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Tuesday, October 30, 2007

Rule of Lenity Applied to Definition of "Antique Firearm" in Unregistered Shotgun Case

In United States v. Introcaso, __ F.3d __, 2007 WL 3104382 (filed October 25, 2007), the Court reversed the defendant’s conviction for possessing an unregistered firearm – a 19th-century shotgun that had been hanging in his living room, holding that the definition of "antique firearm" under the statute, 26 U.S.C. § 5845(g), is ambiguous and applying the rule of lenity in favor of the defendant.

The parties agreed that the shotgun was manufactured before 1898, and also agreed that its measurements met the statutory requirements for a firearm. The case turned on the language in the definition exempting firearms "using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade." The government argued that although the 18.2-millimeter shot made for guns like the defendant’s is no longer available, the gun could fire 12-gauge shotgun shells, which are currently commercially available.

The Court found that the term "for" in the phrase "for which ammunition is no longer manufactured" is susceptible to two readings: specifically designed for or able to be used in. The statutory purposes – regulation of guns to control violence and avoiding undue burdens on museums and collectors – do not favor one reading over the other. The Court rejected the analysis of a Second Circuit case, United States v. Tribunella, 749 F.2d 104, 109 (2d Cir. 1984), which concluded that it was "more likely" that Congress intended to prioritize decreasing gun violence and applied the second reading (able to be used in). In so doing, the Court discussed the rule of lenity at length, decided not to "guess" at the meaning of the statute, and held that because the ammunition specifically designed for this shotgun was no longer manufactured, it was an antique firearm and did not need to be registered.

Judge Ackerman, district judge sitting by designation, dissented on the basis that "the Second Circuit’s reasonable construction of § 5845(g) . . . comports with the statute's plain text and congressional intent."

The Court rejected the defendant’s sufficiency of the evidence challenge to a second count charging possession of unregistered destructive devices (hand grenades) because although Introcaso had been barred from going to the house where the items were discovered due to a protective order, he was the lessee of record, had occupied the house as recently as a week before, had been seen with similar devices, and his wife’s keys did not work to open the locked cabinet in which the items were stored. The Court also rejected the defendant’s challenge to the reasonableness of his 46-month sentence because the district court complied with the Gunter three-step process.

Adverse Fourth Amendment Holdings -- Frisk Justified, "Plain Feel Doctrine" Applied

In United States v. Yamba, __ F.3d __, 2007 WL 3054387 (filed October 22, 2007), the Court issued two Fourth Amendment holdings adverse to the defendant. Yamba was tried and convicted for wire fraud, based on evidence including several pieces of paper with what appeared to be credit card numbers written on them. These papers were discovered on his person during an inventory search at the police station following his arrest for possession of marijuana. He had moved to suppress the papers on two grounds: First, that the police were not justified in conducting the frisk that led to the discovery of the marijuana; and second, that the search that led to discovery of the marijuana went beyond a Terry "frisk" because the officer manipulated the bags of marijuana in Yamba’s pocket.

The Court held that the stop was justified because Yamba was sitting in a van that was parked in an odd and obstructive manner; the driver of the van was holding a pocket knife; Yamba and the other passenger made furtive gestures; there was an outstanding arrest warrant for the driver; and the police were outnumbered.

The Court also upheld the frisk under the "plain feel" doctrine approved by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). The plain feel doctrine permits an officer to slide or manipulate an object in a suspect’s pocket until the officer is able reasonably to eliminate the possibility that the object is a weapon. If, before that point, the officer develops probable cause to believe that the object is contraband, he may lawfully perform a more intrusive search and may seize any contraband discovered. Here, the Court relied on the district court’s finding that the officer reasonably suspected that the object was marijuana based on it’s "soft, spongy-like" nature and the "small buds and seeds" that he felt. It held, "While one may reasonably question the veracity of Officer Livingstone’s testimony, it was credited by the District Court. Were we the fact-finder, we may not have done the same; but we cannot say that the Court’s finding was clearly erroneous." The Court "purposely [did] not rely on the precision of Officer Livingstone’s testimony that he reached his conclusion within "a half second," noting that the more important inquiry is whether the officer "conducted anything beyond a routine frisk until after there was probable cause to search more intrusively."

Denial of Rehearing En Banc in United States v. Ricks

The Third Circuit recently denied the petition for rehearing en banc in United States v. Marc Ricks, No. 05-4833 (denial filed October 22, 2007), the recent case in which the Court vacated the sentences of two brothers because the district court, in setting their sentences, disagreed with the advisory Sentencing Guidelines regarding the crack/powder differential. Judge Ambro dissented, calling Ricks contrary to Rita and Gunter. Of course, as Judge Ambro notes, "the Supreme Court is on the cusp of deciding the very issue Ricks presents – the effect of the crack/powder cocaine differential in sentencing under a now-advisory scheme," in Kimbrough v. United States, which was argued earlier this month.

Friday, October 05, 2007

Rule 35(a)’s Time Limits on Correcting Sentencing Error Held to Be Jurisdictional

The defendant in United States v. Higgs, No. 06-3738 (filed October 4, 2007), was sentenced January 5, 2005, one week before the Supreme Court decided United States v. Booker,543 U.S. 220 (2005) , on June 12, 2005. His judgment was not entered until June 14, 2005. On that same day, rather than filing a direct appeal to the Third Circuit, the defense counsel moved for a reduction of his sentence under Rule 35(a), noting in an attached affidavit that Booker made the guidelines advisory.
Rule 35(a) provides, "Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."
On January 24, 2005, the District Court conducted a telephone conference on the motion, at which Higgs was not present. The court set forth reasons explaining why the originally imposed 156 month sentence was reasonable in light of Booker. No briefs had been filed by defense counsel, no hearing was held, and again, the defendant was not present.
In a letter dated February 3, 2005, defense counsel informed the District Court that Higgs had heard of the District Court’s denial and wanted to appeal. The District Court did not receive Higgs’ hand-written notice of appeal until months later. The Third Circuit had previously remanded this case to the District Court to determine whether counsel’s letter should be construed as a notice of appeal. The District Court granted Higgs’ motion "for leave to appeal the Court’s order denying his motion for reconsideration of sentence nunc pro tunc . . . ."
In this appeal, the Third Circuit examined the plain language of Rule 35 as well as its history and purpose and concluded that its time limits are jurisdictional . Rule 35(a) requires that any correction for "clear error" be made "[w]ithin 7 days after sentencing." Sentencing is defined as "the oral announcement of the sentence" (and not the entry of judgment). Counsel’s motion was filed on the 7th day. But the rule applies to the district court’s action.
The Advisory Committee notes explain that the authority of the district courts to correct a sentence was intended to be very narrow and to extend only to cases in which an obvious arithmetical, technical or other clear error occurred. It was not to serve as a means of collateral attack.
The Advisory Committee further noted that the "stringent time requirement" of seven days was shorter than the time for appealing the sentence to enable the defendant to file a timely appeal if he chose do so.
Thus, the District Court was without jurisdiction to enter its January 24, 2005 order. But because Higgs did not directly appeal the entry of judgment, but instead appealed the order denying his Rule 35(a) motion , the Third Circuit did not remand for resentencing. Instead, the Court vacated the district court’s January 24, 2005 order, left the judgment and sentence intact, and dismissed the appeal.
In a footnote, the Court leaves upon the question whether Higgs’ counsel’s decision to file a Rule 35 motion, rather than directly appealing Higgs’ sentence, gives rise to a valid ineffective assistance of counsel claim under 18 U.S.C. § 2255.

Tuesday, October 02, 2007

Police Failed To Scrupulously Honor Defendant's Fifth Amendment Right/Defendant's Silence Inadmissible As Adoptive Admission

In United States v. Lafferty, No. 06-1901 (3d Cir. September 28, 2007), the Third Circuit reversed the district court’s order denying Amy Lafferty’s suppression motion, which challenged statements that she and an alleged confederate made during a custodial interrogation.

Facts: An ATF agent contacted Lafferty and David Mitchell, her boyfriend, to arrange an interview about a burglary. Lafferty and Mitchell agreed to go to the police station. Upon arrival, the police placed Lafferty and Mitchell in different interrogation rooms for questioning. In Lafferty’s room, the ATF agent produced an ATF Waiver of Right To Remain Silent and of Right To Advice of Counsel form, and Lafferty signed both sections of the form. The agent questioned Lafferty for four hours, but she did not respond to most of the questions. When she did respond, she denied any involvement. Eventually, Lafferty asked to go home, but her interrogation continued for fifteen minutes. She agreed, however, to return within two days. Five days later, police officers arrested Lafferty on an outstanding, unrelated warrant and took Mitchell into custody.

At the police station, Lafferty and Mitchell were again placed in different interrogation rooms. Lafferty again signed both sections of the ATF form, denied involvement in the burglary and stated, "[I]f you’re going to charge me, charge me. I’m not going to sit here for four to five hours like last time." The interrogation ceased, and police officers put Lafferty into another room for two hours while Mitchell’s interrogation continued. Mitchell’s interrogation ended when he asked to speak to an attorney. The police transported Lafferty and Mitchell to the courthouse for arraignment. Mitchell, however, told the officers that they would tell the police about the burglary if they took him and Lafferty back to the police station and let them talk privately. The troopers agreed to the arrangement. Lafferty, however, remained silent and never agreed to speak with the police.

Police officers took Lafferty and Mitchell back to the police station without being arraigned, and placed them in a small room by themselves. After fifteen minutes and three police interruptions, Mitchell told the ATF agent that they were ready to talk, but that he and Lafferty wanted to speak to police together. Before questioning, police advised Lafferty and Mitchell of their Miranda rights. Mitchell retracted his request for counsel, and was asked to sign the statement of rights section of the ATF form. Lafferty did not sign the ATF form or verbally waive her right to remain silent. During questioning, Mitchell answered most of the questions and, in doing so, incriminated himself and Lafferty. Lafferty was silent for most of the interrogation, but occasionally explained or clarified Mitchell’s answers and nodded in agreement with some of Mitchell’s answers. It was not clear, however, which of Mitchell’s statements Lafferty assented to in this manner. After the interrogation, Mitchell and Lafferty left the police station without any charges being filed.

Lafferty was indicted for violating 18 U.S.C. §§ 922(u), 924(i)(1) and (2). Lafferty filed a motion to suppress statements she made in response to agent questioning during the last interrogation, and Mitchell's statements that implicated her in the burglary. The district court granted Lafferty’s motion in part, and denied it part. The court determined that Lafferty did not speak to police from the time she invoked her right to remain silent until she responded to the ATF agents' questions during the last interrogation. The court, however, concluded that she implicitly waived her Fifth Amendment privilege against self-incrimination by participating in the last interrogation, answering, clarifying or explaining Mitchell’s statements and failing to deny Mitchell’s statements that implicated her. The court also held that Lafferty had adopted Mitchell’s statements as her own pursuant to FRE 801(d)(2)(B), but ultimately determined that admitting them would violate her right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).

The government requested reconsideration of the ruling, and the district court agreed that the government had proven by a preponderance of the evidence that Lafferty’s silence in the face of Mitchell’s incriminating statements established her intent to adopt his statements. The court, however, cautioned that the ultimate determination as to whether Lafferty made an adoptive admission must be left to a jury using a reasonable doubt standard. In making this determination, the court concluded that if the jury determined that Mitchell’s statements were adoptive admissions of Lafferty, the Sixth Amendment right to confrontation would not be violated. Lafferty subsequently entered a conditional guilty plea, and the court sentenced her to thirty-seven months imprisonment. Lafferty appealed.

Analysis: The Third Circuit first determined that the police officers failed to scrupulously honor Lafferty's privilege against self-incrimination. The court stated that Mitchell had no authority to waive Lafferty's Fifth Amendment privilege for her, and the police should not have ignored the obvious fact that the joint interrogation would likely force Lafferty to either react to Mitchell's statements or suggest her assent to those statements by remaining silent while he incriminated her in a conspiracy.

Relying on Michigan v. Mosely, 423 U.S. 96 (1975) and its progeny, the Court reasoned that Lafferty could not be placed between such a constitutional rock and Fifth Amendment hard place unless she placed herself there by a valid Miranda waiver. The court determined that no such waiver existed, and that it could not infer, under the circumstances, that Lafferty waived the right to remain silent merely because she was willing to go into the interrogation with Mitchell. The court also stated that it was not Lafferty’s decision to go into a room to speak with Mitchell privately when they returned, and she neither asked to be interrogated with him nor agreed to the procedure. The Court found that although she apparently relented to Mitchell’s request, more was required to waive a constitutional rights under these circumstances.

After applying the factors expressed in Mosely to aid the determination of whether Lafferty's rights were scrupulously honored, the Court held that the circumstances demonstrated that the police did not scrupulously honor Lafferty's Fifth Amendment right to remain silent. The Court noted that, under Miranda, the onus was not on Lafferty, who had been steadfast in maintaining her silence, to be persistent in her demand to remain silent, but rather, on law enforcement officers to scrupulously respect her demand. The officers were not justified in proceeding as if Lafferty had knowingly and voluntarily waived the right that she had previously asserted.

The Court also determined that Lafferty’s silence and failure to deny Mitchell’s statements could not be admitted as adoptive admissions. The Court stated that the district court’s reasoning would virtually eliminate the right to remain silent because a suspect’s silence in the face of incrimination would be transformed into substantive evidence of guilt. The Court stated that it is impermissible to penalize a defendant for invoking her Fifth Amendment privilege during a custodial interrogation, and the district court’s reliance on Rule 801(d)(2)(B) was misplaced. Thus, neither Miranda, nor its progeny, limit the exclusion of a defendant’s silence during a custodial interrogation to specific procedural or tactical contexts. The Court held that a court errs in allowing the government to use a criminal defendant’s silence in the face of police interrogation. The Court did not reach the Sixth Amendment issue.