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Showing posts from October, 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,…

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 passen…

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.

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 de…

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 …