Third Circuit widens circuit split on guilt-assuming hypotheticals; reaffirms breadth of Rule 404(b) in fraud cases

In affirming a mail fraud conviction, the Third Circuit has held in a 2-1 decision that guilt-assuming hypothetical questions may sometimes be asked of defense character witnesses, widening an existing circuit split on this issue. The Court also approved the admission of a substantial amount of other-bad-acts evidence to prove intent, thereby reaffirming the broad reach of Rule 404(b) in fraud cases.

The case, United States v. Kellogg, No. 05-1893, involved allegations that the owner of a water testing laboratory defrauded his customers by reporting to them that certain analyses were performed using one particular EPA methodology when, in fact, a different EPA methodology had been used. Intent to defraud was the principal issue at trial, with the defendant maintaining that any reporting errors as to the methodology used were accidental. Substantial evidence supported the defendant's claim, including a lack of motive arising from the near-identical scope and cost of the two methodologies, and evidence that this type of error could occur through computer glitches.

To prove fraudulent intent, the government presented 404(b) evidence that the defendant's certification to test drinking water had been revoked a year earlier by the Pennsylvania DEP. The decertification resulted from a series of citations for negligent laboratory practices, a small minority of which involved misrepresentations to DEP. The defendant argued that this evidence should have been excluded because the vast majority of it involved alleged negligent (as opposed to deceptive) conduct, and in any event failed the Rule 403 balancing test because it related to public drinking water, which was not at issue in the fraud prosecution.

In order to rebut the government's case of intent, the defendant offered several character witnesses who testified both as to their opinion of the defendant's truthfulness and as to his community reputation for the same. The prosecutor cross-examined at least one of these witnesses by asking him whether he would consider truthful a hypothetical person who had done what the government alleged the defendant had done. The witness promptly answered that such a person would not be truthful.

As to the Rule 404(b) evidence, the Third Circuit ruled it admissible on a theory that deceptive conduct in similar matters close in time to the alleged fraudulent conduct is admissible to prove intent. The Court did not address the defendant's argument that most of the admitted evidence involved alleged negligent, as opposed to intentional, conduct.

As to the guilt-assuming hypothetical, the Court ruled that such questions can never permissibly be asked of a reputation character witnesse (because any answer would be irrelevant), but that there is no "per se rule" prohibiting their use with opinion character witnesses. In the latter instance, the questions are probative of bias and, if properly framed as a hypothetical, do not impermissibly infringe on the presumption of innocence. In so holding, the Third Circuit sided with the D.C. Circuit, against the weight of authority from the Second, Fourth, Seventh, and Eleventh Circuits, all of which hold guilt-assuming hypotheticals improper as to both reputation and opinion character witnesses. Judge Roth disagreed with the majority in Kellogg, but concurred in the result because she deemed the error harmless.

3d Circuit reverses probationary sentences in fraud case

In United States v. Ali, (3d Cir. Nov. 27, 2007), the Third Circuit reversed probationary sentences in a fraud case, in which defendants Faridah Ali and Lakiha Spicer obtained federal money allocated to a community college to fund an adult education program. The Third Circuit held that the district court erred in its initial Guidelines calculation, that it relied on inappropriate factors for the downward departures, and that the resulting sentences were unreasonable, and thus vacated the sentences and remanded for resentencing.

The Third Circuit determined that the district court erred under step one of the sentencing process, the Guidelines calculation, because it rejected a preponderance standard for the loss calculation in favor of a reasonable doubt standard in Ali’s case and, further, failed to specify an estimate of the loss amount. The district court ultimately assessed a 15-21 month Guideline range (level 14, category I) for Ali, whereas Probation had calculated a 41-51 month range (level 22, category I). The Court also rejected the argument that the preponderance standard as applied to the sentencing calculations raised concerns under the Fifth or Sixth Amendments.

With respect to departure determinations under step two, the Third Circuit determined that the district court erred in granting downward departures on the following grounds: (1) good works and community support; (2) lack of initial intent to defraud; (3) Spicer’s minor role; and (4) the "exculpatory no" doctrine in Spicer’s case. The Court also found the district court’s analysis under step three of the sentencing process to be flawed because it was unable to meaningfully consider the recommended Guidelines range as required by § 3553(a)(4), given that its error at step one and its flawed departure analysis in step two tainted step three.

Admissibility of Co-conspirators Statements

In United States v. Weaver, No. 04-3888 (3d Cir. November 7, 2007), the Court of Appeals reversed the district court’s grant of the Defendant Weaver’s motion in limine precluding the Government from introducing a recorded telephone conversation between an alleged co-conspirator and her sister wherein the co-conspirator made statements implicating Weaver in a fraud scheme. The district court granted the motion, without having held a hearing, finding that the statements made by the co-conspirator were not in furtherance of the conspiracy and seemed to "constitute derogatory opinions having no conceivable value." The Court of Appeals rejected those conclusions and found the statements to be admissible under Federal Rule of Evidence 801(d)(2)(E).

Dolores Weaver was the director of an educational program at the Community College of Philadelphia (CCP). She was alleged to have been involved in a scheme with Faridah Ali, the assistant director of the Sister Clara Mohammed School wherein CCP made rental payments to the Sister Clara School for classes that were nonexistent. Weaver and Ali allegedly divided the money. On September 4, 2001, Ali had a conversation with her sister, Zaynah Rasool, discussing various matters involving the school including the arrangement with CCP. Ali complained about Weaver and made reference to problems with a teacher at the school and the potential of jeopardizing "what we got with the college."

The Government appealed the district court’s finding that the conversation between Ali and Rasool was inadmissable hearsay asserting that it was excepted from the definition of hearsay under Rule 801(2)(2)(E). The Court of Appeals began its analysis by first indicating that "In order for an out-of-court statement to meet the co-conspirator exception: the district court must find by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy." Slip op. at p. 6. Weaver did not contest the district court’s implied findings with regard to the first three requirements and argued that the district court was also correct in finding that the statements were not made in furtherance of the conspiracy. After a detailed review of its prior cases on this issue, the Court of Appeals indicated that Ali’s statements to Rasool served to inform her of the status of the conspiracy and therefore were in furtherance of the conspiracy. The Court noted that Ali’s statements informed Rasool that Ali was dependant on Weaver to make sure that CCP did not discover that her school was a sham site and that Weaver was requesting a 50% kickback from the rent payments. The Court further recognized, however, that the statements explaining the current status of the conspiracy would only be in furtherance of the conspiracy if Rasool was also a member of the conspiracy as the Government alleged. Since the district court did not hold an evidentiary hearing to determine whether the Government can demonstrate Rasool’s involvement in the conspiracy, the Court of Appeals remanded and indicated that if at a hearing Rasool is found by a preponderance of the evidence to be a member of the conspiracy, the statements concerning the status of the conspiracy are admissible.

The Court of Appeals also determined that Ali’s statements to Rasool cautioning Rasool not to upset a certain teacher because that teacher might report that no classes are being taught at the school are admissible whether or not Rasool is determined to be a member of the conspiracy. The Court reasoned that the purpose of Ali’s statements to that regard were for the purpose of concealing the conspiracy so that it may continue thus furthering the conspiracy.
Lastly, the Court of Appeals found that the district court was wrong in finding that the September 4 conversation was irrelevant. The Court held that Ali’s statements to Rasool confirmed the essential elements of the conspiracy and therefore were relevant under Federal Rule of Evidence 401.

Jury Instructions in Religious Tax Protestors' Case Constructively Amended Indictment

United States v. McKee, No. 05-3297 (Oct. 29, 2007), involved the prosecution of three members of the Reformed Israel of Yaweh ("RIY") religious sect, which opposes the payment of taxes to support war. Two of the defendants were owners of a small carpentry and home renovation business, and the third was the wife of one of the defendants. The Third Circuit vacated the defendants’ convictions for failing to pay employment taxes because the jury instructions constructively amended the indictment. The indictment charged the defendants with preparing, signing, and causing the filing of false employment tax returns. The instructions listed several examples of conduct sufficient to establish the charged conspiracy, including falsifying records and failing to report wages to an accountant. Although the government introduced evidence that the defendants falsified books and records and withheld information from the company’s accountant, this conduct was never charged in the indictment. Thus, the Court held, the instructions had the effect of broadening the indictment to include uncharged conduct. The Court further noted how difficult it is for a defendant to prove actual prejudice in this situation and went on to find that the government failed to rebut the presumption of prejudice arising from the constructive amendment.

The Court rejected most of the defendants’ other arguments. It held that the government established sufficient evidence on the conspiracy and tax evasion charges and rejected the defendants’ challenges to the admission of certain evidence. Notably, the Court found sufficient proof of an agreement to conspire from evidence of RIY’s anti-tax teachings, the defendants’ commitment to those teachings, and their positions within RIY. However, the Court found insufficient evidence to sustain the wife’s conviction for failing to file individual tax returns. The government claimed that this defendant, who served as the company’s bookkeeper, had a tax obligation (despite the fact that she did not receive a salary from the company) because she used the proceeds of three company checks to purchase two cars and paint her house. The Third Circuit rejected this argument and held that the government did not prove that the proceeds were intended as compensation for her bookkeeping work---they were just as likely to have been contributions of marital support or a gift from her husband. Moreover, there was no evidence that the defendant knew that the checks were intended as income.

Rule of Lenity Applied to Definition of "Antique Firearm" in Unregistered Shotgun Case

In United States v. Introcaso, __ F.3d __, 2007 WL 3104382 (filed October 25, 2007), the Court reversed the defendant’s conviction for possessing an unregistered firearm – a 19th-century shotgun that had been hanging in his living room, holding that the definition of "antique firearm" under the statute, 26 U.S.C. § 5845(g), is ambiguous and applying the rule of lenity in favor of the defendant.

The parties agreed that the shotgun was manufactured before 1898, and also agreed that its measurements met the statutory requirements for a firearm. The case turned on the language in the definition exempting firearms "using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade." The government argued that although the 18.2-millimeter shot made for guns like the defendant’s is no longer available, the gun could fire 12-gauge shotgun shells, which are currently commercially available.

The Court found that the term "for" in the phrase "for which ammunition is no longer manufactured" is susceptible to two readings: specifically designed for or able to be used in. The statutory purposes – regulation of guns to control violence and avoiding undue burdens on museums and collectors – do not favor one reading over the other. The Court rejected the analysis of a Second Circuit case, United States v. Tribunella, 749 F.2d 104, 109 (2d Cir. 1984), which concluded that it was "more likely" that Congress intended to prioritize decreasing gun violence and applied the second reading (able to be used in). In so doing, the Court discussed the rule of lenity at length, decided not to "guess" at the meaning of the statute, and held that because the ammunition specifically designed for this shotgun was no longer manufactured, it was an antique firearm and did not need to be registered.

Judge Ackerman, district judge sitting by designation, dissented on the basis that "the Second Circuit’s reasonable construction of § 5845(g) . . . comports with the statute's plain text and congressional intent."

The Court rejected the defendant’s sufficiency of the evidence challenge to a second count charging possession of unregistered destructive devices (hand grenades) because although Introcaso had been barred from going to the house where the items were discovered due to a protective order, he was the lessee of record, had occupied the house as recently as a week before, had been seen with similar devices, and his wife’s keys did not work to open the locked cabinet in which the items were stored. The Court also rejected the defendant’s challenge to the reasonableness of his 46-month sentence because the district court complied with the Gunter three-step process.

Adverse Fourth Amendment Holdings -- Frisk Justified, "Plain Feel Doctrine" Applied

In United States v. Yamba, __ F.3d __, 2007 WL 3054387 (filed October 22, 2007), the Court issued two Fourth Amendment holdings adverse to the defendant. Yamba was tried and convicted for wire fraud, based on evidence including several pieces of paper with what appeared to be credit card numbers written on them. These papers were discovered on his person during an inventory search at the police station following his arrest for possession of marijuana. He had moved to suppress the papers on two grounds: First, that the police were not justified in conducting the frisk that led to the discovery of the marijuana; and second, that the search that led to discovery of the marijuana went beyond a Terry "frisk" because the officer manipulated the bags of marijuana in Yamba’s pocket.

The Court held that the stop was justified because Yamba was sitting in a van that was parked in an odd and obstructive manner; the driver of the van was holding a pocket knife; Yamba and the other passenger made furtive gestures; there was an outstanding arrest warrant for the driver; and the police were outnumbered.

The Court also upheld the frisk under the "plain feel" doctrine approved by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). The plain feel doctrine permits an officer to slide or manipulate an object in a suspect’s pocket until the officer is able reasonably to eliminate the possibility that the object is a weapon. If, before that point, the officer develops probable cause to believe that the object is contraband, he may lawfully perform a more intrusive search and may seize any contraband discovered. Here, the Court relied on the district court’s finding that the officer reasonably suspected that the object was marijuana based on it’s "soft, spongy-like" nature and the "small buds and seeds" that he felt. It held, "While one may reasonably question the veracity of Officer Livingstone’s testimony, it was credited by the District Court. Were we the fact-finder, we may not have done the same; but we cannot say that the Court’s finding was clearly erroneous." The Court "purposely [did] not rely on the precision of Officer Livingstone’s testimony that he reached his conclusion within "a half second," noting that the more important inquiry is whether the officer "conducted anything beyond a routine frisk until after there was probable cause to search more intrusively."

Denial of Rehearing En Banc in United States v. Ricks

The Third Circuit recently denied the petition for rehearing en banc in United States v. Marc Ricks, No. 05-4833 (denial filed October 22, 2007), the recent case in which the Court vacated the sentences of two brothers because the district court, in setting their sentences, disagreed with the advisory Sentencing Guidelines regarding the crack/powder differential. Judge Ambro dissented, calling Ricks contrary to Rita and Gunter. Of course, as Judge Ambro notes, "the Supreme Court is on the cusp of deciding the very issue Ricks presents – the effect of the crack/powder cocaine differential in sentencing under a now-advisory scheme," in Kimbrough v. United States, which was argued earlier this month.

Rule 35(a)’s Time Limits on Correcting Sentencing Error Held to Be Jurisdictional

The defendant in United States v. Higgs, No. 06-3738 (filed October 4, 2007), was sentenced January 5, 2005, one week before the Supreme Court decided United States v. Booker,543 U.S. 220 (2005) , on June 12, 2005. His judgment was not entered until June 14, 2005. On that same day, rather than filing a direct appeal to the Third Circuit, the defense counsel moved for a reduction of his sentence under Rule 35(a), noting in an attached affidavit that Booker made the guidelines advisory.
Rule 35(a) provides, "Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."
On January 24, 2005, the District Court conducted a telephone conference on the motion, at which Higgs was not present. The court set forth reasons explaining why the originally imposed 156 month sentence was reasonable in light of Booker. No briefs had been filed by defense counsel, no hearing was held, and again, the defendant was not present.
In a letter dated February 3, 2005, defense counsel informed the District Court that Higgs had heard of the District Court’s denial and wanted to appeal. The District Court did not receive Higgs’ hand-written notice of appeal until months later. The Third Circuit had previously remanded this case to the District Court to determine whether counsel’s letter should be construed as a notice of appeal. The District Court granted Higgs’ motion "for leave to appeal the Court’s order denying his motion for reconsideration of sentence nunc pro tunc . . . ."
In this appeal, the Third Circuit examined the plain language of Rule 35 as well as its history and purpose and concluded that its time limits are jurisdictional . Rule 35(a) requires that any correction for "clear error" be made "[w]ithin 7 days after sentencing." Sentencing is defined as "the oral announcement of the sentence" (and not the entry of judgment). Counsel’s motion was filed on the 7th day. But the rule applies to the district court’s action.
The Advisory Committee notes explain that the authority of the district courts to correct a sentence was intended to be very narrow and to extend only to cases in which an obvious arithmetical, technical or other clear error occurred. It was not to serve as a means of collateral attack.
The Advisory Committee further noted that the "stringent time requirement" of seven days was shorter than the time for appealing the sentence to enable the defendant to file a timely appeal if he chose do so.
Thus, the District Court was without jurisdiction to enter its January 24, 2005 order. But because Higgs did not directly appeal the entry of judgment, but instead appealed the order denying his Rule 35(a) motion , the Third Circuit did not remand for resentencing. Instead, the Court vacated the district court’s January 24, 2005 order, left the judgment and sentence intact, and dismissed the appeal.
In a footnote, the Court leaves upon the question whether Higgs’ counsel’s decision to file a Rule 35 motion, rather than directly appealing Higgs’ sentence, gives rise to a valid ineffective assistance of counsel claim under 18 U.S.C. § 2255.

Police Failed To Scrupulously Honor Defendant's Fifth Amendment Right/Defendant's Silence Inadmissible As Adoptive Admission

In United States v. Lafferty, No. 06-1901 (3d Cir. September 28, 2007), the Third Circuit reversed the district court’s order denying Amy Lafferty’s suppression motion, which challenged statements that she and an alleged confederate made during a custodial interrogation.

Facts: An ATF agent contacted Lafferty and David Mitchell, her boyfriend, to arrange an interview about a burglary. Lafferty and Mitchell agreed to go to the police station. Upon arrival, the police placed Lafferty and Mitchell in different interrogation rooms for questioning. In Lafferty’s room, the ATF agent produced an ATF Waiver of Right To Remain Silent and of Right To Advice of Counsel form, and Lafferty signed both sections of the form. The agent questioned Lafferty for four hours, but she did not respond to most of the questions. When she did respond, she denied any involvement. Eventually, Lafferty asked to go home, but her interrogation continued for fifteen minutes. She agreed, however, to return within two days. Five days later, police officers arrested Lafferty on an outstanding, unrelated warrant and took Mitchell into custody.

At the police station, Lafferty and Mitchell were again placed in different interrogation rooms. Lafferty again signed both sections of the ATF form, denied involvement in the burglary and stated, "[I]f you’re going to charge me, charge me. I’m not going to sit here for four to five hours like last time." The interrogation ceased, and police officers put Lafferty into another room for two hours while Mitchell’s interrogation continued. Mitchell’s interrogation ended when he asked to speak to an attorney. The police transported Lafferty and Mitchell to the courthouse for arraignment. Mitchell, however, told the officers that they would tell the police about the burglary if they took him and Lafferty back to the police station and let them talk privately. The troopers agreed to the arrangement. Lafferty, however, remained silent and never agreed to speak with the police.

Police officers took Lafferty and Mitchell back to the police station without being arraigned, and placed them in a small room by themselves. After fifteen minutes and three police interruptions, Mitchell told the ATF agent that they were ready to talk, but that he and Lafferty wanted to speak to police together. Before questioning, police advised Lafferty and Mitchell of their Miranda rights. Mitchell retracted his request for counsel, and was asked to sign the statement of rights section of the ATF form. Lafferty did not sign the ATF form or verbally waive her right to remain silent. During questioning, Mitchell answered most of the questions and, in doing so, incriminated himself and Lafferty. Lafferty was silent for most of the interrogation, but occasionally explained or clarified Mitchell’s answers and nodded in agreement with some of Mitchell’s answers. It was not clear, however, which of Mitchell’s statements Lafferty assented to in this manner. After the interrogation, Mitchell and Lafferty left the police station without any charges being filed.

Lafferty was indicted for violating 18 U.S.C. §§ 922(u), 924(i)(1) and (2). Lafferty filed a motion to suppress statements she made in response to agent questioning during the last interrogation, and Mitchell's statements that implicated her in the burglary. The district court granted Lafferty’s motion in part, and denied it part. The court determined that Lafferty did not speak to police from the time she invoked her right to remain silent until she responded to the ATF agents' questions during the last interrogation. The court, however, concluded that she implicitly waived her Fifth Amendment privilege against self-incrimination by participating in the last interrogation, answering, clarifying or explaining Mitchell’s statements and failing to deny Mitchell’s statements that implicated her. The court also held that Lafferty had adopted Mitchell’s statements as her own pursuant to FRE 801(d)(2)(B), but ultimately determined that admitting them would violate her right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The government requested reconsideration of the ruling, and the district court agreed that the government had proven by a preponderance of the evidence that Lafferty’s silence in the face of Mitchell’s incriminating statements established her intent to adopt his statements. The court, however, cautioned that the ultimate determination as to whether Lafferty made an adoptive admission must be left to a jury using a reasonable doubt standard. In making this determination, the court concluded that if the jury determined that Mitchell’s statements were adoptive admissions of Lafferty, the Sixth Amendment right to confrontation would not be violated. Lafferty subsequently entered a conditional guilty plea, and the court sentenced her to thirty-seven months imprisonment. Lafferty appealed.

Analysis: The Third Circuit first determined that the police officers failed to scrupulously honor Lafferty's privilege against self-incrimination. The court stated that Mitchell had no authority to waive Lafferty's Fifth Amendment privilege for her, and the police should not have ignored the obvious fact that the joint interrogation would likely force Lafferty to either react to Mitchell's statements or suggest her assent to those statements by remaining silent while he incriminated her in a conspiracy.

Relying on Michigan v. Mosely, 423 U.S. 96 (1975) and its progeny, the Court reasoned that Lafferty could not be placed between such a constitutional rock and Fifth Amendment hard place unless she placed herself there by a valid Miranda waiver. The court determined that no such waiver existed, and that it could not infer, under the circumstances, that Lafferty waived the right to remain silent merely because she was willing to go into the interrogation with Mitchell. The court also stated that it was not Lafferty’s decision to go into a room to speak with Mitchell privately when they returned, and she neither asked to be interrogated with him nor agreed to the procedure. The Court found that although she apparently relented to Mitchell’s request, more was required to waive a constitutional rights under these circumstances.

After applying the factors expressed in Mosely to aid the determination of whether Lafferty's rights were scrupulously honored, the Court held that the circumstances demonstrated that the police did not scrupulously honor Lafferty's Fifth Amendment right to remain silent. The Court noted that, under Miranda, the onus was not on Lafferty, who had been steadfast in maintaining her silence, to be persistent in her demand to remain silent, but rather, on law enforcement officers to scrupulously respect her demand. The officers were not justified in proceeding as if Lafferty had knowingly and voluntarily waived the right that she had previously asserted.

The Court also determined that Lafferty’s silence and failure to deny Mitchell’s statements could not be admitted as adoptive admissions. The Court stated that the district court’s reasoning would virtually eliminate the right to remain silent because a suspect’s silence in the face of incrimination would be transformed into substantive evidence of guilt. The Court stated that it is impermissible to penalize a defendant for invoking her Fifth Amendment privilege during a custodial interrogation, and the district court’s reliance on Rule 801(d)(2)(B) was misplaced. Thus, neither Miranda, nor its progeny, limit the exclusion of a defendant’s silence during a custodial interrogation to specific procedural or tactical contexts. The Court held that a court errs in allowing the government to use a criminal defendant’s silence in the face of police interrogation. The Court did not reach the Sixth Amendment issue.

District Court's Failure to Provide Notice of Above Advisory Guideline Sentence Does Not Constitute Due Process Violation

In United States v. Ausburn, No. 06-2250 (3d Cir. September 10, 2007), the Third Circuit held that a district court’s failure to provide notice of its intention to impose a sentence above the advisory guideline range (in this case more than double the high end of the guideline range) does not violate due process. However, the Court also held that the district court’s failure to provide a sufficient statement of reasons explaining the significant upward variance rendered the sentence unreasonable. The sentence, therefore, was vacated and the matter remanded for re-sentencing.

Ausburn was a police detective who, in his capacity as such, came into contact with a fourteen year old girl whose family permitted a relationship between the two for Ausburn to act as a "role model" and "positive influence" in the girl’s life. The relationship soon turned sexual and lasted nearly two years. When Ausburn was promoted to chief of police, e-mails referring to the relationship were found in the desk at his old work station and turned over to postal inspectors. When confronted by the inspectors, Ausburn admitted having had a sexual relationship with the girl and having used e-mail and telephone communications to further that relationship. He later pled guilty to a criminal information charging a violation of 18 U.S.C. § 2422(b). At Ausburn’s request, the district court permitted the Presentence Report to be prepared prior to the change of plea hearing so the change of plea and sentencing could take place at the same time.

Using the 2002 version of the Sentencing Guidelines, the PSR recommended, and the district court adopted, an advisory guideline range of 57-71 months. Defense counsel argued that a hybrid of both the 2002 and 2004 Guidelines should have been applied resulting in a lower sentencing range. The Court of Appeals rejected that argument noting that the Guidelines manual in effect on a particular date is to be applied in its entirety. U.S.S.G. § 1B1.11(b)(2). After listening to the victim’s father and the victim’s guardian, counsel and Ausburn addressed the district court. Of particular relevance, counsel indicated that in a very recent case involving a sexual offense against a minor the very same district judge imposed a sentence of forty-seven months and that another judge on the same district court recently imposed a sentence of thirty months in a case involving filming of child pornography with motion-activated cameras. Accordingly, counsel argued that "the goal of uniform sentencing" and "apparent fairness" warranted a sentence below the advisory guideline range. The Government gave a brief response requesting a within guideline sentence. The district court sentenced Ausburn to 144 months, more than double the high end of the guideline range.

On appeal, Ausburn argued that due process required the district court to give prior notice of its intention to impose so drastic an upward variance and that the sentence was unreasonable. Addressing the due process argument, the Court of Appeals stated that: "due process in criminal sentencing requires that a defendant receive notice of, and a reasonable opportunity to comment on, (a) the alleged factual predicate for his sentence and (b) the potential punishments which may be imposed." The Court found that Ausburn was well aware of the factual predicates for his sentence through the PSR. Additionally, he received adequate notice of the potential punishments at the change of plea hearing. Furthermore, the Court indicated that after United States v. Booker, the factors that a district court must consider at sentencing, viz., those set forth in 18 U.S.C. § 3553(a), are clear. Relying on its earlier decision in United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006), the Court also rejected Ausburn’s argument that the holding in United States v. Burns, 501 U.S. 129 (1991), that under the then existing version of Fed.R.Crim.P. 32, which was later amended to incorporate the holding in Burns, a district court must give advance notice of an intention to impose an upward departure from the Guidelines, should be extended to impositions of upward variances. The Court recognized that both Burns and Vampire Nation were rule interpretation cases but held that there was no reason to vary their result in the context of Ausburn’s analogous due process claim. The Court of Appeals, did however, leave room for a due process argument in a situation where a district court would fail to give advanced notice of an upward variance where, for example, a victim or witness may allege theretofore unrevealed facts and the defendant was left unable to respond due to short notice.

Although Ausburn’s due process argument was rejected, the Court of Appeals did find that his sentence was unreasonable because the district court failed to provide sufficient reasons on the record to justify its sentence. The Court of Appeals found that the district court did not address counsel’s argument regarding two similar cases that went to sentencing before the some court shortly before Ausburn or give meaningful consideration for the need to avoid unwarranted sentencing disparities. The Court also indicated that "the farther a sentence varies from the advisory guidelines range, the more compelling the judge’s reasons must be." Since the district court did not provide a record sufficient to justify the sentence, it was vacated and the matter remanded.

United States v. Kikumura is Overruled

In United States v. Fisher, No. 06-1795 (3d Cir. September 10, 2007), a split panel of the Court of Appeals reversed its prior decision in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which held that the facts supporting a massive upward departure must be demonstrated by clear and convincing evidence rather than the lesser preponderance of the evidence standard applicable to the majority of sentencing enhancements. The Court in Fisher held that application of the reasoning in Kikumura went hand-in-hand with the mandatary nature of the guidelines and that since the guidelines were rendered merely advisory by the Supreme Court in United States v. Booker, the concerns raised in Kikumura "were put to rest." Judge Rendell filed a concurring opinion wherein she indicated that while she agreed that Fisher’s sentence should be affirmed, she also believed that due process could, in certain circumstances, require a heightened standard of proof to support a significant sentencing enhancement.

The facts in Fisher were very similar to those in Kikumura. Fisher pled guilty to one count of being a felon in possession in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on the circumstances surrounding Fisher’s arrest, the Presentence Report recommended three enhancements, viz., four levels pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing the firearm in relation to another felony (attempted robbery); six levels under § 3A1.2(c)(1) for creating a substantial risk of bodily harm by assaulting a law enforcement officer during flight from a crime and; two levels pursuant to§ 2K2.1(b)(4) because the firearm was stolen. Fisher objected to the enhancements and an evidentiary hearing was held before the district court. The arresting officer testified at the hearing that Fisher pointed the gun at him and pulled the trigger during the chase. The district court found the officer’s testimony to be credible and held that these actions constituted a felony under Delaware law and therefore applied the four level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). The district court additionally found that because Fisher intended to cause serious bodily harm to a police officer, the six level enhancement under § 3A1.2(c)(1) was also applicable. Lastly, the court found that the firearm was stolen, justifying another two level enhancement. The district court filed an opinion wherein it stated that it had found the facts supporting the two, four and six level enhancements by a preponderance of the evidence. Fisher was sentenced to 108 months of impressment.

Given that the effect of the combined enhancements raised Fisher’s advisory guideline range from 30-37 months to 108-120 months, on appeal Fisher argued that the enhancements were the "tail that wags the dog" at sentencing and under Kikumura, the facts supporting the enhancements should have been established by clear and convincing evidence. While Fisher’s appeal was pending, the Third Circuit handed down its en banc decision in United States v. Grier, 475 F.3d 556 (3d Cir. 2007), which established the burden of proof for sentencing enhancements as a preponderance of the evidence. Since the defendant’s sentence in the Grier case fell within the unenhanced guidelines, the Court of Appeals did not have an occasion to revisit Kikumura. The Court of Appeals framed the narrow issue before it as: "Does the Due Process Clause of the Fifth Amendment require a district court to find facts supporting sentencing enhancements by more than a preponderance of the evidence?" Having conducted an exhaustive review of the history of Due Process rights attached at sentencing, the Court concluded that Due Process does not require a heightened standard of proof for sentencing enchantments, even those that triple a defendant’s sentence. The Court’s reasoning was grounded in the now advisory nature of the Guidelines, noting: "The critical distinction here is the advisory nature of the guidelines under which Fisher was sentenced. A criminal defendant sentenced under a mandatory regime . . . may be entitled to additional or different process than that due a defendant sentenced under the post-Booker advisory Guidelines. After Booker and Grier II (en banc) , however, it is clear that sentencing on facts found by a preponderance of the evidence does not infringe upon a defendant’s rights, whether those rights are derived from the Guidelines or the Constitution." The Court concluded that "challenges to large enhancement’s should be viewed through the lens of Booker reasonableness rather than that of due process." Accordingly, the Court overruled Kikumura. The Court recognized that there is a split in the circuits on this issue and that both the Eighth and Ninth Circuits continue to hold that Kikumura is good law after Booker, while its reasoning was rejected by the Second, Sixth and Seventh Circuits. The Fisher Court did recognize, however, that sentences based on arbitrary or impermissible considerations implicate due process.

Pennsylvania Conviction for Simple Assault Does Not Constitute a Crime of Violence

In United States v. Otero, No. 05-3739 (3d Cir. September 12, 2007), the Court of Appeals for the Third held that a Pennsylvania conviction for simple assault [18 Pa. Cons.Stat.Ann. § 2701(a)] does not constitute a crime of violence for purposes of the 16-level enhancement contained in U.S.S.G. § 2L1.2(b)(1)(A), applicable to a defendant who was "previously deported ... after a conviction for a felony that is a crime of violence." The issue came before the Court in the context of a 2255 petition filed by Otero alleging that his counsel was ineffective for failing to object to the enhancement.

Otero pled guilty to one count of illegal re-entry into the United States by an alien previously deported following a conviction for an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The Presentence Report recommended a 16-level increase to his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on a prior Pennsylvania conviction for simple assault. Counsel did not object to the enhancement which the district court applied and sentenced Otero to 60 months of imprisonment. Otero did not file a direct appeal but rather filed a 2255 petition alleging that his counsel was ineffective for failing to object to the enhancement. The district court denied the petition. Applying the two-prong standard set forth in Strickland v. Washington, the Court of Appeals found counsel’s performance deficient and prejudicial and reversed the district court and remanded for re-sentencing.

The Court of Appeals recognized that in determining whether a conviction for simple assault as defined in Pennsylvania law constitutes a "crime of violence" for purposes of § 2L1.2(b)(1)(A), it must take a categorical approach under Taylor v. United States, 495 U.S. 595 (1990), meaning that it must look to the statute of conviction "to see whether the crimes therein described qualify as crimes of violence." While this issue was one of first impression in the context U.S.S.G. § 2L1.2, the Third Circuit previously held in Popal v. Gonzales, 416 F.3d 349 (3d Cir. 2005), that Pennsylvania simple assault was not a crime of violence under 18 U.S.C. § 16(a) (defining crime of violence) since the Pennsylvania statute requires only a mens rea of recklessness rather than indent. The Court adopted the reasoning of Popal as follows: "Although the issue in Popal was the removal of an alien for committing a crime of violence under § 16(a), its definition of ‘crime of violence’ is identical to the definition contained in § 2L1.2, that is, whether the offense ‘has as an element the use . . . of physical force against the person or property of another.’ Therefore we conclude that our holding in Popal applies to the relevant crime of violence defined under U.S.S.G. § 2L1.2."

Having determined that simple assault under Pennsylvania law is not a crime of violence supporting the 16-level enhancement, the Court turned to Otero’s ineffectiveness claim. The Court found counsel’s performance deficient in failing to object to the enhancement given that on its face the Pennsylvania simple assault statute does not require "the use of force" when "causing bodily injury." Moreover, the Court indicated that existing case law called into doubt the issue of whether simple assault qualified as a crime of violence. Lastly, the Court found prejudice to Otero in that his guideline range would have been 18 to 24 months in the absence of the enhancement.

Application of Enhancement for "Pattern of Activity" Affirmed, Finding Prior Conduct Neither Too Remote in Time nor Too Different in Kind

In United States v. Olfano, No. 06-2988 (3d Cir. Sept. 20, 2007), the panel unanimously affirmed a 188-month sentence on a conviction for receipt of child pornography by computer, rejecting Olfano’s arguments that the sentence was unreasonable because the District Court improperly included in its sentencing guideline calculation a five-level enhancement for pattern-of-activity, under U.S.S.G. § 2G2.2(b)(4) [now designated as U.S.S.G. § 2G2.2(b)(5)].

Olfano had pleaded guilty to receipt of child pornography by computer, in violation of 18 U.S.C. § 2252(a)(2). In calculating the advisory sentencing guideline range, the District Court included the five-level enhancement in U.S.S.G. § 2G2.2(b)(4) [now U.S.S.G. § 2G2.2(b)(5)], for engaging "in a pattern of activity involving the sexual abuse or exploitation of a minor." The two incidents that supported the "pattern of activity" enhancement involved sexual touching of a minor; one incident occurred 15 years earlier, the other occurred 18 years earlier. On appeal, Olfano argued that in relation to the offense to which he pleaded guilty, these prior incidents were too remote in time and too different in kind to support an enhancement for "pattern of activity."

The Court noted, first, that although the Third Circuit had never addressed the "remote in time" issue in a precedential opinion, the Circuit Courts that had addressed the issue had uniformly held that there was no time limit on prior actions that a court may consider in finding a "pattern of activity." The Court therefore held that "there is no temporal nexus necessary to establish a pattern of activity of sexual abuse or exploitation of a minor."

The Court also noted that it had never expressly addressed the "different in kind" issue that Olfano presented. But again, the Court observed that the Circuit courts that had recently interpreted § 2G2.2 "recognized that remote or unrelated instances of sexual misconduct can support a sentencing enhancement." Although the Court recognized that the prior incidents constituting a "pattern of activity" involved inappropriate touching, and did not involve a computer, or receipt of pornography, the Court concluded that they nevertheless involved "sexual abuse or exploitation of a minor," and thus fell within the ambit of § 2G2.2. Accordingly, the Court held that "because there is no similarity requirement and Olfano’s previous incidents of sexual misconduct are not so different in kind, they can be used to enhance his sentence . . . ."

Confessions Obtained During Delay in Presentment Admissible if Voluntary under Section 3501(c) / Court May Not Delegate Restitution Payment

In U.S. v. Corley, (No. 04-4716) (Aug. 31, 2007), the Third Circuit held that under §3501(c), confessions taken outside of the six-hour “safe harbor” window may only be excluded if involuntary.

Corley was arrested at approximately 8:00 in the morning. Because the arrest involved an altercation, he was taken to a hospital at 11:45 a.m. By 3:30 p.m., he was taken to FBI offices for interrogation. At 5:07 p.m., he signed a waiver of rights form and confessed to a robbery. When asked to write his confession, Corley indicated that he was tired and asked if they could finish the next day. They resumed at 10:30 the next morning and Corley signed a written statement. At 1:30 p.m. on the second day, he was brought before a federal magistrate judge. Corley later filed a motion to suppress the statements pursuant to Federal Rule of Criminal Procedure 5(a) due to unnecessary delay in presentment. The motion was denied and Corley was convicted following a jury trial. At sentencing, the district court ordered that Mr. Corley “shall make restitution and fine payments from any wages he may earn in prison in accordance with the Bureau of Prisons Inmate Financial Responsibility Program.” The Third Circuit upheld denial of the motion, but found the restitution order improper.

Section 3501 was written, in part, in response to Federal Rule of Criminal Procedure 5(a), – requiring an arrestee to be brought before a magistrate “without unnecessary delay”– and the Supreme Court’s “McNabb-Mallory” rule which requires exclusion of statements taken prior to presentment in cases of unnecessary delay. Section 3501 states that (a) confessions are admissible if voluntary and (b) the voluntariness of a confession is determined by all of the surrounding circumstances including the time elapsed between arrest and arraignment. Subsection (c) states: “a confession made . . . while such person was under arrest. . ., shall not be inadmissible solely because of delay in bringing such person before a magistrate judge. . . if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made or given by such person within six hours immediately following his arrest or other detention.”

The issue on appeal was whether, as Mr. Corley argued, the confession given outside of the (§3501(c)) six-hour window may be excluded due to unnecessary delay, regardless of any voluntariness finding. The government argued that a statement outside of the six-hour window, as any other statement, must still be involuntary to be excluded. The only difference outside of the six-hour window being that delay could then be the sole cause of involuntariness.

The Third Circuit agreed and followed its decision in Government of the Virgin Islands v. Gereau, 502 F. 2d 914 (3d Cir. 1974), which found that §3501(c) simply narrowed the meaning of “unnecessary delay” by restricting it to delays that contribute to making the statement involuntary. The majority did recognize that the (Second and Ninth Circuit) precedent upon which Gereau relied has been repudiated, “which may be a reason to revisit Gereau en banc,” and conceded, “were we writing on a clean slate,” they might have sided with the dissent.

Judge Sloviter authored the dissent, finding “irrefutable” Mr. Corley’s argument that if a confession only had to be voluntary, despite unnecessary delay in presentation, subsection (c) would be meaningless. Given the majority opinion rests on the short reasoning of Gereau and the circuit split on this issue, Judge Sloviter also suggested the case was appropriate for en banc review.

Finally, the Circuit found that the district court impermissibly delegated to the BOP its duty under the MVRA, (18 U.S.C. §3664(f)), to set out the manner and schedule of restitution payments and remanded for the district court to set a restitution schedule.

Kemp Convictions for Honest Services Fraud Upheld - Court Did Not Abuse Discretion in Dismissing Juror

In US v. Kemp, (Nos. 05-3477/05-3561/05-4623/05-4717/05-4846) (August 27, 2007), the Third Circuit affirmed the convictions of all defendants, finding (1) sufficient evidence to support conviction for honest services fraud; (2) jury instructions on honest services fraud, bribery and aiding and abetting were proper; (3) a variance between conspiracy charge in the indictment and government’s case at trail did not substantially prejudice defendants; (4) other act evidence and co-conspirator statements were properly admitted; and (5) district court acted within its discretion in dismissing juror.

Kemp, (former Treasurer of Philadelphia) and others were charged in a 63 count indictment surrounding a charged conspiracy to commit honest services fraud in which payments and gifts were given to Kemp in exchange for preferential treatment in decision-making. In brief, the Third Circuit found as follows.

First, the Circuit found that Kemp’s use of his office to provide lists of bondholders and contact banks to facilitate repayment to the holders was his only role in an “asset locator” business in which he held a stake and received money from, thus he accepted money (from the business) in exchange for his official actions; amounting to honest service fraud.

Next, the Circuit upheld a “Stream of Benefits” instruction on bribery in the honest services fraud context. The court recognized that bribery in this context requires “a specific intent to give or receive something of value in exchange for an official act,”and found that the court’s instructions conveyed the quid pro quo requirement. The court likewise upheld use of a “failure to disclose” theory of honest services, in which the court correctly instructed that concealing a financial interest while taking discretionary action benefiting the giver of the benefit (rather than the public official) amounts to honest services fraud.

With respect to the bribery conviction, the providing of otherwise unavailable loans to a public official is consideration which may constitute the “quid”.

A variance between the indictment, charging a single conspiracy, and the proof at trial, showing separate conspiracies, did not substantially prejudice the defendants as evidence concerning relationships of other co-defendants would have been admissible and the limited number of defendants and conspiracies did not create a danger of prejudice.

Finally, several days into deliberations, the court received two notes from jurors, one indicating a certain juror was refusing to consider evidence and the other that this juror was biased. After re-instructing on deliberation, the court received two similar notes the following day. The court then questioned each juror individually and was satisfied the jury could continue to deliberate. About a week later, the court received another note, signed by nine jurors, that deliberations had stopped. Following a second individual voir dire and another note from the jury, the jury was instructed yet again on deliberation. After the court received additional notes, a third individual voir dire was conducted and the general consensus was that juror 11 was biased and/or refused to look at the evidence. Juror 11 denied the allegations of bias and refusal to deliberate. The court granted the government’s motion to discharge juror 11.

The Circuit held that the district court had “substantial evidence of misconduct” and acted within its discretion to individually question the jurors, taking care to limit questions to appropriate matters. The district court also acted within its discretion dismissing juror 11. Adopting a “no reasonable possibility that the allegations were based on the juror’s view of the evidence” test, the Circuit found the evidence supporting dismissal “overwhelming.”

Downward Variance Reversed, Held Procedurally and Substantively Unreasonable

In United States v. Goff, No. 05-5524 (3d Cir. Aug. 30, 2007), the panel unanimously held both procedurally and substantively unreasonable a four-month below-guideline sentence in a possession of child pornography case.

As part of a wider investigation into an international child pornography enterprise, Goff’s home was searched and two computer hard drives were seized. A few images were found on one of the drives, but the other contained hundreds of images in the “deleted” file. Goff pleaded guilty to a single count information charging possession of at least 3 images of child pornography. Included in the PSR, and apparently adopted by the DCT at sentencing was a Guideline range of 37 to 40 months, which included 5-level increase in the offense level for possession of more than 600 images (§2G2.4(b)(5)(1)).

Defense counsel sought a variance from the guidelines arguing that they were substantially in excess of that warranted by the offense, given all but a few pictures had been deleted and many were likely duplicates. Counsel also emphasized Goff’s otherwise law-abiding life, employment history, community involvement, and volunteer activities in a number of charitable causes. Counsel further argued that the offense was a solitary one – confined to the defendant’s home while alone – and that a psychiatrist had found he was not a danger to the community and not a pedophile. The district court agreed and sentenced Goff to 4 months imprisonment. The court noted that it had considered the guideline range, the psychiatrist’s letter, numerous letters of support, Goff’s lack of criminal history, and his otherwise “exemplary” life.

The Third Circuit held that the four-month sentence was both procedurally and substantively unreasonable, finding that the district court’s decision failed to reflect the required analysis of the factors set out in §3553(a). Further, even if all the §3553(a) factors had been considered, a four-month sentence could not be justified under the circumstances of the case.

The procedural errors occurred at Gunter’s first and third steps. First, the district court failed to address defense counsel’s argument that the 5-level increase (for 600+ images) should not apply, (although it was couched as an argument for variance, the court felt it was also in part an objection to the guideline calculation). The government has since conceded that many of the deleted files were duplicates and only a 4-level enhancement, (for 300-600 images), should apply.

With respect to the third step, the Circuit found that the district court failed to mention §3553(a) or explain its consideration in imposing sentence. The district court missed several factors including the seriousness of the offense, deterrence, and the need to avoid unwarranted disparities – which it found particularly important given how low the sentence was compared to similar offenders. This procedurally flawed approach, the Circuit stated, “put at risk the substantive reasonableness of any decision”.

Substantively, the Circuit found the guidelines were given “short shrift” and noted that Rita’s presumption of reasonableness supports this Circuit’s position that a within-range sentence is more likely to be reasonable. In addition, the district court failed to adequately account for the nature and circumstances of the offense, the seriousness of the offense, promotion of respect for the law, and just punishment (§3553 (a)(1)(2)(6)).

The Circuit seemed to take particular umbrage at Goff’s characterization of the offense as a solitary activity, pointing out that mere possession of child pornography is an ongoing victimization of the children involved and creates a market for the industry. The court also found that Goff’s lifestyle and lack of criminal history were not unique and plainly within the “heartland” of these cases.

Finally, the court compared this sentence to a New Jersey case arising from the same investigation in which the defendant received 28 months from a guideline range of 27–33, thus creating an unwarranted disparity. The Court points out, in a footnote, that while the judge may have a “sincerely held policy disagreement” with the weight of a sentence called for by the Guidelines, “policy disagreements are not a basis for bypassing the Guidelines,” citing United States v. Ricks.

“Downward Departure” from Guideline Sentence must fall Below Guideline Range

In United States v. Floyd, No. 06-1513, (3d Cir. Aug. 27, 2007), the Third Circuit held that a “departure” from a Guideline sentence means a sentence below the bottom of the Guideline range rather than below a predetermined sentence within that range.

In 2004, Floyd was indicted on various counts arising from a conspiracy to distribute at least 50 grams of crack cocaine and 5 kilograms of cocaine powder. Pursuant to a plea agreement, Floyd pleaded guilty to one count of traveling interstate or causing others to travel interstate to facilitate drug trafficking, which carried a maximum sentence of 60 months in prison. 18 U.S.C. § 1952(a)(3). In exchange for pleading guilty, the government agreed to dismiss the remaining charges and to request a downward departure based on Floyd's substantial assistance with the government's prosecution of her co-defendants. At the first sentencing, the government did not move for a downward departure because, in the government's view, dismissal of the remaining charges resulted in a sufficient reduction in her sentence. With no departure motion before it, the district court calculated an applicable Guidelines range of 41 to 51 months and sentenced Floyd to 48 months in prison. The Third Circuit agreed with Floyd that “the [g]overnment did not reserve the right not to recommend a downward departure on the ground that the charge bargain turned out to be more favorable than it had originally anticipated” and remanded to the district court to determine whether Floyd's assistance was “substantial.” On remand the government chose to forego an evidentiary hearing and simply moved for the downward departure.

At Floyd's resentencing, the district court incorporated its prior rulings that established a Guideline range of 41 to 51 months. With respect to the government's motion to depart, it ruled that the case “marginally” met the criteria for a downward departure from the original sentence of 48 months. As a result, the court reduced the original sentence of 48 months by 6 months. The court then stated that the sentence “satisfie[d] the purposes” of the factors outlined in 18 U.S.C. § 3553(a), and, without altering Floyd's sentence further, imposed the sentence of 42 months.

Floyd's attorney objected, arguing that despite having granted the government's departure motion, the district court had “in essence ... imposed a guideline sentence, just downward from the initial sentence.” The court responded that the sentence of 42 months did reflect a downward departure from the 48 month original sentence.

Floyd appealed, arguing that a downward departure under the Guidelines must result in a sentence below the otherwise applicable range and that the district court “misunderstood the definition of a downward departure.”

The Third Circuit agreed, finding that the manner by which the District Court reduced Floyd's sentence– from a prior sentence of 48 months to a new sentence of 42 months– was inconsistent with proper sentencing procedure and step 2 of the Gunter process. The Circuit concluded that the definition of departure–the “imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence”(U.S.S.G. § 1B1.1 cmt. n.1(E)(2003))–does not mean a departure from a specific sentence determined within the guideline range. Such a view, it explained, that every sentence that is lower than a within-range sentence can be considered “otherwise less than the guideline sentence” (and thus a downward departure), even when it is within the applicable range, would effectively nullify any distinction between simply reducing a sentence within a range and formally departing from it. The Court has previously stated that when someone is promised the possibility of ‘a departure from the guidelines' under U.S.S.G. § 5K1.1, he or she may reasonably expect to be afforded the possibility of a sentence below the guideline range.

By departing from the previously imposed sentence, rather than from the calculated Guidelines range, the district court effectively inverted the three-step sentencing process. District courts must rule on departure motions after calculating the range but before balancing the § 3553(a) factors. Here, the court departed from the sentence it originally imposed and therefore departed after (an assumed) balancing of the statutory factors, making it impossible to effectively review the sentence.
Finally, the Court explained how the sentencing judge could appropriately arrive at the 42-month sentence:
The Court, for example, could have departed below the 41 to 51 month range (at step 2), and then varied upward within the range by balancing the § 3553(a) factors (at step 3) [or] . . . the Court could have “denied the motion for a departure and then gone on to acknowledge [Floyd's] substantial assistance by sentencing lower in the guideline range than it would otherwise have done.

Court reverses below-guidelines sentence as substantively unreasonable

In its 2-1 decision in United States v. Tomko, Case No. 05-4997, the Third Circuit vacated a probation-only sentence for tax evasion as substantively unreasonable. Judge Fisher wrote for the majority. Judge Smith wrote a forceful dissent.

Facts: Tomko, a construction company owner, built a large, well-appointed new home for himself. He asked the subcontractors who were working on the house to falsify their invoices so that it would look like their work on his house was really done on projects for his construction company. He then paid for the work through his construction company and had the company write off the work from its taxes as a business expense. Tomko did not report the company’s paying for his home as income on his tax returns. He subsequently pleaded guilty to one count of tax evasion in violation of 26 U.S.C. § 7201, and stipulated to a tax deficiency of $228,557.

After correctly calculating Tomko’s offense level (13), criminal history category (I), and advisory Guidelines sentence range (12-18 months incarceration), the district court considered how the sentencing factors of § 3553(a) apply to Tomko. It noted on the one hand that Tomko was an unsympathetic defendant because he was wealthy and could have borne the tax burden. Further, it considered the need for consistency in sentencing. The district court also heard extensive, impassioned argument from the government that sentencing Tomko to anything other than jail time would encourage and embolden other tax cheats, rather than serve the sentencing goal of general deterrence. The district court then weighed against these factors the fact that Tomko’s crime was nonviolent, self-contained, and "victimless." It further considered his participation in charity and volunteer activities, community involvement, acceptance of responsibility, and low likelihood of recidivism. The district court also noted that incarcerating Tomko would have a profoundly negative effect on the welfare of his company and its employees. Taking together all of these factors, the district court found that the goals of sentencing weighed in favor of imposing on Tomko a below-guidelines sentence. It therefore imposed a sentence of 250 hours community service, three years probation (one of which would be house arrest), 28 hours of in-house alcohol abuse treatment, and a $250,000 fine.

Analysis: The majority in Tomko found this sentence substantively unreasonable, and therefore an abuse of the district court’s sentencing discretion. The majority reviewed the sentence by conducting their own "meaningful consideration" of the § 3553(a) factors vis a vis Tomko, the outcome of which it then compared with the district court’s "meaningful consideration." This kind of review, the Court said, was an essential part of appellate review in the post-Booker sentencing world.

As a result of its consideration of the § 3553(a) factors, in which it emphasized heavily the factors set forth in §§ 3553(a)(2)(A)-(B) and (a)(5), the majority found that the weight of policies favoring incarceration for economic crimes and consistency in sentencing, taken together with the circumstances of Tomko’s offense and the need for general deterrence, far outweighed the factors favoring leniency for Tomko. And while the majority was careful to avoid the use of a "proportionality principle" – requiring extraordinary reasons for extraordinary variances – it noted that "closer appellate scrutiny of sentences that deviate from the norm is necessary to prevent the unwarranted disparities that bedeviled the pre-Sentencing Reform Act discretionary sentencing regime and prompted reform."

Judge Smith, writing in dissent, argues that the majority’s approach of conducting its own consideration of the sentencing factors, then comparing its results to the district court’s, leads the majority to three major flaws. The majority’s first mistake was the adoption of a de facto proportionality principle. Consequently, Judge Smith argues, the case should have been held c.a.v. pending the Supreme Court’s decision on whether proportionality principles are permissible in United States v. Gall, No. 06-7949, but the majority did not do so.

The second error is that despite saying that its review is for abuse of discretion, the district court engaged in de novo review of Tomko’s sentence. Judge Smith observes that the district court gave meaningful consideration to all of the § 3553(a) factors, including the seriousness of the offense and the need for general deterrence, and then rendered a sentence based on its appropriate consideration of those factors. He points out that "[i]n no post-Booker case has this Court ever asked a sentencing court to do more than the District Court did here." As a result, he argues, "[t]he majority opinion curtails the deference we accord sentencing courts to impose a reasonable sentence."

Third, Judge Smith states, the majority opinion "provides no guidance for district courts," but instead "confuse[s] district courts as to what circumstances would ever justify a substantial variance, regardless of the validity of the reasons for the variance given by the sentencing court." This, he says, "runs contrary to both the deference formerly granted to sentencing courts, as well as our appellate role of examining the legitimacy of the reasons given by the sentencing court for exercising its decisionmaking discretion."

Third Circuit affirms convictions and sentence in bank fraud/money laundering conspiracy

On August 20, 2007, the Third Circuit ordered published its July 31, 2007, opinion in United States v. Greenridge, Case No. 05-4887, which concerned a bank fraud and money laundering conspiracy. The conspiracy involved stealing corporate checks, falsifying the payee names thereon, and depositing the checks in business and personal accounts to make the funds appear legitimate. The defendants raised a variety of issues challenging their convictions, and one of the defendants challenged his sentence as unreasonable.

The Third Circuit affirmed the district court on all of the issues. It held that the district court (1) properly refused to instruct the jury on a variance between the indictment (which alleged a single conspiracy among the defendants on each count) and the proof at trial (which defendants said instead showed a conspiracy per defendant per count); (2) did not abuse its discretion by admitting evidence of a defendant’s prior crime to impeach the credibility of an out-of-court statement by that defendant pursuant to F.R.E. 806; (3) did not abuse its discretion by allowing the government to admit evidence to impeach a defendant’s testimony by direct contradiction pursuant to F.R.E. 607; (4) properly denied the Rule 29 motions of two defendants, who claimed that the government failed to show their involvement in transactions necessary to support the charges; and (5) imposed a reasonable sentence after giving meaningful consideration to the § 3553(a) factors.

Restitution Requirements Under Section 3664(f)(2) Are Satisfied Without Express Findings

In United States v. Lessner, the 3C addressed and rejected a number of sentencing challenges and held, inter alia, that sentencing courts need not make explicit findings on the record in support of a restitution order, so long as the record evidences the court’s consideration of the statutory factors.

Defendant, a procurement contracting officer for a federal agency, pled guilty to all 21 counts of an indictment charging her with wire fraud, defense procurement fraud, destruction of records in a federal investigation, and destruction and removal of property to prevent seizure. The district court denied defendant’s request for a downward departure based on diminished capacity, and calculated an advisory range of 51 to 63 months, based on an offense level of 24 and criminal history category of I. The offense level reflected the court’s assessment of a 2-level enhancement for obstruction of justice and its denial of a downward adjustment for acceptance of responsibility. The court imposed a sentence of 51 months’ imprisonment, 3 years of supervised release, and mandatory restitution of $938,965.59, with a specified payment schedule.

The 3C first considered and rejected defendant’s challenges regarding the sufficiency of the district court’s plea inquiry. In particular, the 3C rejected defendant’s arguments that the factual bases for 3 counts were insufficient. It explained that a court need not be "convinced beyond a reasonable doubt of a defendant’s guilty to accept a plea of guilty; it need only find sufficient evidence in the record as a whole to justify a conclusion of guilt." In making this determination, the court can look to "‘the defendant’s own admissions, the government’s proffer of evidence, the presentence report, or "whatever means is appropriate in a specific case – so long as the factual basis is put on the record."’" In this case, the 3C found the evidence sufficient on all three challenged counts.

The 3C also rejected defendant’s claim that the district court erred in denying her a downward adjustment for acceptance of responsibility. The 3C the continuing nature of defendant’s obstructive conduct, as well as her ongoing denial of certain conduct and her invocation of September 11 and her husband’s heart attack as justification for conduct that began before these events, and concluded that the district court’s decision was not in error.
Defendant also challenged the district court’s imposition of restitution, arguing that it failed to make adequate findings as to her financial circumstances before setting the payment schedule. The 3C held that a district court need not place on the record its consideration of the defendant’s financial resources, projected earnings, and financial obligations. Rather, "[W]here, as here, the record evidences a court’s consideration of the defendant’s financial situation–albeit without express findings–the requirements of § 3664(f)(2) are satisfied."

The 3C rejected defendant’s other sentencing challenges as well, finding that the record reflected the district court’s "meaningful consideration" of the sentencing factors, that the bottom-of-the-range sentence was substantively reasonable, and that the restitution order did not violate the Excessive Fines Clause of the Eighth Amendment.

“Guidelines-centric” approach “reasonable and effective” where sentence was reduced by downward departure

In United States v. Hankerson, No. 06-3291 (3d Cir. 7/31/07), the Third Circuit rejected as meritless appellant’s reasonableness and ineffective assistance of counsel challenges to his 121-month sentence. That sentence reflected a downward departure based on overstatement of criminal history from the career offender-enhanced advisory guideline range of 188 to 235 months.

The Court deemed the sentence procedurally reasonable in that the district court first correctly calculated the guidelines, then considered defendant’s requests for downward departures, and then meaningfully considered the § 3553(a) factors. In ruling the sentence substantively reasonable as well, the Court noted the district court’s granting of a downward departure and its consideration of defendant’s personal history and circumstances. Taking into account its "deferential posture" toward sentencing decisions and the Supreme Court’s instruction in Rita that a within-guidelines sentence is more likely to be reasonable than a non-guidelines sentence, the Court said it could not conclude that the district court "acted outside its ‘broad discretion’ in imposing this sentence."

Turning to the ineffective assistance challenge, the Court viewed trial counsel’s approach as both "reasonable and effective." Specifically, with respect to the career offender predicates, while acknowledging Third Circuit precedent on the issue, counsel argued that the two prior offenses should not be treated as related "in the interest of justice." In the alternative, counsel argued, a downward departure was warranted on the basis of overstatement of criminal history. In light of the district court’s granting of a downward departure on this ground, the Court deemed this an effective strategy. The Court also concluded that further development of mitigation evidence would not have produced a different result and that, therefore, appellant could not show the prejudice necessary to prevail on an ineffective assistance claim.

Finally, the Court rejected the claim that trial counsel’s focus was inappropriately "guidelines-centric" after Booker. The Court noted that counsel had presented evidence tailored to the § 3553(a) factors. Moreover, it said, given the integral role the guidelines continue to play in sentencing after Booker, "it was entirely reasonable for defense counsel to focus much of his argument on the guidelines and on his successful argument for a downward departure. . . . As such, counsel’s approach to sentencing was both reasonable and effective, and thus fails the Strickland test for ineffectiveness."

100:1 Crack/powder ratio: Cannot replace ratio, but can vary from GL based on case-specific reasons

In US v. Ricks, Nos. 05-4832, 4833 (3d Cir. 7/20/07), the Circuit followed its prior decision in US v. Gunter, 462 F.3d 237 (3d Cir. 2006), in ruling that although a district court can consider the 100:1 crack/powder differential in the guidelines and find the differential is "too vast," it may not categorically reject the ratio and substitute its own. Instead, in varying from the guideline range for crack cocaine, the court must give reasons for why the ratio is too harsh "when applied to the defendant." In doing so, the district court may draw on the reports of the Sentencing Commission finding that the 100:1 ratio treats crack offenses too severely.

On its surface, the Ricks decision may seem very straightforward: The district court judge found that the 100:1 ratio was too severe, based on the reports of the Sentencing Commission, and it sentenced instead based on the 20:1 ratio that the Sentencing Commission recommended. The 3rd Circuit then decided Gunter, holding that district courts can consider the crack/powder differential and the Sentencing Commission reports, but cannot substitute their own ratio. The district court here, in light of Gunter, thus erred mainly by expressly relying on the 20:1 ratio and not explaining its sentence in terms of case-specific factors.

But the Ricks decision, in reaching its holding, contains a number of statements that may strike some as inconsistent. On the one hand, the Circuit rules that the district court may not disagree with the 100:1 ratio as a "policy matter," but on the other hand, it rules that district courts may "view the sentencing disparity [based on this ratio] as too vast," based on the findings of the Sentencing Commission. The Circuit further states, "Indeed, as a matter of policy, we agree with the District Court that a 100-to-1 ratio leads to unjust sentences,..." but then indicates that only Congress can address this policy. This may leave district courts and counsel confused. What exactly counts as "policy" and what counts as a "case specific reason"?

The Circuit's reasoning, moreover, appears inconsistent with a case just decided by the Supreme Court -- US v. Rita, 2007 WL 1772146 (6/21/07) (see blog here). Rita, in ruling that at the district court level there is no presumption of reasonableness for a guidelines sentence, states that the district court can choose to sentence outside the range "because the Guideline sentence itself fails properly to reflect section 3553(a) considerations." Rita at *9. In a similar vein, Rita, suggests a district court may agree with arguments that the "Guidelines reflect an unsound judgment, or for example, that they do not generally treat certain defendant characteristics in the proper way." Rita at *12. These certainly sound like "policy" considerations.

Rita thus strongly suggests that the district courts, in independently considering the 3553(a) factors, may disagree with the policies on which the Guidelines are based. Nothing in Rita limits the district court to consideration of "case specific factors" and nothing suggests that the policies on which the Guidelines are based are sacrosanct. Indeed, treating the policies underlying the Guidelines as sacrosanct would make the Guidelines no longer truly "advisory." This would recreate the 6th Amendment problems that Booker supposedly resolved.

Hopefully these issues will be cleared up when the Supreme Court decides Kimbrough next term, which will address sentences below the Guidelines for crack cocaine. (See Prof. Berman's blog discussion here.) In the meantime, the bottom line in light of Ricks and Gunter is that sentences below the range in crack cases can be based on a finding that the 100:1 differential is "too vast," but the district court should not mention any other ratio, and should couch the reasons for the sentence expressly in terms of case-specific factors.

Illegal re-entry: Date offense commences for GL purposes

In US v. Hernandez-Gonzalez, Nos. 06-1998 & 2130 (3d Cir. 7/19/07), the Circuit held that for purposes of calculating the Guidelines criminal history score, the offense of being an alien "found in" the United States following deportation commences on the date the alien entered the US, not the date he/she was actually found in the US by authorities.

Defendant, an alien from Mexico, was convicted of five minor offenses from 1990 to 1992. In 1994 he was convicted of an aggravated felony, and after serving his sentence he was deported to Mexico in 1998. He then re-entered the US illegally sometime in 1999. He was ultimately "found in" the US by authorities in March, 2005. The district court did not count the five offenses from 1990 to 1992 in the criminal history score because they were all more than 10 years prior to his being found in the US in 2005. The government appealed, arguing that for Guidelines criminal history purposes, USSG 4A1.2, the offense should be deemed to have "commenced" when defendant re-entered the US sometime before Jan 1st of 2000.

The Circuit agreed that the offense of being found in the US, for Guidelines purposes, commences when the alien enters the US. The Circuit distinguished two cases the district court relied upon, finding that neither addressed the exact issue presented here. In US v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), the Court held that for purposes of the statute of limitations, being found in the US is not a continuing offense when the alien enters non-surreptitiously through a port of entry. That decision is thus limited to the statute of limitations context where the authorities are aware of the alien's entry. In US v. Lennon, 372 F.3d 535 (3d Cir. 2004), the Court declined to address the issue here, but suggested that the reasoning of DiSantillo does not apply when the alien has entered the country surreptitiously.

The Circuit reversed and remanded for a sentencing hearing to determine the date of the re-entry, because the district court had not made any findings regarding when the last time was that defendant entered the US. The presentence report stated that defendant had visited his parents on at least two occasions following his re-entry in 1999, and if the last of these visits took place later than 2002, the prior convictions would still be outside the 10 year time period. On remand, the district court will thus determine when the most recent re-entry was, and when the "found in" offense commenced for Guidelines purposes.

The Circuit also rejected defendant's cross-appeal arguing for a lower sentence based on disparity with jurisdictions that have a "fast-track" program. Following its decision in US v. Vargas, 477 F.3d 94 (3d Cir. 2007), the Circuit affirmed the district court's refusal to vary from the Guidelines range on disparity grounds.

Third Circuit Resubmits Opinion After Panel Rehearing

The Court granted a panel rehearing in United States v. Rivas, (No. 05-3380), blogged on this site on March 20, 2007 (see here). The panel submitted the same opinion (affirming the defendant's conviction on several grounds) following the rehearing.

District Court's Reliance on Unsworn Police Report to Impose Sentence 82 Months Longer Than Government's Recommendation Upheld

In United States v. Leekins, No. 05-1658 (3d Cir. June 29, 2007), the Third Circuit affirmed a sentence at the bottom of the guideline range, rejecting the appellant’s arguments that he was improperly sentenced on the basis of judge-found facts and unsworn statements in a police report.

Leekins pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) pursuant to a plea agreement wherein he agreed that he was subject to the armed career criminal sentencing enhancement. The government agreed to recommend imposition of the 15-year mandatory minimum sentence. The district court did not follow the government’s recommendation. At sentencing, the district court adopted the presentence report’s finding that Leekins possessed or used a firearm in connection with a crime of violence—namely, attempted murder. This upward adjustment resulted in a guideline range of 262-327 months, and the district court sentenced Leekins to 262 months.

With little analysis, the Third Circuit cited United States v. Grier, 475 F.3d 556 (3d Cir. 2006)(en banc), and rejected Leekins’s argument that the district court violated his Sixth Amendment right to trial by jury and Fifth Amendment right to due process by sentencing him on the basis of facts that he did not admit and that were not found by a jury. The Court also found the defendant’s sentence to be reasonable. The Court acknowledged that Leekins pleaded guilty with the expectation that he would receive an 180-month sentence, but noted that the plea agreement explicitly advised him of the possible statutory maximum sentence of life imprisonment.

The Court also rejected Leekins’s argument that the district court erroneously considered an unsworn police report for sentencing enhancement purposes. The Court noted that police reports are neither inherently reliable nor inherently unreliable. The relevant inquiry is whether the facts upon which a judge bases a sentence have sufficient indicia of reliability to support their probable accuracy. The Court found that the other evidence presented at the sentencing hearing corroborated the findings in the police report and concluded that the district court’s reliance on the report was reasonable.

Independent Contractors With No Control Over Federal Funds Are "Agents" Under Section 666 and Prosecutors' Vouching Deemed Harmless Error

In United States v. Vitillo, No.05-4330 (3d Cir. June 25, 2007), the Third Circuit affirmed the conviction of John Vitillo and two of his companies on several counts of theft and conspiracy in violation of 18 U.S.C. § 666, which prohibits theft from organizations and government agencies that receive more than $10,000 in federal funds. The Court rejected Vitillo’s argument that he was not an "agent" for purposes of § 666 because he did not have control over the federal funds. It explained that, according to the statutory definition, an "agent" is "merely a person with authority to act on behalf of the organization receiving federal funds," which can include independent contractors.

During the government’s investigation of Vitillo’s billing practices, the two AUSAs who later served as trial counsel accompanied the FBI agents who executed a search warrant at the defendant’s office. These prosecutors were also present during the FBI’s subsequent interrogation of Vitillo. The agent who conducted the interview testified at trial that Vitillo confessed; Vitillo testified to the contrary. During the government’s opening statement and witness examination, the prosecutors made repeated reference to their presence at the FBI raid and the defendant’s interview. The Court expressed concern over this "ill-advised" practice and suggested that the trial counsel either should not have attended the interview or should not have served as trial counsel. It held that the prosecutors’ comments and questions referring to their presence at the defendant’s interview constituted improper vouching because it implied that the prosecutors knew that the agent was testifying truthfully.

The Court also held that under its recent decision in United States v. Harris, 471 F.3d 507 (3d Cir. 2006), it was improper for the prosecutor to explicitly ask Vitillo whether the agent who interviewed him was lying because this type of questioning tends to infringe upon the jury’s exclusive role as the arbiter of credibility. Despite these instances of prosecutorial misconduct, however, the Court concluded that a new trial was not warranted because of the "overwhelming" evidence of the defendants’ guilt.

Finally, the Court held that the district court’s determination of the amount of restitution ($317,760) was supported by a preponderance of the evidence.

Rita's impact in the 3rd Circuit

In Rita v. U.S., 2007 WL 1772146, the Supreme Court ruled that the circuits "may," for purposes of appellate review only, apply a "presumption of reasonableness" to sentences within the Guidelines range. But the Court placed so many limits on this presumption, and went on at such length to stress the discretion district courts have at sentencing, that ultimately Rita is a very good decision that emphasizes that the guidelines are truly "advisory."

The key points from Rita:

1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.
Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion").
2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.
Rita, at *9 ("We repeat that the presumption before us is an appellate presumption. . . . In determining the merits of these [sentencing] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines should apply.")
3) Judges may "disregard" the Guidelines.
Rita, at *10 ("As far as the law is concerned, the judge could disregard the Guidelines . . .").
4) The sentencing court does not as having a subordinate role to the Sentencing Commission, but a co-equal role. Both are charged under the sentencing statute with applying the same § 3553(a) analysis. Given this framework, the sentencing court does not have to defer to the Commission’s judgments, but instead can reach its own judgments.
Rita, at *7 ("The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.").
5) The sentencing court may disagree with and reject policy judgments of the Sentencing Commission and the Guidelines. Nothing the Commission says is sacrosanct.
Rita at *12 (the judge must address arguments that the Guidelines "reflect an unsound judgment, or, for example that they do not generally treat certain defendant characteristics in the proper way").
6) The district courts may consider the factual findings of the Sentencing Commission, which would include their findings regarding unfairness of the crack/powder ratio, and the career offender guidelines.
Rita at *9 (sentencing courts are not "prohibited from taking account of the Sentencing Commission’s factual findings or recommended sentences").
7) There can be no "presumption of unreasonableness" for sentences outside the Guidelines, even at the circuit level.
Rita, at *11 ("The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.")
8) We do not have any presumption of reasonableness in the 3rd Circuit. Rita leaves undisturbed the 3rd Circuit’s rejection of a presumption of reasonableness. Rita only holds that Courts of Appeals "may" apply such a presumption, not that they must.
Rita, at *8 (citing Cooper (3d Cir) with approval).
9) Even in circuits that, unlike the 3rd Circuit, have adopted the presumption, it is a "nonbinding" presumption" that has no "independent legal effect" and only applies on appeal.
Rita, at *6 ("the presumption is nonbinding" and does not "reflect strong judicial deference that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge"); Rita at *8 (presumption does not have "independent legal effect").
10) Rita reaffirms the overarching role played by the "parsimony provision," making clear that in considering all the § 3553(a) factors, the judge must "impose a sentence sufficient, but no greater than necessary, to comply with" the aims of sentencing.
Rita, at *6.
11) Rita calls into question the 3rd Circuit's ruling in Vampire Nation, 451 F.3d 189 (2006). Vampire Nation held that the requirement in Fed R. Crim P. Rule 32(h) of advance notice before a judge departs from the Guidelines range on a basis not identified by the parties applies only to "departures" (pursuant to the Guidelines) and not "variances" (pursuant to 18 USC sect 3553(a)). Rita states that "the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Rita at *9 (citing inter alia Rules 32(h) and Burns, 501 U.S. 129, 136 (recognizing importance of notice)). This concern for adversarial testing applies equally to departures and variances, and thus Rita undercuts the reasoning in Vampire Nation.

In possession of child pornography case, the Third Circuit rejects certain special conditions of supervised release.

In United States v. Voelker , No. 05-2858, (3d Cir. June 5, 2007), Voelker pled guilty to possessing child pornography in violation of 18 U.S.C. §2252(a)(2). The court imposed a supervised release term of life. On appeal, he challenged three special conditions: (1) The defendant is prohibited from access to any computer equipment or any on-line computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system or any other public or private computer network; (2) The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct as defined at Title 18 of the United States Code, Section 2256(2); and (3) The defendant shall not associate with children under the age of eighteen except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.

The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."

The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).

As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.

Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."

The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."

It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.

The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."

Written by Renee Pietropaolo