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Wednesday, May 30, 2007

Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement

In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.

McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.

In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.

A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.

The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”

A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”

Third Circuit Unpersuaded That a Need to Pay Restitution to Microsoft Justifies a Variance From the Sentencing Guidelines

In United States v. Kononchuk, No. 06-2484, (3d Cir. May 8, 2007), the Third Circuit vacated the defendant’s sentence and remanded for resentencing, finding that the district court’s sentencing variance below the Guidelines was unsupported by a “meaningful consideration” of the §3553(a) factors and failed to address the government’s specific, meritorious concerns and objections raised during sentencing.

For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.

Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.

Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.

The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”

Friday, May 18, 2007

Sentence Reversed for Ex Post Facto Violation Citing Pre-Booker Precedent

In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.

The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."

Sunday, May 06, 2007

Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court

In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.

Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.

The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.