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Monday, April 30, 2007

Court Vacates Shedrick Opinion; Grants Panel Rehearing Sua Sponte

In a April 26, 2007, Order, the Third Circuit vacated its February 28, 2007, precedential opinion in United States v. Shedrick, 478 F.3d 519 (3d Cir. 2007).

In that published opinion (described in detail here), the Court 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.

Third Circuit Retains Jurisdiction Even Where Defendant Signs Waiver of Right to Appeal

In United States v. Gwinnett, Case No. 06-1766 (3d Cir. April 26, 2007), the Third Circuit held that it "retains subject matter jurisdiction over the appeal by a defendant who had signed an appellate waiver." It emphasized that it "will not exercise that jurisdiction to review the merits" of an appeal where the defendant "knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice," because waivers of right to appeal are valid and enforceable. The Court then found that Ms. Gwinnett’s waiver of her appellate rights was knowing and voluntary. It consequently declined to exercise its jurisdiction and affirmed the district court's decision.

This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."

Thursday, April 26, 2007

Feigned Mental Illness is Proper Basis for Sentencing Enhancement for Obstruction of Justice

In United States v. Batista, Case No. 05-2949 (3d Cir. April 25, 2007), the district court applied the two-level enhancement of U.S.S.G. § 3C1.1 to the defendant’s offense level for feigning mental illness in an attempt to avoid trial. The defendant had initially negotiated with the government concerning a guilty plea. That negotiation fell through, and he moved for a evaluation of his competency to stand trial. The defendant underwent five separate competency evaluations. The evaluators decided that he was malingering, and the district court found him competent to stand trial. He subsequently pleaded guilty. At sentencing, the government moved for, and the district court granted, the sentencing enhancement for obstruction of justice.

The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."

3C Rules On Document Sealing And Attorney Speech Rule

In US v. Wecht (decided April 12, 2007), the Third Circuit addressed three applications arising during the prosecution of the Allegheny County coroner (Wecht). The trial on the 84-count indictment, alleging that Wecht had used his public office for private financial gain, was stayed pending the Circuit’s resolution of the applications, which were:
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.

Friday, April 20, 2007

Crawford does not prevent introduction of hearsay evidence at sentencing

In United States v. Robinson, Appeal No. 05-5330 (3d Cir. 3/5/07, published 4/16/07), the Third Circuit fell in line with every other Circuit to consider the issue when it ruled that the United States Supreme Court's recent confrontation clause decision in Crawford v. Washington, 541 U.S. 36 (2004), provides no basis for reversing prior Supreme Court precedent expressly allowing the introduction of hearsay evidence in the sentencing context.

Monday, April 09, 2007

120-month bank robbery sentence held reasonable for ailing defendant

The Third Circuit has upheld as reasonable a 120-month sentence in a bank robbery case in which the defendant has suffered from AIDS since the early 1980s. The defendant in United States v. Watson, No. 05-3892 (3d Cir. Apr. 5, 2007) faced a Guidelines range of 151-188 months, and the district court varied downward on account of the defendant's health, which had deteriorated during his pre-trial detention due to improper management of his medication by prison officials.

The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.

The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.

Wednesday, April 04, 2007

Third Circuit rejects challenge to shoeprint expert testimony, affirms application of CO provision and 460-month sentence for bank robbery

In United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007), the Third Circuit rejected a challenge to the admission of testimony of the government’s expert witness, where Ford argued that the expert opinion failed to meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The expert was permitted to testify that Ford’s shoes were the kind that could have made the footprints left on the bank counter at one of the robberies with which he was charged. Ford argued that the testimony should be excluded because the opinion was no more precise than that the shoe impressions at the bank and those made by the shoes he was wearing when apprehended were "similar." However, the Court ultimately reasoned that an expert opinion expressing the possibility that a crime shoe impression may have been made by shoes worn by the defendant, to the extent it meets the reliability and relevancy thresholds in Daubert, is "clearly relevant" to the question of whether defendant was present at the scene of the crime, and thus determined that the district court did not abuse its discretion in admitting this testimony.

The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.