Friday, March 30, 2007

United States v. Vargas - Fast-Track Disparity Case - Denied Rehearing

The Third Circuit has denied rehearing in United States v. Vargas, where the Court rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. (panel opinion here) In a concurring opinion, Judge Ambro elaborated on the “limited scope” of the Court’s panel opinion, its two holdings and how it is consistent with United States v. Gunter. First, Vargas held that “a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Although Gunter held that a court errs when it believes it has no discretion to consider an infirmity in the guidelines, it did not establish a rule that the court must consider it. Sentencing courts may, however, do so if “they are persuaded that the Guidelines do not sufficiently effect the goals of sentencing.” Second, Vargas held that a sentencing court “may not, in the fast-track context, rely on § 3553(a)(6)’s reference to ‘unwarranted sentence disparities’ to justify a sentence that varies from the advisory Guidelines range.” This does not preclude other factors - - such as ‘the history and characteristics of the defendant’ - - from serving as a basis for variance in the fast-track context. For example, an individual defendant may enter an early plea and waive various procedural rights, considerations permissible in Gunter’s third step.

Tuesday, March 20, 2007

Court affirms conviction for attempted support of terrorists, rejecting claims of entrapment, outrageous government conduct, and juror misconduct

In United States v. Lakhani, No. 05-4276 (3d Cir. Mar. 16, 2007), the Third Circuit affirmed the defendant’s conviction and 47-year sentence. Lakhani, a now-71-year-old trader of Indian descent, was convicted of attempting to provide material support to terrorists and other offenses following a jury trial for his role in the attempted importation of shoulder-fired surface-to-air missiles. Much of the evidence at trial consisted of Lakhani’s recorded conversations with a government informant who asked the defendant to procure missiles for his terrorist group, and who Lakhani "enthusiastically" agreed to help. Over the course of almost two years, Lakhani made various assurances to the informant that a missile would soon be available. In the end, however, the only weapon that the defendant "obtained" was a mock missile designed by cooperating Russian and American authorities.

The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"

Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).

Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."

Court clarifies earlier opinion: "We have never held that an arrest that is unlawful under state law is unreasonable per se under the 4th A."

In United States v. Laville, No. 06-1577 (3d Cir. Mar. 16, 2007), the Third Circuit—in a decision authored by Judge Barry, with a concurrence by Judge McKee and dissent by Judge Stapleton—reversed the district court’s grant of a motion to suppress post-arrest statements, explaining that the district court misinterpreted the Third Circuit’s holding in United States v. Myers, 308 F.3d 251 (3d Cir. 2002)(authored by Judge McKee, joined by Judge Barry, with a dissent by Judge Alarcon, from the Ninth Circuit). The district court found that the officer who arrested the defendant only had probable cause that the defendant had committed a misdemeanor offense (illegal entry), which, under the territorial law of the Virgin Islands, must be committed in the presence of an officer to justify a warrantless arrest. The district court read Myers as holding that local law governed the constitutionality of the defendant’s arrest; therefore, since the offense had been completed before the officer arrived at the scene, he had no authority to arrest Laville.

Judge Barry’s opinion explained that the district court’s ruling was based on a misinterpretation of Myers. "We did not hold in Myers and, indeed, have never held that an arrest that is unlawful under state and local law is unreasonable per se under the Fourth Amendment." Rather, "the validity of an arrest under state law is at most a factor that a court may consider in assessing the broader question of probable cause." The Court emphasized that reasonableness is the central inquiry under the Fourth Amendment and, under that standard, Laville’s arrest was supported by probable cause.

Judge McKee concurred with this analysis, but wrote separately to note his concern that the government is not allowed to take an interlocutory appeal merely because it disagrees with a suppression ruling. Moreover, this case could be decided entirely on the basis of the Third Circuit’s analysis of when the offense of illegal entry is completed in Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995).

In dissent, Judge Stapleton agrees with the district court that Myers requires application of the misdemeanor presence rule to determine the validity of Laville’s arrest. Even apart from Myers and the misdemeanor presence rule, however, Judge Stapleton would affirm the lower court because the information available to the arresting officer was insufficient to supply probable cause for an arrest.

Court finds information alleging prior felony properly filed and served

In United States v. Rivas, No. 05-3380, (3d Cir. Mar. 12, 2007), the Third Circuit affirmed the defendant’s conviction for conspiring to distribute crack cocaine, finding no reversible trial error. The Court also affirmed the defendant’s 240-month sentence, rejecting Rivas’s claim that the government improperly filed and served the information charging a prior felony drug conviction pursuant to 21 U.S.C. § 851.

Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.

The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."

Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.

Monday, March 12, 2007

Child Support Recovery Act does not Exceed Congressional Power Under Commerce Clause

In United States v. Kukafka, No. 05-1955 (3d Cir. Mar. 6, 2007), defendant was found guilty of two counts of failure to make child support payments in violation of 18 U.S.C. §228(a)(1) and (3). Kukafka argued that the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998, ("the Act"), exceeds the scope of Congress’s power under the Commerce Clause and violates the Tenth Amendment of the U.S. Constitution.

The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.

The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.

Maximum 60-month Sentence on Revocation of Supervised Release Reasonable

In United States v. Bungar, No. 05-5519 (3d Cir. Mar. 5, 2007), the Third Circuit found reasonable a 60-month sentence upon revocation of supervised release for drug-related violations. Bungar was originally charged with conspiracy to possess with intent to deliver heroin, distribution and possession with intent to distribute heroin and distribution and possession with intent to distribute cocaine. Pursuant to a cooperation agreement, he entered a guilty plea to the first two charges. The mandatory guideline range at the time was 292 - 365 months. The government filed a §5K1.1 motion and the court departed to 96 months’ imprisonment and 5 years’ supervised release.

Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.

Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."

Friday, March 02, 2007

Court finds it has jurisdiction to hear § 2255 petition despite waiver of right to mount collateral attack

In United States v. Shedrick, No. 04-2329 (3d Cir. Feb. 28, 2007), the Third Circuit found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.

Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.

While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.

Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."

The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.

The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.