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Showing posts from January, 2007

Third Circuit Upholds Large Upward Variance, Explaining that Ratcheting Procedure Not Required

The Third Circuit clarified yesterday, in United States v. Colon, that the ratcheting procedure district courts must employ when departing upward under the Guidelines for criminal history -- i.e., individually and sequentially considering each next-higher criminal history category -- does not apply to upward variances in consideration of the Section 3553(a) factors. The Court has previously held that ratcheting is still required post-Booker when district courts are departing under the Guidelines, United States v. King, 454 F.3d 187, 193 (3d Cir. 2006), but to require a similarly Guidelines-centric methodology for variances impermissibly "tie[s] the courts hands" by giving the Guidelines undue primacy in the Section 3553(a) calculus. Colon, slip op. at 7. Booker "doubly diminished" the Guidelines, the Court says, first by rendering them advisory and second by putting them on an even plane with the other Section 3553(a) factors. Colon, slip op. at 4.

Here, the dem…

Third Circuit Blog

Third Circuit Blog
In United States v. Korey, 2007 WL 14686, No. 05-3840, filed 1/4/07, the 3d Circuit vacated the defendant's conviction because the conspiracy instruction given to the jury contained an impermissible mandatory presumption that was not harmless. The instruction foreclosed the jury's consideration of an essential element of conspiracy: that the defendant shared a common goal, which in this case was to advance the cocaine distribution scheme.

65-year sentence affirmed for first offender convicted of 924(c) in triplicate.

Nope, not a typo . . . In United States v. Walker, No. 04-4405 (1/16/07), the Third Circuit affirmed a 65-year sentence for two armed robberies a jury said Mr. Walker committed in late 2004, as well as his possession of a firearm in connection with three crack-related offenses. The sentence consisted of a 10-year concurrent sentence for the drug offenses, and consecutive sentences, totaling 55 years, for three violations of 18 U.S.C. § 924(c). At issue on appeal was "whether the 55-year consecutive mandatory minimum portion of [Mr. Walker's] sentence . . . violate[d] the Fifth and Eighth Amendments. op. at *1. Mr. Walker argued that 924(c)'s sentencing scheme violated due process and the separation of powers by limiting a court's sentencing discretion and preventing individualized sentencing. Reaffirming its decision in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), the Court dismissed this claim, noting again that "Congress has the power to define crimin…

Third Circuit Blog

Third Circuit Blog
In US v. Williams, 2007 WL 14684 (C.A.3(Pa.)), No. 05-4292, filed 1/4/07, the 3d Circuit reiterated the standard for when double jeopardy bars a retrial following a government-provoked mistrial. The district court had granted a mistrial for prosecutorial misconduct (after the prosecutor questioned the defendant about prior convictions despite the court's order not to do so) and then granted the defendant's motion to dismiss the indictment on double jeopardy grounds after finding that the prosecutor intended to provoke the mistrial. The 3d Circuit disagreed, finding that the record evidence did not sufficiently establish that the government intended to goad the defendant into requesting a mistrial. It reversed and remanded for a new trial.

Cross Examination: Prosec can't ask Def if police are lying

In US v. William Harris, No. 05-2016 (3d Cir. 12/29/06), the 3rd Circuit held as a matter of first impression in the Circuit that "asking one witness whether another is lying is inappropriate." But since there was no objection in this case to the prosecutor's questions of defendant regarding whether the police witnesses were lying, the issue was reviewed for plain error. Since the Circuit had not yet ruled until this case, the error was not "plain." Nearly all other circuits have ruled that such questions are improper and may constitute reversible error if a timely objection is made.

These sorts of cross-examinantion questions are particularly common whenever a defendant testifies. Thus, in light of Harris, it is now especially important to object anytime the prosecutor asks the defendant (or any other defense witness) if the police witnesses must be lying.

Sentencing and the Parsimony Provision

In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.

Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this
subsection [which lists the four basic purposes of sentencing].

The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judg…

Fraud - Insufficiency of Evidence

In US v. Aimee Jones, No. 05-4898 (12/28/06), the 3d Circuit reversed the defendant's conviction for health care fraud (18 usc 1347(2)), finding that the evidence was insufficient. The Court ruled that although the government may well have established that defendant stole money from the federally funded methadone clinic where she worked, the government did not establish that defendant used false or fraudulent representations to get the money.

Defendant's role as a clerk in the clinic was to collect fees for services provided. Evidently she kept some of the fees instead of depositing them. But these acts did not involve any misrepresentation, and nothing defendant did affected the delivery of or payment for the health care services. In the absence of any such evidence, the elements of health care fraud were not established. To read the health care fraud statute any more broadly than this would be to allow it to cover simple theft, which is already covered by a separate statute. …

Ineffective Assistance of Appellate Counsel

In Wright v. Vaughn, No 04-3457 (3d Cir. 12/26/06), involving a 2254 petition challenging a state court conviction, the 3rd Circuit addressed a "layered" ineffectiveness claim: whether appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in not calling defendant's girlfriend as an alibi witness.

The Court ruled that appellate counsel was not ineffective since appellate counsel may have concluded that trial counsel had strategic reasons for not calling the witness. These reasons could have included the fact that as defendant's girlfriend, the witness was not unbiased, that she had a long history of crimen falsi offenses, and that after defendant's arrest, she never went to the police to tell them defendant could not have committed the murder.

The Court also rejected Wright's claim that he was denied his 6th Amendment right to confront witnesses because the district court disallowed cross-examination tending to show that othe…