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.
Friday, September 28, 2007
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.
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.
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.
Tuesday, September 25, 2007
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 . . . ."
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 . . . ."
Sunday, September 09, 2007
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.
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.
Thursday, September 06, 2007
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.”
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.”
Tuesday, September 04, 2007
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.
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.
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.
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