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Showing posts from 2008

Prosecutorial Misconduct for AUSA to Introduce "extensive evidence" of Uncharged Drug Use and Transactions -- Even Under Plain Error Standard

United States v. Morena, No. 07-1297 (Nov. 19, 2008). Morena appealed his conviction for felon-in-possession and possession of an unregistered, sawed-off shotgun. He appealed on several grounds, but prevailed on his claim that the government’s injection into the trial of extensive evidence of uncharged drug use and transactions, as well as evidence of his prior non-felony convictions, amounted to prosecutorial misconduct and plain error.

There is great language in this opinion about the prosecutor’s duty as the representative of a sovereign, the danger of admission of uncharged misconduct, the sufficiency of evidence in gun prosecutions, and the limited value of curative instructions.

The district court had approved the admission of a limited amount of drug evidence under 404(b) to show motive and to set the context for the arrest. As the Court wrote, however, "the government repeatedly exceeded its pretrial proffer, systematically injecting inadmissible drug evidence into the two-…

No Bruton Violations in Bench Trials

Johnson v. Tennis, No. 07-1968 (3d Cir. Nov. 19, 2008). The first paragraph of this opinion (almost) says it all:

"This appeal by Gary Johnson from the denial of his petition for habeas corpus by the District Court of the Eastern District of Pennsylvania requires us to decide an issue of first impression in this Circuit: Do the teachings of Bruton v. United States, 391 U.S. 123 (1968), apply to a bench trial in a criminal proceeding? Bruton and its progeny established that in a joint criminal trial before a jury, a defendant’s Sixth Amendment right of confrontation is violated by admitting a confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. See id.; Richardson v. Marsh, 481 U.S. 200, 211 (1987); Cruz v. New York, 481 U.S. 186, 193-194 (1987). We hold that the Bruton rule is inapplicable to the incriminating confession of a nontestifyingcodefendant in a joint bench trial. By its own terms, Bruton app…

Defendants not required to re-raise sentencing issues at end of sentencing hearing to avert plain error review

In United States v. Sevilla, 07-1105 (3d Cir. Sept. 4, 2008), the Third Circuit clarified what defendants must do to avert plain error review of sentencing issues. The Court held that where a defendant squarely raises a sentencing issue both in his sentencing memorandum and again at the sentencing proceeding, the defendant is not required to re-raise those issues or otherwise object to the district court's explanation of its sentence in order to avert plain error review.

The Court proceeded to review the defendant's sentence for reasonableness and ultimately vacated defendant's sentence and remanded for resentencing because instead of addressing the defendant's sentencing issues, the district court merely stated that it had considered the 18 U.S.C. § 3553(a) factors and provided no further comment or analysis. The Third Circuit concluded that the record did not indicate that the district court gave meaningful consideration to the 18 U.S.C. § 3553(a) factors.

Reasonable suspicion is required to justify border search of cruise ship passenger's cabin

In a matter of first impression, the Third Circuit ruled in United States v. Whitted, 06-3271 (3d Cir. Sept. 4, 2008) that reasonable suspicion was required to justify a border search of a passenger cabin on a cruise ship arriving in the United States from a foreign port. The Court found that a passenger's private living quarters while on a ship were more akin to an individual's home than an automobile and, therefore, were entitled to more rigorous Fourth Amendment protection. As such, a search of a cruise ship passenger's cabin at the functional equivalent of a border constituted a non-routine border search which must be supported by reasonable suspicion.

Applying this standard, the Third Circuit concluded that reasonable suspicion existed to support the search in this case. Customs officials had a particularized and objective basis to suspect that defendant was involved in drug smuggling where cruise ship traveled to drug source countries, defendant had previously travele…

Third Circuit discusses procedures for declaring a mistrial based on a deadlocked jury

In United States v. Wecht, 08-2258 (3d Cir. Sept. 5, 2008), the Third Circuit identified the ideal procedures a district court should follow before declaring a mistrial based on a deadlocked jury by referring to the Court's recently adopted Model Jury Instructions, specifically Instruction 9.05 (Deadlocked Jury - Return for Deliberations) and Comment 9.06, which details the Committee's recommended procedure for declaring a mistrial based on a deadlocked jury. The procedure includes: (1) determining whether a supplemental charge is necessary, (2) questioning each juror, (3) excusing the jury and conducting a hearing with counsel and the defendant, and (4) calling the jury back to the courtroom and discharging the jury.

The district court in this case did not follow the ideal procedure because it never questioned the jurors regarding the deadlock. Nor did the court provide counsel with the opportunity to argue the merits of declaring a mistrial as required by Fed.R.Crim.P. 26.3. …

Admissibility of Redacted Proffer Statement Violates Confrontation Clause But Constitutes Harmless Error

In United States v. Hardwick et al, (3d Cir. October 3, 2008), the Court of Appeals held that the admission into evidence of a redacted proffer statement, after the close of the Government’s case-in-chief, violated defendants’ constitutional rights under the Confrontation Clause; however, use of the proffer statement was harmless error. Furthermore, the Government conceded that the sentences for three of the four defendants should be reduced to only one § 924(c) conviction each.

During the course of the investigation Defendant Murray entered into a proffer agreement with the Government. Under this agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the Government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception if the Government needed "to rebut any evidence or arguments offered on [Murray’s] behalf." During two proffer sessions, Murray a…

Third Circuit finds evidence insufficient to support conviction for harboring; upholds seizure based on anonymous tip

On September 9, 2008, the Third Circuit issued its decision in United States v. Silveus, Case No. 07-3544.  It focused on two issues raised by the appellant, Rozaline Silveus: Whether the evidence was sufficient to support her conviction for harboring an illegal alien (her boyfriend, Dorsainvil Jean), and whether ICE agents' seizure of her -- and the search that followed -- was constitutional.
The Third Circuit held that the government's evidence was insufficient to convict Ms. Silveus of harboring Mr. Jean.  As the Court observed, the evidence supporting the harboring charge was limited to the following:  As ICE agents approached Ms. Silveus's house, they heard a door slam and some bushes break.  Then, as they went to the front door, they saw Ms. Silveus close that door and open a window.  In response to the agents' questions, Ms. Silveus said that Mr. Jean was not there, that she did not know whether anyone had just left her home, and that the agents could not enter t…

Failure to Advise Defendant of Mandatory Minimum Sentence Prior to Pleading Guilty Renders Plea Involuntary

In Jamison v. Klem, No. 07-1045 (3d Cir. September 30, 2008), the Court of Appeals held that failure to advise a defendant of an applicable mandatory minimum sentence prior to pleading guilty renders the plea not knowing, voluntary and intelligent. The Court of Appeals reversed the district court’s denial of Jamison’s habeas petition challenging the validity of his guilty plea on those grounds and directed the district to grant a conditional writ.

Jamison pleaded guilty to a drug charge in York County, Pennsylvania, which carried a mandatory minimum sentence of 5 years imprisonment. The record established that Jamison was not advised of the mandatory minimum anytime prior to entering his plea. The first time Jamison learned he was subject to a mandatory minimum sentence was at his sentencing hearing where the mandatory minimum of 5 to 10 years of imprisonment was imposed. Rather than filing a direct appeal, Jamison collaterally attacked his guilty plea by filing a petition pursuant…

Cannot Exclude Personal Use in Determining Weight Involved in Conspiracy & Prior Testimony of Witness Admissible Since Trial Testimony Evasive

[This case summarized by Leo Latella.]

In United States v. Iglesias, 535 F.3d 150 (3d Cir. 2008) , the Court of Appeals held, in addressing two issues of first impression, that a defendant convicted of conspiring to distribute drugs is not entitled to exclude an amount for personal use in determining the total quantity of drugs involved in the conspiracy. Additionally, as a matter of first impression in this Circuit, the Court held that a witness’ prior testimony at a suppression hearing was admissible at trial under Fed.R.Evid. 801(d)(1)(A), when his trial testimony was evasive on the same subject matter. Lastly, Court of Appeals rejected Iglesias’ contention that his drug conspiracy and possession of a firearm in furtherance of a drug trafficking crime were not supported by sufficient evidence.

Prior to Iglesias’ arrest, an individual who later became a cooperating witness was arrested and found with a small quantity of methamphetamine. The cooperator stated that he purchased the met…

Court of Appeals Reverses District Court's Grant of Suppression Motion

[This case summarized by Leo Latella.]

In United States v. Torres, 534 F.3d 207 (3d Cir. 2008) , the Court of Appeals reversed the district court’s grant of defendant’s suppression motion and held that police officers had sufficient reasonable articulable suspicion to initiate a traffic stop of a vehicle described by an unidentified cab driver who called 911 and stated that he saw the driver of the vehicle brandish a handgun at a gas station. The cab driver called 911 from his cell phone and reported that he had just seen the driver of a silver BMW flash a gun at a rose vendor near a gas station. The caller was following the BMW during the call and gave detailed information regarding the vehicle including its make, model, color, license plate number, its location and identified the driver as an Hispanic male. The 911 call was made at 2:59 p.m. At 3:02 p.m. the call was dispatched to officers and at 3:07 p.m. the car was stopped and Torres was found to be in possession of a fully-loaded…

United States v. Goldberg, 538 F.3d 280 (3d Cir. 2008).

The defendant in Goldberg ran a business that sold veterinary grade prescription drugs to horse owners without proof of a prescription. The government charged him with, inter alia, possessing the controlled substance Stanozolol with the intent to distribute, and various misbranding charges. Following conviction by a jury on all counts, the defendant appealed, challenging various aspects of his convictions as well as the application of certain guideline provisions at setencing.

1. Whether possession of a controlled substance required the actual possession to be illegal as well as the intent to distribute - During deliberations, the jury asked a question that essentially inquired whether it needed to find that the defendant's "possession" of Stanozolol was illegal as well as his intent to distribute. Despite the defendant's claim that the term "possession" in the statute "implied" that the possession must be illegal, the district court instructed…

Sufficiency/Knowledge of Conspiracy's Object and Brady/Evidence Possessed by Foreign Sovereign

[This case summarized by Felicia Sarner.]

US v. Reyeros, 537 F.3d 270 (3d Cir. July 31, 2008). Reyeros, a former customs inspector, was convicted of conspiring to transport cocaine into the United States. The government's case relied in part on a cooperating witness who was initially detained in Columbia and opposed extradition. Reyeros requested documents the witness filed with Columbian authorities opposing extradition, arguing that he was entitled to them under Brady and Jencks. The Circuit found the evidence was sufficient to prove that Reyeros was aware that the purpose of the conspiracy was to import cocaine. It also found that the requested documents were not and had never been in the possession of the United States government, and that Columbia was not acting on behalf of or under the control of the United States, nor was it part of a joint investigation. The relevant factors when considering a federal prosecutor's constructive knowledge of Brady material are whether th…

Appellate Waiver of Direct/Collateral Review

[This case summarized by Felicia Sarner.]

US v. Mabry, 536 F.3d 231 (3d Cir. July 28, 2008). Mabry's guilty plea agreement, in which he pled guilty to the drug charge in exchange for dismissal of the remaining charges, included an appellate waiver of direct and collateral review. After his sentencing, he filed a habeas petition alleging that counsel was ineffective for failing to file a direct appeal, which the district court denied without a hearing. The Third Circuit granted a certificate of appealability as to whether the waiver was knowing and voluntary, whether it is enforceable, and whether Mabry was entitled to relief on the claims he asserts should have been raised on direct appeal. The Circuit found the direct appeal and collateral review waivers to be knowing and voluntary, and although the district court's colloquy did not elaborate on the miscarriage of justice exception, enforcement of both waivers did not work a miscarriage of justice. Mabry raised only insubstant…

Ineffective Assistance / Jury Trial Waiver

[This case summarized by Felicia Sarner.]

US v. Lilly, 536 F.3d 190 (3d Cir. July 28, 2008). Since the evidence in this drug case relating to the motion to suppress was virtually identical to the trial evidence, the parties agreed to proceed with a non-jury trial and the district judge heard the pre-trial hearing and bench trial together. Before proceeding, the parties confirmed orally their desire to proceed in this manner, but the judge did not directly colloquy Lilly about his jury trial waiver. Lilly was convicted, and subsequently filed a habeas petition alleging ineffective assistance based upon counsel's alleged failure to properly advise him of his right to a trial by jury. The district court denied the petition without granting Lilly an evidentiary hearing. The Third Circuit affirmed after reviewing for abuse of discretion. In considering the Strickland prejudice prong, the proper inquiry is whether, "in the absence of counsel's advice, another fact finder (i.e., …

Failure to raise a suppression argument (not just a motion) before the district court equals waiver.

In United States v. Rose, 538 F.3d 175 (3d Cir. 2008), the Third Circuit held that failure to raise specific suppression arguments before the district court amounts to waiver and not just forfeiture. The defendant, who proceeded pro se at trial, filed a motion to suppress certain evidence, putting forth four arguments in support of his claim. The district court denied the motion.

On appeal, now represented by counsel, the defendant appealed the district court's denial of the motion to suppress, but this time asserted a basis for the motion not raised before the district court. Recognizing that the issue called into question the interplay between Fed.R.Crim.P. 12 (which would consider the argument waived) and 52(b) (which would have called for a plain error analysis), and recognizing that its own precedent at times supported one conclusion or the other, the Court definitively stated that Rule 12 controlled the matter, and required a finding of waiver unless the defendant could sh…

Third Circuit Affirms One Variance to Probation; Reverses Another

Sentence Affirmed:

In United States v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008), defendant was convicted of two counts of wire fraud. At sentencing, the district court granted a variance from the recommended Sentencing Guidelines range of 18 to 24 months’ imprisonment and sentenced him to two years’ probation (including three months’ home confinement). In imposing sentence the district court stated that such a sentence best served the considerations of § 3553(a) and articulated numerous reasons: (1) Howe “led an honorable and lawful life until this point” and had no prior criminal history; (2) Howe “served in the U.S. Military for 20 years”; (3) Howe was a “well-regarded member of [his] community”; (4) Howe “regularly attend[s] church”; (5) Howe was a “devoted husband, father, and son”; (6) Howe made but an “isolated mistake” in committing his crime; and (7) Howe was remorseful at sentencing.

The government appealed. In affirming, the Circuit rejected the government’s claims o…

District Court's errors in admitting hearsay statement as present sense impression and defendant’s un-Mirandized admissions were not harmless.

Defendant Artega Green was convicted by a jury of one count of distribution of crack cocaine, in violation of 21 U.S.C. § 841. The evidence offered by the Government at trial consisted of: (1) the testimony of two DEA agents; (2) an audio recording in which the CI called a cell phone number "associated with" Green and ordered 3 ounces of crack; and (3) a video in which the CI allegedly engaged in a drug transaction with Green. The video was of poor quality and only briefly depicted the profile of the alleged perpetrator.

Admission of CI’s Statement: The crux of the Government’s case was proving that Green was the individual captured on its audio and video evidence. It sought to do this exclusively through the testimony of the DEA agents. The CI testified as the sole defense witness and stated that Green was not the person depicted in the video. The CI also testified that the DEA agents used him before in an attempt to catch Green on video selling drugs, but that those attempt…


Robert J. Stevens was convicted of violating 18 U.S.C. § 48, a statute which prohibited the creation, possession or sale of depictions of animal cruelty with the intent to place the depiction in interstate commerce for profit. In United States v. Stevens, No. 05-2497, the Third Circuit, sitting en banc, ruled 18 U.S.C. § 48 unconstitutional under the First Amendment. Stevens had initially moved to have his indictment dismissed on the premise that 18 U.S.C. § 48 was an infringement on his right to free speech, but his motion was rejected and he was ultimately convicted by a jury and sentenced to 37 months imprisonment. On appeal, the circuit court overturned Stevens’ conviction. Stevens’ initial case was the first prosecution under this statute and similarly his appeal was the first constitutional review of the statute.

In ruling that 18 U.S.C. § 48 was unconstitutional, the Third Circuit found that depictions of animal cruelty did not fit into any of the existing categories of unprotec…

Court Rejects Habeas Petition Challenging Parole Commission’s Procedures

[This case summarized by Ahmed Soliman, legal intern, Eastern District of Pennsylvania.]

In Christopher Furnari v. U.S. Parole Commission, No. 07-2853 (3rd Cir. July 9, 2008), the Third Circuit Court of Appeals considered, and ultimately affirmed, an appeal of the lower court’s rejection of a habeas corpus petition for Christopher Furnari, a consigleire of the Lucchese crime family who complained that, in denying him parole five separate times, the Parole Commission mis-applied the law.

Furnari argued that (1) the Parole Commission violated the Sentencing Reform Act, 18 U.S.C. § 235(b)(3), when it scheduled a rehearing date after the Commission’s authority expired; (2) that the denial of parole was based on an improperly-calculated offense severity rating; and (3) that the Commission failed to give adequate weight to certain mitigating information.

The Court denied the Sentencing Reform Act challenge, holding that because Congress extended the life of the Parole Commission, the hearing w…

Immigration judge abused discretion when motion for continuance was denied as a result of delay caused by Department of Homeland Security

[This case summarized by Ahmed Soliman, legal intern, Federal & Community Defender for the Eastern District of Pennsylvania.]

In United States v. Hashmi, No. 06-3934, (3rd Cir. July 7, 2008), the court addressed whether an immigration judge abused his discretion after denying a continuance, agreed to by the government, simply because the case was pending for a period of time longer than the 18 months suggested by the "case completion goals" set by the Department of Justice, despite the fact that the Department of Homeland Security was the cause of the case’s delay, and not the defendant.

The court ruled that the immigration judge did indeed abuse his discretion, stating that the case completion goals were merely a guide, not a rule that should trump consideration of the individual circumstances of each case. In the case of Hashmi, the court found that the circumstances causing a delay in the case proceedings were "absurd" since one division of the Department of H…

Government's Use of Defendant's Former Lawyer as Confidential Informant Not "Outrageous"

In United States v. Hoffecker, No. 06-3190, (3d Cir. June 16, 2008), the Third Circuit issued a 103- page opinion primarily to address two issues: Did the District Court err in admitting the testimony of defendant’s former attorney and (2) was the prosecution time-barred?

Hoffecker and a co-defendant set up an investment company located in the Bahamas purportedly to sell commodities. The opinion details the elaborate telemarketing investment scam.

The Government employed Jack Field, Hoffecker’s one-time lawyer and friend, as an informant. Hoffecker argued this was so outrageous that it violated Due Process.

The opinion explains at length that the two had been out of contact for 3 years. When they met again, Field clearly and repeatedly stated he would not act as lawyer in this new deal and that he no longer practiced law. There was no retainer, and no legal fees were charged. During the course of the investigation, the Government, which was aware of the potential attorney-client relation…

Unpaid Taxes Found to Be “Proceeds” of Mail Fraud

In United States v. Yusef, No. 07-3308, (3d Cir. June 17, 2008), the Third Circuit considered a narrow issue: Whether unpaid taxes, which were unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, are "proceeds" of mail fraud for purposes of sufficiently stating a money laundering offense under the federal, international money laundering statute, 18 U.S.C. § 1956(a)(2).

This was a government appeal from a pretrial order dismissing from the indictment various counts and allegations based on international money laundering.

The relevant statute requires businesses to file monthly reporting of gross receipts and to pay a 4% tax on those receipts. The mails were used for filing and payments.

The defendants here would collect the daily sales receipts, count the cash, and deposit, report and pay taxes only on a portion of the cash. From 1996 to 2001, tens of millions of dollars in cash was withheld in this manner.

The District Court found …

Third Circuit Examines United States v. Gunter In Light of Supeme Court's Sentencing Jurisprudence

In United States v. Gunter, No. 07-1291, (3d Cir. June 9, 2008), the Third Circuit discussed the impact of the Supreme Court's recent sentencing cases on its precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which set forth the following three-step process that district courts must use for sentencing:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before United States v. Booker, 543 U.S. 220 (2005).
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account the Circuit's pre-Booker case law, which continues to have advisory force; and

(3) Finally, courts are required to exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculat…

Third Circuit clarifies appellate procedure and substantive sentencing rules (including an issue of first impression) in favor of defendants

In United States v. Miller, No. 06-5187 (3d Cir. June 2, 2008), Miller had been found guilty at trial of receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) & 2252A(a)(5)(B), respectively. The District Court entered guilty verdicts on both counts, and sentenced Miller to concurrent 46-month prison terms. In calculating the advisory Sentencing Guidelines range, the District Court found that Miller had committed perjury during trial based on testimony about his adult pornography collection, and therefore applied a two-level enhancement for obstruction of justice.

On appeal, the Third Circuit vacated the District Court’s judgment and remanded for re-sentencing. Although the Court, in a 2-1 decision, found that the trial evidence was sufficient to uphold Miller’s conviction for receiving pornography, the Court unanimously accepted Miller’s argument that the Double Jeopardy Clause barred convictions for both receiving and possessing the same images (Mill…

Customs and Border Protection Officer's Haboring Conviction Reversed While Bribery Conviction Upheld

In United States v. Ozcelik, No. 06-4245 (3d Cir. May 27, 2008), the Court of Appeals decided, as a matter of first impression, what constitutes "shielding, harboring, and concealing an alien within the meaning of 8 U.S.C. § 1324. The defendant, Ozcelik, a naturalized US citizen originally from Turkey, was a Customs and Border Protection Officer in the Department of Homeland Security. A Turkish student whose visa expired was put into contact with Ozcelik by a mutual acquaintance and told that Ozcelik could help him remain in the United States. Ozcelik advised Tuncer that Ozcelik had contacts with the then INS and that for $2,300 something could be done "from the inside" that would extend his visa. Tuncer began cooperating with the Government and participated in recorded telephone conversations with Ozcelik regarding the resolution of his immigration problems in exchange for $2,300. A controlled meeting was also arranged where Tuncer gave the money to Ozcelik along with …

Possession charge effectively covered “mere presence” issue; Prosecutor asking why officers would risk careers was not improper vouching.

U.S. v. Weatherly, No. 07-1019, 2008 WL 850005, (3d Cir., Mar.31, 2008)(published May 13, 2008). Weatherly was charged with being a felon in possession of a firearm. It was alleged that the gun was found on Weatherly as he was being arrested on another matter. At trial, Weatherly contested the issue of possession, arguing that the officers found the firearm in the alley nearby, assumed it was his, and lied about where it was actually found. Counsel pointed out discrepancies in the officers’testimony and offered evidence that it was common to find abandoned guns in the alley where he was arrested. He also offered witnesses who testified that Weatherly was not carrying a gun while in their presence earlier that day.

In closing argument, Weatherly conceded that he was only contesting the issue of whether he “possessed” the gun, and argued that his guilt hinged upon the credibility of the officers. In rebuttal, the government argued that Weatherly failed to show any reasons why the officer…