutory scheme, including the appellate revi…

Troubling credibility ruling and Harris still good law

In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury…

Win one and lose one in capital cases in Delaware

In a pair of Delaware capital habeas appeals, on September 28, 2006, the panel of Judges Rendell, Ambro and Fuentes addressed the death penalties imposed on two codefendants convicted in the 1992 murder of Wilson Mannon. Another codefendant did not appeal his death sentence and was executed in 1995. Time will tell which of these two opinions, the one granting penalty phase relief or the one denying it, has more far-reaching impact.

The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defenda…