Tuesday, November 25, 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-day trial." Indeed, the district court admonished the government repeatedly over the presentation of such evidence: serious heroin dealing not connected to Morena (twice); violation for probation due to drug use; and history of drug use (three times).

The government attempted to defend the conviction on the basis that the evidence of Morena’s guilty was "firm and sufficient." The Court found that the evidence "boil[ed] down" to the testimony of one witness who had "credibility issues," and "a few pieces of circumstantial evidence." The Court noted that, "[i]n such a case, improper suggestions and insinuations ‘are apt to carry much weight against the accused when they should properly carry none.’"

The Court was also critical of the district court’s limiting instructions. Only one was given during trial. After its initial reprimand, the district court halted testimony to advise the jury to remember that Morena was on trial for guns not drugs. In its jury instructions, the court repeated, "[Morena] is only on trial for these two counts and no other criminal conduct that has been mentioned or alluded to." The Court characterized these instructions as weak, AND added "[m]oreover, even a very strong jury instruction to disregard a prosecutor’s conduct may nevertheless result in a denial of due process where, as here, the evidence is marginal and the prejudicial conduct significant."

Great win by Renee Pietropaolo of the Federal Public Defender for the Western District of Pennsylvania.

NB: The Court also gives a several-page reminder that conflict of interest and ineffective assistance claims are generally not cognizable in the first instance on direct appeal.

On the sufficiency issue, check out the recent Ninth Circuit decision in United States v. Perez, in which the Court reverses a gun conviction because, "[w]here there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Note that the defendant in Perez was found sleeping with one gun in his lap and another leaning against his knee! For more, see http://circuit9.blogspot.com/

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 nontestifying codefendant in a joint bench trial. By its own terms, Bruton applies to jury trials only. In so deciding we agree with every United States Court of Appeals that has considered the question."

The Court "so decided" because "[w]e will not presume that a judge suffers from the same disability" as a jury in disregarding inadmissible evidence.

Expect fewer bench trials in cases with confessing co-defendants!

Monday, November 10, 2008

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 traveled to several known narcotics source countries, purchased his ticket just prior to ship's date of departure, may have paid for ticket in cash, and had record of felony drug convictions, and officials did not engage in profiling, but rather, authorities at port had found defendant's behavior suspicious and entered lookout for him into Treasury Enforcement Communications System (TECS) database.

Friday, November 07, 2008

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. Although the Third Circuit found that the district court had both failed to follow the proper procedure for declaring a mistrial and had violated Fed.R.Crim.P. 26.3, neither violation warranted an automatic dismissal of the Indictment. Instead, the Court considered the substantive question of whether the district court improperly declared a mistrial. In evaluating this question, the Court held that the district court's violation of Rule 26.3 did lessen the degree of deference it would accord the district court's finding of manifest necessity for declaration of mistrial. Even under this lower standard, however, the Third Circuit found that manifest necessity existed to declare a mistrial where the jury had deliberated for 54.5 hours over a period of ten days and had sent two notes indicating that they were hopelessly deadlocked. Accordingly, the Third Circuit affirmed the district court's declaration of mistrial and held that the defendant could be tried again without violating the Double Jeopardy Clause.

Wednesday, October 22, 2008

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 admitted to planning and participating in the slaying of two individuals. After the close of its case-in-chief, the Government moved in limine to introduce Murray’s proffer statements. Although Murray did not testify at trial, the Government argued that he breached the proffer agreement by attempting to elicit contradictory evidence, that he had a lesser role in those killings, through cross-examination. The terms of the waiver allowed the Government to use Murray’s proffer statements not only to cross-examine him, but also "to rebut any evidence or arguments offered on [his] behalf." The District Court granted the Government’s motion in limine finding that the cross-examinations conducted by Murray’s counsel contradicted the proffer statements and thus triggered the waiver. In order to address Confrontation Clause concerns raised by the other three defendants, the District Court ordered that all references to Murray’s co-defendants be redacted and replaced with neutral references such as "others" or "another person." The District Court also instructed the jury that it could consider the proffer statements only to assess Murray’s guilt and not the guilt of the other defendants.

The Court of Appeals first opined that the waiver clause in Murray’s proffer agreement was enforceable. The Court then determined that Murray triggered the waiver through his cross-examinations. Thirdly, the Court reasoned that the Government was not required to contemporaneously object to the cross-examinations, as the Government was exercising it contractual right under the proffer agreement and not lodging an objection to Murray’s line of cross-examination. Finally, the Court found that the other three defendants’ rights under the Confrontation Clause of the Sixth Amendment were violated because of the nature of the redaction of the proffer statements. The Court wrote that "the nature of the linkage between the redacted statement and the other evidence in the record is vitally important in determining whether a defendant’s Confrontation Clause right has been violated. Even redacted statements will present Confrontation Clause problems unless the redactions are so thorough that the statement must be linked to other evidence before it can incriminate the co-defendant." Assessing the "kind" of inference and not the "simple fact of inference" led the Court to conclude that the admission of Murray’s proffer statements violated the Confrontation Clause rights of Murray’s co-defendants." Nonetheless, the Court concluded that the evidence in this case was more than sufficient to support the jury’s verdict, even without the proffer statements, so the error was harmless beyond a reasonable doubt.

Furthermore, the Government agreed that the multiple consecutive sentence imposed on three of the four defendants under § 924(c) should be remanded with instructions to vacate all but one § 924(c) conviction each, in compliance with a Justice Department policy memorandum requiring a separate predicate offense for each § 924(c) charge.

Tuesday, October 21, 2008

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 to conduct a search.  There was no testimony or other evidence tending to show that Mr. Jean was present.  Therefore, the Third Circuit said, the evidence could not support the necessary inference that Ms. Silveus was concealing Mr. Jean from authorities.  It consequently reversed the district court's denial of Ms. Silveus's Rule 29 motion as to the harboring charge, and vacated her conviction thereon.
The Court was less accepting of Ms. Silveus's challenge to the constitutionality of ICE agents' seizure of her and search of her car.  The agents received an anonymous tip that Ms. Silveus and Mr. Jean were transporting illegal aliens on the car ferry between St. John and St. Thomas.  The informant, who had previously given agents accurate information, provided Ms. Silveus and Mr. Jean's name, said that they were traveling together on the ferry, described their SUV, and provided their license plate number.  Based on this tip, the agents stopped Ms. Silveus when the ferry arrived in St. Thomas.  They found Ms. Silveus in the aforementioned SUV, along with two illegal aliens.  They also saw Mr. Jean off the side of the ferry, treading water.
The Third Circuit held that the anonymous informant's information, taken together with the ICE agents' observations, were sufficient to supply reasonable suspicion for the stop.  It further held that the agents' observations after the initial stop -- of nervous, wet, non-English-speaking passengers in Ms. Silveus's SUV -- were sufficient justification for the prolongation of the stop and further investigation.
In addition to these two major issues, Ms. Silveus's appeal raised three other claims of error: that the evidence was insufficient to sustain her conviction for transporting three aliens, that the district court's erred in denying her motion for a new trial to correct a miscarriage of justice, and that the district court violated her Sixth Amendment confrontation right by limiting her cross-examination of one of the ICE agents.  The Third Circuit rejected all three.
First, it said that the government's evidence (primarily, the testimony of the three illegal aliens in the SUV) supported an inference that Ms. Silveus knowingly transported aliens within the United States.  Second, the Court held that the district court did not abuse its discretion in denying Ms. Silveus's motion for a new trial, which she premised on the argument that one of the government's witnesses had perjured himself, because that witness's testimony was not, as she claimed, patently unbelievable.  And finally, the Third Circuit held that the district court, by limiting Ms. Silveus's cross-examination of an ICE agent about his bias against her and Mr. Jean to exclude any mention of the agent's resentment over Mr. Jean's previously being acquitted of a crime (while permitting her to explore the agent's unhealthy, romantic obsession with her and his subsequent anger over being spurned), had not infringed Ms. Silveus's Sixth Amendment confrontation right.

Wednesday, October 15, 2008

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 to Pennsylvania’s Post Conviction Relief Act (PCRA). The PCRA court found that since Jamison was advised of the maximum penalties due process was satisfied despite the fact that he was not advised of the mandatory minimum. The Pennsylvania Superior Court affirmed the denial of the PCRA petition on the grounds that Jamison was not claiming actual innocence. Jamison then filed a federal habeas petition pursuant to 28 U.S.C. 2254, again claiming that his guilty plea was not voluntary.

Counsel was appointed, and, after an evidentiary hearing, the Magistrate Judge recommended the petition be granted having found as fact that Jamison was never advised of the mandatory minimum and that the failure to so advise rendered the plea not knowing, voluntary and intelligent. The district court accepted the Magistrate Judge’s factual findings but held that the state courts’ rejection of Jamison’s claim was not "contrary to" or "an unreasonable application of Supreme Court precedent" as required for habeas relief under 2254. This holding was based on the fact that no Supreme Court case specifically requires that a defendant be advised on an applicable mandatory minimum. The district court also relied on an unpublished Eleventh Circuit case that held that as long as the defendant is aware of the maximum penalties, there is no need to advise of the mandatory minimum.

The Court of Appeals began its analysis with Boykin v. Alabama, 395 U.S. 239 (1969), which held that "courts may not accept guilty pleas without determining, on the record, that the guilty plea was the result of a knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Slip op. at p. 16. Accordingly, the Court identified the issue as whether the states courts’ decision that Jamison’s plea was valid, was contrary to clearly established law as set forth in Boykin and its progeny that a plea must be a knowing, voluntary and intelligent act undertaken with an understanding of its consequences. The Court held that an applicable mandatory minimum is a direct consequence of a guilty plea that must be know prior to entering a valid plea. Indeed the Court stated that "the mandatory minimum sentence may be far more relevant than the theoretical maximum because it is rarely imposed." Id. at 34. The Court held that although this specific issue regarding a mandatory minimum was never before the Supreme Court, the state courts’ decisions in Jamison case were an unreasonable application of Boykin. In making this determination, the Court noted that the standard of review established in the AEDPA is not so constrained as to require that a Supreme Court decision addressing an issue arising from the identical fact pattern constitute clearly established law. Accordingly, the Court reversed the denial of the petition and directed the district court to grant a conditional writ.

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 meth from Iglesias and made a recorded call arraigning to purchase more. Based on this information a warrant was obtained to search Iglesais’ home after which quantities of meth were found in various rooms and large quantities were found in his car. A semiautomatic handgun was found in his bedroom together with ammunition and a bag containing 2.7 grams of meth.

Iglesias filed a suppression motion prior to trial. At the suppression hearing, the cooperator testified that he bought methamphetamine from Igesais "once or twice" at Iglesias’ residence and that sometimes he did not pay Iglesais until he sold the meth to his own customers. The motion was denied. At trial, two days later, the cooperator became equivocal and in response to the prosecutor’s question as to where he obtained his meth stated "I can’t answer that question because it has been brought to my attention that charges may be brought against me." The district court then admitted the cooperator’s suppression hearing testimony regarding his dealings with Iglesias, who was later convicted on all counts.

On appeal, Iglesias first challenged the sufficiency of the evidence to support the conspiracy conviction arguing that he and the cooperator had a mere buyer/seller relationship. The Court of Appeals rejected that argument holding that: "Although he purchased drugs from Iglesias ‘once or twice’ at Iglesias’ apartment, [cooperator] testified that Iglesias gave him drugs on credit and awaited payment until after [cooperator] had sold the drugs to his customers. This arrangement is sufficient evidence of a conspiracy. Also, the fact that Iglesias invited [cooperator] to Apartment A with drugs in plain view reflects a level of mutual trust consistent with a conspiracy." Id. at p. 156. Similarly, the Court rejected a sufficiency of the evidence challenge to the 924(c) conviction relying on the following factors to establish that the gun was possessed in furtherance of drug trafficking: "The Taurus was found-along with a loaded magazine-inside a briefcase in the office. In addition to the Taurus and the magazine, the briefcase held a large food saver bag that contained several hundred Ziploc® bags. The food saver bag was of the same type which had been used to store the drugs found in the Volvo, and the Ziploc® bags were identical to those which had been used to store methamphetamine in the kitchen of Apartment A. Given the proximity of the loaded magazine to the gun-and considering that the gun, magazine, and drug packaging paraphernalia all were stored together in the briefcase that was found in the same room as methamphetamine-a rational juror easily could have concluded that the gun was used "in furtherance of" Iglesias’ drug-trafficking activities within the meaning of [924(c)]." Id. at 157.

Iglesias next challenged the admission of the cooperator’s suppression hearing testimony. Since a proper objection to the testimony was not raised at trial, the Court reviewed the admission of the evidence for plain error. Under Rule 801(d)(1)(A), the cooperator’s suppression hearing testimony would be admissible at trial if his suppression hearing testimony was "inconsistent" with his trial testimony. Id. at p. 158. The Court of Appeals stated that the cooperator’s trial testimony "was as evasive and opaque as it was clear and straightforward at the suppression hearing." Id. at 159. Deciding an issue of first impression in this Circuit, the Court held that "where a witness demonstrates a manifest reluctance to testify and forgets certain facts at trial, this testimony can be inconsistent under Rule 801(d)(1)(A)."

Lastly, the Court rejected Iglesias’ argument that the amount of meth that he intended for personal use should have been deducted in calculating the total quantity of drugs involved in the conspiracy. The Court stated that while the amount of drugs possessed for personal use should ordinarily be deducted when a defendant is convicted of distribution, as a matter of first impression in this Circuit, a defendant convicted of conspiracy "is not entitled to exclude an amount for personal use in determining the total quantity of drugs involved in the conspiracy." Id. at 160.

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 9 millimeter handgun. He was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court granted Torres’ motion to suppress the weapon and ammunition finding that the tip from the taxi driver did not supply reasonable suspicion for the stop. The Court of Appeals reversed.

The issue before the Court was whether the officers had the right to stop Torres’ vehicle pursuant to Terry v. Ohio, 392 U.S. 1 (1968), which creates an exception to the warrant requirement of the Fourth Amendment when officers conduct a brief, investigatory stop based on "reasonable, articulable suspicion that criminal activity is afoot." Id. at 210. The Court rejected the district court’s finding that "the anonymous tip did not exhibit sufficient indicia of reliability to provide reasonable suspicion." Id. at 211. The Court of Appeals found that the totality of the circumstances justified the stop based on the following: 1) the tipster was an eyewitness who had recently viewed the activity; 2) the tip was detailed and given to the 911 dispatcher in a "play-by-play" fashion as the tipster was following the car; 3) while the tipster did not give his name, he identified his cab company and color of his cab and indicated that a police car was in front of the defendant’s car while he was following it and; 4) the tip identified the make, model, color, license plate number and the defendant’s race and the details of the brandishing incident. Finding that these circumstances provided reasonable suspicion to stop the car, the Court of Appeals reversed the district court’s grant of the suppression motion.

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 the jury that it simply needed to find that the defendant possessed Stanozolol, without qualifying whether the possession had to be legal or illegal. The Third Circuit affirmed the district court's actions, holding that the term "possession" was not limited only to instances of illegal possession.

2. Whether certain hearsay testimony that admittedly violated the Confrontation Clause was harmless beyond a reasonable doubt- During trial, the government introduced certain hearsay statemtned that suggested the defendant's possession of the Stanozolol he intended to distribute was illegal. Because the Third Circuit found that the question regarding the legality of the possession was irrelevant, it likewise found that the admission of the hearsay testimony "into the mix of information the jury was considering in relation to [the possession] charge was harmless." The Court also found that while the testimony "undoubtedly impugned" the defendant's credibility, his credibility simply was not an issue at trial based on the nature of the facts and the defense the defendant raised.

3. Whether the evidence was sufficient to support convictions for felony misbranding under 21 U.S.C. 331(k) - The defendant raised the legal argument that the act of dispensing the drugs in question merely without a prescription did not qualify as misbranding under a proper interpretation of the statute. Instead, the defendant argued, the statute required the defendant to somehow alter the product in some way. The Third Circuit rejected this argument, concluding that any confusion in the language of the statute was "resolved by the relatively straightforward declaration that dispensing drugs without a prescription means that those drugs were misbranded while they were held for sale." However, the Court did find that the evidence did not support the conclusion that the defendant "acted with an intent to defraud of mislead." Therefore, under the statute, his conduct only rose to the level of a misdemeanor misbranding, instead of a felony, of which the defendant was originally convicted.

4. Whether the district court properly calculated the loss attributable to the defendant under U.S.S.G. 2B1.1(b)(1) - In calculating the amount of loss attributable to the defendant's crimes, the district court used the "total gross profits" from the defendant's scheme "as a proxy for the losses suffered." Affirming this approach, the Third Circuit relied on Application Note 3 to 2B1.1, which addresses schemes involving the sale of items "for which regulatory approval by a government agency was required but not obtained." Note 3 states that in such a scenario, the "loss shall include the amount paid" for the items in question. The Court then concluded that the drugs being sold in the defendant's case required F.D.A. approval, and because he had not obtained such approval, Note 3 was applicable and the district court's approach to determining loss was consistent with its instruction.

5. Whether the "Administrative Order" enhancement under U.S.S.G. 2B1.1(b)(8) was appropriate - Finally, the Court considered whether it was appropriate for the district court to apply a 2-level enhancement under U.S.S.G. 2B1.1(b)(8) for violating a prior judicial or administrative order. First, the Court explained that "[a]s a general rule, courts . . . have been willing to impose the enhancement after a meaningful negotiation or interaction led the agency to issue a directive that the defendant subsequently violated." It then concluded that the enhancement "requires an interaction between the agency and defendant that allowed the defendant to participate in some meaningful way . . . and that led to a definite result, like a consent decree or a seizure." Based on these parameters, the Court then concluded that the F.D.A.'s "warning letter" to the defendant did not justify the enhancement. The Court also concluded that a state "cease and desist" letter likewise did not justify the enhancement because it did not offer the defendant the chance to participate in the process in any meaningful way.

Tuesday, October 14, 2008

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 the party with knowledge of the information is acting on the government's "behalf" or is under its "control", the extent to which the two jurisdictions are part of a team, participating in a joint investigation or sharing resources, and whether the federal prosecutor had "ready access" to the evidence. None of those factors applied here, such that the United States was not in constructive possession of the evidence and there was no violation under Brady or Jencks.

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 insubstantial issues to raise on direct appeal and did not identify any non-frivolous ground for direct appeal or collateral attack. While Mabry contended that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), there is a presumption of prejudice in counsel's failure to file a direct appeal that entitled him to an evidentiary hearing, the Circuit rejected that because Flores-Ortega did not address whether the presumption controls where the defendant has waived his right to appellate and collateral review, and the validity of the waiver is a threshold issue.

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., a jury) would have been reasonably likely to arrive at a different outcome . . . ." Because Lilly failed to present any evidence that the judge was biased or the proceeding unfair, he did not demonstrate a reasonable probability that the outcome would have been different had he not waived his right to a jury trial, and he therefore was not prejudiced. The Circuit nonetheless encouraged district courts to conduct colloquies in such situations.

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 show "good cause" for not raising the argument before the district court. Because the Court did not find good cause to exist, it considered the defendant's argument on appeal regarding his motion to suppress waived.
and not just a suppression motion itself, constitutes

Tuesday, September 23, 2008

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 of procedural error, first that the district court made erroneous findings as to the offense being an “isolated mistake” and that the defendant was remorseful - - refusing to parse the words of the district court or the defendant in such a way as to twist the district court’s intention or overrule it’s first-hand observations. The Court likewise found no procedural error in the brief mention given to general deterrence at sentencing where the government barely mentioned the subject and did not strenuously object on such grounds.

Next, the Court rejected the government’s claim that the sentence was a substantively unreasonable application of the factors on which the district court relied, noting that substantive review requires “taking into account the totality of the circumstances”and the long list of reasons given by the district court. The Court also specifically rejected the government’s argument that, in terms of a variance for acceptance, a sentencing allocution could not overcome the fact that Howe had gone to trial and recognized military service as a valid consideration.

Sentence Reversed:

In United States v. Levinson, No. 07-1544 (3d Cir. Sept. 18, 2008), defendant pleaded guilty to one count of wire fraud and one count of filing a false income tax return. At sentencing, the district court granted a variance from the recommended Sentencing Guidelines range of 24 to 30 months of imprisonment and sentenced him to two concurrent 24-month terms of probation. In doing so, the district court considered the § 3553(a) factors. Although the court did not find any characteristics which distinguished Levinson from other criminals, it did, however, determine that Levinson's case could be distinguished from other cases involving white-collar crime because his victim was not the public at large but was instead a private business entity that had already settled its civil lawsuit against Levinson. The court went on to consider the “propriety of putting into jail at a substantial cost to the public a nonviolent offender who poses little or no threat to the public and whose crimes had little impact beyond his business partners and his family”. Finally the court concluded that probation was more appropriate.

The government appealed, arguing that the district court failed to adequately explain the chosen sentence. The Third Circuit agreed and vacated Levinson’s sentence. The Circuit held first, the court clearly erred in finding that defendant had inflicted no financial harm on the public when there was a tax fraud conviction involving a specific dollar loss to the United States Treasury, and second, the court failed to provide adequate explanation for varying downward from a sentencing guidelines range of 24 to 30 months.

The Court found that a more complete explanation of the decision to significantly vary from the recommended sentence of imprisonment was required in that first, after stating that Levinson did not differ from other defendants, the court failed to explain a basis that would warrant such a variance. Second, if there is no real distinction between the defendant and other white-collar defendants, and the district court rested its decision on a policy disagreement with the Guidelines, - - noting the court’s comments about cost, public and private harm, and consideration of general penal policy - - the court must explain why the general policy should not apply in the particular case before it. While acknowledging that “policy considerations are not off-limits in sentencing,” the Circuit expressed some reluctance and concern that the district court had not accounted for “very deliberate policy choices embedded in the Guidelines”.

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 attempts were unsuccessful and the agents were upset at the CI as a result. After the CI was excused, the Government called one of its DEA agents as a rebuttal witness and, through the agent, offered a statement that the CI purportedly made some 50 minutes following the controlled buy in question attesting that it was Green who sold him the drugs. The district court admitted the statement as a present-sense impression under Fed.R.Evid. 801(1).

On appeal, the Third Circuit, in United States v. Green, 06-2468 (3d Cir. Sept. 2, 2008), concluded that the district court erred in admitting the CI’s statement as a present-sense impression. The Court was troubled by the length of time that passed between the event and the statement, noting that it was unaware of any legal authority standing for the proposition that a 50 minute delay between the event and the statement was substantially contemporaneous. Even assuming that the 50-minute interval did not render the statement inadequately contemporaneous, however, the statement was made after the CI had been questioned by federal agents about the details of the transaction, thus disqualifying it as a present-sense impression. Further, the Court found that the error was not harmless because the evidence against Green outside of the CI’s statement was not overwhelming and the CI himself had testified, contrary to the agents, that the individual shown on the videotape was not Green.

Admission of un-Mirandized Statement: The Third Circuit also concluded that the district court erred by admitting Green’s un-Mirandized nonverbal reactions to the videotape. When DEA agents arrested Green, they told Green he was being arrested for an active state court warrant. Only after Green was transported to DEA offices was he informed of the true nature of the arrest, i.e., his indictment on a federal drug charge. Then, after holding Green in a cell for a brief period, the agents took Green into an interrogation room and showed him the video surveillance. Upon seeing the video, Green widened his eyes, asked for the video to be replayed, and then hung his head and sighed. Only after eliciting Green’s reaction to the video did the agents give Green his Miranda warnings and begin express questioning. Green subsequently waived his rights and confessed. At a suppression hearing, the agents admitted that they intentionally refrained from advising Green of his Miranda rights prior to showing him the video in order to lessen the likelihood that Green would request an attorney.

On appeal, the Third Circuit ruled that the district court erred in admitting Green’s both Green’s pre-Miranda testimonial non-verbal responses to the video and his post-Miranda confession. The Court found that there was no intervening lapse of time between the warned and unwarned interrogations, all questioning occurred at the same location with essentially the same interrogators, and the focus and questions in the respective interrogation sessions were identical. The Court also ruled that the error in admitting the statements was not harmless because the admissions were a central part of the Government’s case at trial and the other evidence in the case was not overwhelming.

Accordingly, based on the errors, the Third Circuit vacated Green’s conviction and remanded for a new trial.

Thursday, August 21, 2008

THIRD CIRCUIT FINDS 18 U.S.C. § 48 UNCONSTITUTIONAL.

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 unprotected speech and declined to expand the types of speech not protected by the First Amendment. To reach this decision, the court looked closely at the Supreme Court’s decision in United States v Ferber, 458 U.S. 747 (1982), in which the Court ruled that child pornography, showing real children, was not protected speech. Specifically, the Third Circuit emphasized that the federal government did not have a compelling interest in prohibiting depictions of animal cruelty. Although the Government argued that the federal government had an interest in preventing animal cruelty, the Third Circuit found this argument problematic because 18 U.S.C. § 48 did not regulate or criminalize the act of animal cruelty, but only depictions of cruelty. The circuit court also noted that the Supreme Court had shown reluctance to find a compelling government interest in protecting animals when First Amendment rights were at stake. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In short, a compelling interest that may justify a content-based restriction, such as the one contained in 18 U.S.C. § 48, has always been related to the protection of humans, such as the well-being of minors in Ferber, not animals.

Additionally, applying the other Ferber factors, the Third Circuit found no evidence that animals in videos or pictures continued to suffer because they appeared in images portraying cruelty, or any evidence to suggest that stopping depictions of animal cruelty would decrease actual incidents of cruelty such as illegal dog fights. Also, although the law contained exceptions for depictions that have religious, political, scientific, educational, journalistic, historical or artistic value, these exceptions were insufficient to make the statute and its broad prohibition constitutional.

Since the speech restricted in 18 U.S.C. § 48 was in fact protected speech, the statute was therefore required to survive review under strict scrutiny. Having already determined that the statute did not serve a compelling government interest, and finding that the law was not narrowly tailored to achieve such an interest, the Third Circuit ruled the statute was an unconstitutional infringement on Stevens’ right to free speech and accordingly vacated his conviction.

Three members of the circuit court dissented from the majority opinion.

Wednesday, July 23, 2008

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 was properly held on the date set. The Court also noted that, by statute, a release date may be set at a future time. So long as Congress continues to extend the expiration date, so too may the release date be tolled for future hearings.

The Court also held that the offense severity challenge was an abuse of the writ. Furnari had repeatedly litigated the Parole Commissions’s calculation of his offense severity rating, and the resultant parole denials. On this successive writ, the Court emphasized that the burden shifts to Furnari to demonstrate a "colorable showing of factual innocence" of the crimes for which he was convicted. Furnari’s claims related to his innocence of uncharged murders and other violent conduct, which is insufficient to establish that the Court should entertain the petition in the interests of justice.

Finally, the Court held that it would not interfere with the Commission’s discretion to evaluate mitigating evidence and determine what weight it deserves. With respect to Furnari’s sentence proportionality argument, the Court further held that the Parole Commission lacked statutory authority to review the sentence imposed by the sentencing court.

Friday, July 18, 2008

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 Homeland Security was withholding the document that would move forward the Hashmi case being tried by another division of the Department of Homeland Security.

Hashmi is a native of Pakistan and came to the United States on a tourist visa, which expired after six months. However, Hashmi remained in the United States and eventually married an American citizen who filed I-130 petition for her new husband. Although petition, as it was filled out, showed no prior wife, Hashmi submitted the divorce decree for his prior marriage during the I-130 application process and denied any intent to conceal his prior marriage.

Hashmi was served on July 30, 2003 with a Notice to Appear for overstaying his visa (an allegation Hashmi admitted to, but also requested an adjustment of status due to his pending I-130 petition). It was the division of the Department of Homeland Security in charge of Hashmi’s I-130 petition that sent out the divorce decree to be authenticated, and sent another portion of Hashmi’s file to the government attorney in charge of Hashmi’s removal from the United States (the same attorney who failed to return the file, which held up Hashmi’s I-130 petition). Without the completed petition, Hashmi could not move forward with his removal trial.

The Judge overseeing the removal proceedings eventually ruled that the delays in moving forward with the proceedings went beyond the period of time suggested by the case completion goals, and therefore ordered Hashmi removed from the country.

As further logic for their holding, the court pointed out the fact that to rule otherwise would set a poor precedent, a precedent that would encourage the Department of Homeland Security to commit a similar "catch 22" in the future, against people who have a legitimate petition to remain in this country.

Thursday, June 26, 2008

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 relationship problem, instructed Field to advise Hoffecker clearly and repeatedly that he was not serving as legal counsel. Investigators ensured that Field’s prior legal work would not be implicated by not inquiring about any previous privileged communications between Field and Hoffecker and by instructing Field not to divulge any such communications. Further, the Government employed a "taint team" to review all of the recorded conversations between Field and Hoffecker.

The Court rejected the Due Process claim, noting "Surely there is a delicious irony in the circumstance that . . . the Government conned the con man. . . . To call the evidence supporting Hoffecker’s claim "thin" would be generous as "microscopic" would be the more appropriate word.

The Court next reached the statute of limitations issue, which it viewed as the most potentially precedentially significant matter. Although the Court deemed the statute of limitations issue waived because the defendant failed to raise it in the lower court, it alternatively rejected it on its merits.

The statute of limitations requires that indictments for mail fraud and for conspiracy to commit mail and wire fraud must be "found" within five years of the commission of the offenses. "An indictment is found when it is returned by a grand jury and filed." The statute begins to run for mail fraud when a defendant "places, deposits, causes to be deposited, takes, or receives mail, or knowingly causes mail to be delivered, as part of the execution of a scheme to defraud," and for conspiracy when the conspirators commit the last overt act in furtherance of the conspiracy.

In play here was another statute - 18 U.S.C. § 3292 - which provides, a district court before which a grand jury is impaneled shall suspend the running of the statute of limitations upon application of the government "filed before return of an indictment, indicating that evidence of an offense is in a foreign country," "if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. . . ."

Because the Government applied to suspend the statute of limitations before it received all of the evidence from the Bahamas, the Third Circuit ruled that it would not dismiss on statute of limitations grounds even if Hoffecker had preserved the issue for appeal. The Court also observes that it is irrelevant whether the Government receives any additional materials after it makes its request.

Additionally, appellant argued that the Government’s suspension application was improper because it was filed after the statute of limitations already had expired. The Court deemed this issue waived because it was not raised in the opening brief. A 28(J) letter is not sufficient to preserve an issue for appellate review when the issue was not included in the opening brief.

Hoffecker also maintained (1) Count One’s conspiracy charge was untimely because the indictment was found more than five years after the final overt act of the conspiracy and (2) the ex parte nature of the Government’s § 3292 tolling application was improper.

The Government maintained these claims were waived because, although Hoffecker raised them before the District Court by motion in the first trial and also raised them in his opening brief on appeal, he did not renew them in the District Court before the second trial.

The Court rejected this waiver argument, distinguishing a motion to dismiss indictment on statute of limitations grounds from a motion to dismiss based on evidentiary grounds. Requiring Hoffecker to reraise those issues before the retrial would have been "an exercise in wasteful formality."

Next, the Court rejected Hoffecker’s contention that the Government’s section 3292 suspension application was improper because the proceeding before the grand jury judge who granted the suspension order was ex parte. First, the statute itself does not provide that the party whose statute of limitation is being suspended is entitled to notice or a hearing. To interpret section 3292 to require notice or a hearing for a defendant "would be to ignore the traditionally
non-adversarial and secret nature of grand jury investigations." Further, to impose a notice requirement would undermine the confidentiality of a grand jury’s inquiry and give a potential defendant the opportunity to flee or destroy evidence.

After addressing the remaining eight issues, the court affirmed the judgment.

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 that the unpaid taxes cannot be considered "proceeds" of mail fraud because such tax savings (1) represented a percentage of unreported gross receipts that had been procured through lawful activity (the day to day business of the Supermarket) and, thus, could not be categorized as "proceeds" from an unlawful activity; and (2) were merely retained, rather than obtained.

After noting that the federal money laundering statute does not define "proceeds", the Third Circuit held "simply because funds are originally procured through lawful activity does not mean that one cannot thereafter convert those same funds into the "proceeds" of an unlawful activity." Following Supreme Court precedent and its own prior decision, the Court held "that unpaid taxes, which are unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, constitute ‘proceeds’ of mail fraud for purposes of supporting a charge of federal money laundering."

The Court also considered whether "use of the mails" was "in furtherance of the scheme." Here, "[t]he use of the mail to file fraudulent tax returns and fail to pay all taxes owed was not only incident to an essential part of the scheme, but also was clearly an essential part of the scheme because such mailings were the defendants’ way of concealing the scheme itself by making the fraudulently reported gross receipts seem legitimate."

Monday, June 16, 2008

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 calculated under the Guidelines.

Gunter, 462 F.3d at 247.

Facts & Procedural History: Detectives found Gunter in a motel with 72.5 grams of crack and a loaded firearm. Gunter was indicted for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). A jury convicted Gunter on all counts.

Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including the “disparity” created by the longer sentences recommended for offenses involving crack cocaine. The District Court refused to do so, stating that it could not “second guess Congress' ... intent.” The Third Circuit reversed and remanded for resentencing.

On remand, and pursuant to the Third Circuit’s precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the District Court held a second sentencing hearing. The court adopted the Guidelines range from the first sentencing hearing, which included a range of 235 to 293 months' imprisonment for the drug offenses, plus a consecutive 60 months' imprisonment for the 18 U.S.C. § 924(c) offense. This led to a total Guidelines range of 295 to 353 months' imprisonment.

The District Court imposed a below-Guidelines sentence of 283 months' imprisonment. Gunter appealed, arguing that although the District Court recognized correctly that it could not establish a new crack-to-powder ratio for purposes of calculating the Guidelines range under Step 1, the District Court incorrectly concluded that it could not disagree with the Guidelines at Step 3 solely on policy grounds.

Court's Analysis: Pursuant to United States v. Booker, 543 U.S. 220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Third Circuit reviewed Gunter’s sentence for reasonableness. The Court cited United States v. Gall, 128 S.Ct. 586 (2007) and its recent sentencing jurisprudence, which held that the district courts' sentencing decisions are to be reviewed under a deferential abuse of discretion standard. The Court noted the continuing vitality of its decision in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), which should be read in light of Gall, and the district court's broad sentencing discretion.

Turning to its prior Gunter decision (462 F.3d 237), the Court stated that Gall reemphasized the post-Booker sentencing structure set forth in the Court's precedent. After reviewing the entire sentencing transcript, the Court determined that the District Court "was cognizant of and acted consistent with the caselaw of this Circuit and recent rulings of the Supreme Court pertaining to the crack-to-powder ratio."

The Court explained:

Once Steps 1 and 2 of the sentencing process are completed, Gunter allows district courts to consider the crack-to-powder ratio along with the 3553(a) factors at Step 3 when sentencing defendants, noting that “the District Court erred under Booker in treating the crack/powder cocaine sentencing differential ... as mandatory.” Gunter, 462 F.3d at 248-49. Nevertheless, Gunter prohibits categorical rejection of the 100:1 ratio. Id. at 249 (“[W]e do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.”). On the surface, these two principles appear to conflict somewhat.

This Court used its decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to clear up any confusion in the Gunter holding . . . [D]istrict
courts should first calculate the correct Guidelines range and rule on any departure motions. . . . This obviously means that a correct Guidelines sentence must be made using the applicable Guidelines crack-to-powder ratio. Failure to properly calculate the Guidelines is a procedural error that requires remand unless the error is harmless. Ricks further explained that at Step 3, the district court cannot categorically disagree with the crack-to-powder sentencing disparity; rather, the district court may consider the disparity, but only in reference to individual, case-specific factors under 18 U.S.C. §
3553(a). The Court stated: ‘In short, a district court may, at step three, view the sentencing disparity as too vast. However, it must do so as applied to the particular defendant that appears before the court.’

The Court noted that Ricks was followed by the Supreme Court's decision in Kimbrough v. United States, 128 S.Ct. 558 (2007), which stated that it would not be an abuse of discretion for district courts to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)'s purposes. Stating that Kimbrough's language was consistent with the Court's own statements in Ricks and Gunter: the Court stated:

Simply put, a district court may not employ a “rubber stamp” approach that categorically rejects the crack/powder disparity without an individualized assessment of the § 3553(a) factors and the facts of a particular case. Such an approach would be tantamount to the district court setting its own crack/powder ratio, which Gunter and Ricks forbid. Nevertheless, even in an ordinary case, the district court may determine that the crack/powder ratio yields a sentence that is greater than necessary after giving proper consideration to the § 3553(a) factors and the circumstances of the particular case. The district court would then be free to disagree with the policy underlying the crack/powder ratio as applied to that particular defendant and make an appropriate downward variance in its sentence. The difference between what a court may do and may not do goes beyond mere words. There must be meaningful consideration of the § 3553(a) factors and the particular circumstances of the case before a
variance is made.

The Third Circuit concluded that the District Court carefully considered all of the relevant § 3553(a) factors and made a variance below the Guidelines range, noting in particular Appellant's “efforts at reducing the chances of recidivism and increasing the chances for successful supervised release.” The below-Guidelines variance further illustrates the District Court's understanding of the advisory nature of the Guidelines. Because the District Court complied with the controlling case law of this Circuit and the Supreme Court, the Court affirmed the overall length of the District Court's sentence.

The Court, however, vacated Gunter's sentence on Count 5, because the District Court's concurrent sentence of 223 months on Count 5, which charged a violation of 18 U.S.C. § 922(g), exceeded the statutory maximum of 10 years. On remand, the District Court must reduce Gunter's sentence to no more than 120 months. This change does not affect the overall sentence of 283 months.

Monday, June 09, 2008

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 (Miller did not challenge the possession conviction), and thus the District Court’s entry of guilty verdicts on both counts was plain error . Further, the Court ruled that the trial record did not support a finding of perjury, and therefore the two-level obstruction of justice enhancement was improper.

Addressing first Miller’s sufficiency-of-the-evidence argument, the Court, as a threshold matter, rejected the Government’s argument that Miller waived a sufficiency-of-the-evidence claim on appeal because he did not raise the issue during trial via a motion under Fed. R. Crim. P. 29(a), but rather, filed a timely post-trial motion for acquittal under Rule 29(c). The Court held that the language of Rule 29(c) makes clear that a court of appeals has authority "to exercise plenary review over a claim raised in a [timely] Rule 29(c) motion without regard to whether the claim was earlier raised in a Rule 29(a) motion."

The Court then turned to Miller’s argument that while there may have been sufficient evidence to support a conviction for possessing child pornography, that evidence was insufficient to support a conviction for receiving, and to conclude otherwise, Miller argued, would "extinguish the distinction between the offense of knowing receipt and the offense of knowing possession." The Court agreed that a conviction for receiving child pornography "must be supported by a greater quantum of evidence than that minimally required to prove guilt of possessing child pornography," noting that "a person may come to knowingly possess a computer file without ever knowingly receiving it" and thus "while a person who ‘knowingly receives’ child pornography will necessarily ‘knowingly possess’ child pornography, the obverse is not the case." But having concluded that Miller raised a "colorable" sufficiency-of-the -evidence issue for appeal on the receiving count, the Court concluded that "considering all of the evidence in its totality," even though "there certainly is evidence that Miller did not receive the images knowingly a reasonable juror could look to contrary evidence and conclude otherwise."

The Court next addressed Miller’s argument – not raised in the District Court, and thus reviewed for plain error – that the District Court’s entry of separate convictions for receiving and possessing child pornography violated the Double Jeopardy Clause because § 2252A(a)(5)(B) punishes a lesser included offense of that punished by § 2252A(a)(2). Though observing that this issue was one of first impression in this Circuit, the Court stated that the law was clear as a general matter that possession of a contraband item is a lesser-included offense of receipt of the item, citing Ball v. United States, 470 U.S. 856 (1985). Ruling that Ball controlled, the Court held that § 2252A(a)(5)(B) is a lesser included offense of § 2252A(a)(2), and that entry of separate convictions for the same offense contravenes the Double Jeopardy Clause – and that such error met the standards for plain error review.

In so ruling, the Court rejected the Government’s argument that § 2252A(a)(2) and § 2252A(a)(5)(B) punish separate offenses because § 2252A(d) provides an affirmative offense to a defendant who possessed less than three images of child pornography and either promptly took reasonable steps to destroy them or reported the matter to law enforcement. The Government argued that this potentially available affirmative defense constitutes an additional "element" of § 2252A(a)(5)(B) for double jeopardy purposes. The Court held, however, that the possibility that a defendant could assert an affirmative defense under § 2252A(a)(5)(B) was "immaterial to whether the two offenses are the same under the same-elements test" of Blockburger v. United States, 284 U.S. 299, 304 (1932). Under the same-elements test, affirmative defenses are not to be considered in comparing the charged offenses – the elements to be considered are only "those that must necessarily be proved to establish the commission of a charged offense."

Finally, the Court addressed Miller’s argument that the District Court erred in finding that he committed perjury during trial in his testimony about the nature of his adult pornography collection. Miller argued that the District Court erroneously concluded that he gave willfully false testimony on a material matter when he testified at trial – in response to the question "[d]id you have [adult] sadomasochistic pictures?" — "[n]ot that I’m aware of, no."

As an initial matter, the Court found that there was no basis to find – as a sentencing enhancement for perjury would require – that Miller was both aware that he possessed the asserted "sadomasochistic" images, and that he considered those particular images to be "sadomasochistic." The Court rejected the District Court’s inference that Miller was aware that he possessed those adult images simply because they were found on the same zip disk containing the images of child pornography, which the jury found that he knowingly possessed. The Court held that the jury’s verdict of knowing possession of some illegal images on the zip disk was "not, of itself, sufficient to support a finding that Miller willfully gave false testimony . . . . the perjury of the defendant must . . . be clearly established, and supported by evidence other than the jury’s having disbelieved him."

Further, the Court found that Miller’s response could not be found to be willfully false because the Government’s question was insufficiently precise, in two respects. First, the Government did not lay a proper foundation for the question "Did you have sadomasochistic pictures?" The Government was referring to five specific image files, but never established at trial– through Miller, any other witness, or a proffer of the images themselves – that Miller knew what images the Government was referring to. The Court reasoned that "[w]ithout such a foundation, there is no basis for concluding that Miller was aware of which assertedly ‘sadomasochistic pictures’ the prosecutor might have had in mind."

Second, the Court found that even if Miller had been aware that he possessed those particular five images, the Government’s questioning failed to establish that Miller’s testimony was willfully false when he denied possession of "sadomasochistic" pictures. The Court found that because the Government did not clarify that Miller understood the meaning of the term "sadomasochistic" – which the Court found to be "both contested and context-dependent" – the Government provided no basis for the Court to conclude that Miller was aware that he possessed pictures that he believed to be "sadomasochistic."

Finally, the Court held that the District Court erred in finding that Miller’s allegedly false testimony concerned a matter that was "material." The District Court found that testimony about images of adult sadomasochism were material to Miller’s offense because possession of such images "may well reflect interests in more deviant sexual practices." The Court of Appeals rejected that conclusion, holding – in line with decisions in the Second and Fifth Circuits – that "a defendant’s interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count."

Circuit Judge Rendell filed a separate opinion concurring in part and dissenting in part. Judge Rendell agreed with the majority that knowing possession of child pornography is a lesser-included offense of knowing receipt, and that the perjury enhancement was improperly applied.

But Judge Rendell disagreed with the majority on the sufficiency-of-evidence issue, concluding that the trial evidence was insufficient to support a verdict that Miller knowingly received 11 images of child pornography included in computer files that totaled more than 1200 images. Judge Rendell noted that the record included "no non-speculative evidence that would tend to show, let alone prove beyond a reasonable doubt, that Miller received the 11 images . . . knowing that they were child pornography." Judge Rendell reasoned that "[g]iven the amazing capabilities of technology to trace and find, backtrack and connect, so as to prove the source and path of computer-generated and -transmitted data, the sheer inability of the Government to posit a non-speculative explanation as to how these images came to be [in Miller’s possession], let alone prove they were "knowingly received" by Miller is, to me, striking."

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 his immigration papers. During their several conversations, Ozcelik advised Tuncer that he needed to keep a low profile and not to "get involved in anything" for 3-5 months in order to avoid detection. He also counseled Tuncer that it was a good thing to be living at an address different from his legal address. As a result, Ozcelik was indicted and, after a jury trial, was convicted of seeking and accepting a bribe in violation of 18 U.S.C. § 201(b)(2) and attempting to conceal, harbor and shield from detection an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

On appeal, Ozcelik challenged the sufficiency of the evidence on both counts of conviction. While the Court of Appeals upheld the bribery conviction, it found, as a matter of first impression, that merely counseling an alien to maintain a low profile and live at a different address did not constitute "shielding, harboring, and concealing" within the meaning of § 1324(a)(1)(A)(iii) which states, in part: "Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation . . . shall be punished . . . ."

The Court of Appeals summarized the precise conduct that gave rise to the conviction was as follows: During their March 24 meeting, Ozcelik stated to Tuncer, "You are not going to get involved in anything for 3-5 months in order to keep your status. Go to your work and come back home in silence, cook your food, do that only." Ozcelik continued, "The most important thing is for you to not get involved in anything here, to not get involved in any activity." App. at 989. In a similar vein, Ozcelik said to Tuncer, "That’s why I’m telling you to stay away from everything for 4-5 months. Stay away from everything. Are you going to your job? Go, then come back home." Ozcelik also commented that "it is a good thing that you’ve changed your address. I mean your legal address is different. You are living with a friend here. Disappear, don’t tell anyone what address you’re staying at." Later, he said, "Stay away. Stay away from everything for 5-6 months. . . . Especially the address thing is very important." Ozcelik stated, "[A]s I said before stay low key for 5-6 months, because you do not have any rights." In a later recorded telephone conversation, Ozcelik said to Tuncer, "I told you, don’t do anything, I mean don’t go left and right a lot."

Summarizing appellate authority on the issue, the Court recognized that activity short of sheltering an alien violates the statute. For example, in United States v. Rubio-Gonzalez, 674 F.2d 1076 (5th Cir. 1982), the Fifth Circuit upheld a conviction where the defendant warned aliens at a work site of the presence of an INS agent conducting an investigation. While the Court in Ozcelik agreed "that the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent Government authorities from detecting the alien’s unlawful presence, Ozcelik’s counsel did not. The Court concluded: "we view Ozcelik’s comments as general advice to, in effect, keep a low profile and not do anything illegal. Ozcelik suggested that Tuncer stay out of trouble. Telling an illegal alien to stay out of trouble does not tend substantially to facilitate the alien remaining in the country; rather, it simply states an obvious proposition that anyone would know or could easily ascertain from almost any source." Accordingly, the § 1324 conviction was reversed.

Ozcelik also challenged the sufficiency of the evidence on his bribery conviction under 18 U.S.C. § 201(b)(2) which prohibits a public official from seeking or accepting anything of value in exchange for "(A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person." The elements of the offense are that: "(1) defendant must be a public official, (2) who directly or indirectly demanded, sought, received, accepted, or agreed to receive or accept anything of value personally or for any other person or entity, and (3) did so specifically for one of the three corrupt purposes set forth in subsections (A) through (C)." The Court determined that there was no dispute that Ozcelik was a public official and that he took money from Tuncer, the issues were whether he took the money with corrupt intent and whether there was sufficient evidence that Ozcelik had taken "official action" as a result of the bribe. The Court of Appeals framed the issue as whether Ozcelik aided and abetted other unnamed INS officials to alter Tuncer’s records. The Government conceded that the only evidence that Ozcelik had done so were his own statements to Tuncer that he had friends in the INS who would alter Tuncer’s records. Recognizing that the crime of bribery is committed when the official agrees to perform the act, and that completion of the act is not necessary, the Court found that the crime had been completed when Ozcelik’s friend at INS had agreed to alter Tuncer’s status. Passing on the sufficiency of the evidence, the Court concluded; "Indeed, the only evidence the Government produced at trial that the unnamed friend at INS existed was Ozcelik’s own statements to that effect. But we are not permitted to assess credibility. And as such, we cannot say as a matter of law that no reasonable juror could accept the Government’s theory premised upon Ozcelik’s own statements." Accordingly, the bribery conviction was affirmed.

Wednesday, May 21, 2008

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 officers would lie and asked “Why would Officer Ryel and Detective Medina risk their 32-34 years of experience on the police force over this case?”

Weatherly submitted a proposed “mere presence” jury instruction to explain the legal justification for his defense theory: “Mere presence in the area of any contraband, including a firearm, or awareness of its location is not sufficient to establish possession.” The judge refused the instruction, finding it was not relevant. The court gave, in part, the following possession instruction:

To possess means to have something within your control. This does not necessarily mean that you must hold it physically, that is to have actual possession of it. As long as the firearm is within your control, you would possess it. Knowingly is defined as knowledge, voluntarily and intentionally, and not because of mistake or accident or other innocent reason. . . .Now, to
possess means to have it within the person's control. That does not mean, and I said earlier, it doesn't have to be held physically. It doesn't even have to be on the person. But in this case, the proofs and the allegations are that the defendant had it on his person [and] had actual possession of it. In other words, you can be in possession of a weapon in your car and you can be 25-50
feet from the car. But that's not this case. That's all I'm saying. This case, the allegation is that the defendant had possession of it, actual possession on his person.

The jury returned a guilty verdict. On appeal, Weatherly argued that the possession instruction failed to instruct that the defendant had to “intend to exercise dominion and control” over the firearm and did not cover his requested “mere presence” instruction. He argued that the jury could have found him guilty even if they believed his defense, because the instruction defined possession to include the situation where the firearm was simply near him or susceptible to his control.

The Circuit found that the district court did not err in refusing the mere presence instruction because the possession instruction substantially covered the issue; the jury could not find that Weatherly knowingly possessed the firearm under the actual jury instructions due simply to his mere presence in the area of any contraband because it required knowledge and control. Moreover, even if the actual jury instructions did not substantially cover Weatherly's proposed mere presence instruction, the court did not err because omission of the “mere presence” instruction did not prejudice Weatherly. At trial, the Government's theory was that Weatherly actually possessed the firearm and the court's jury instructions made it clear that this case was about actual possession, not constructive possession, making the mere presence instruction irrelevant.

Weatherly also argued that the prosecutor improperly vouched for the credibility of the government witnesses when he asked why the officers would risk their careers on his case. The Circuit held that although in some cases such a statement would be improper vouching, in this case they were proper because they were based on evidence in the record (the government asked one of the officers what would be taken into consideration by his superiors in making promotion decisions, part of his answer included disciplinary actions), and the statement was a reasonable response to allegations of perjury by Weatherly's attorney, who argued at closing that the police officers found a gun near the defendant, conspired with each other to lie about the incident, and then proceeded to perjure themselves in court.