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Showing posts from January, 2008

Condition of Supervised Release Requiring Reporting of All Contact with Police Violates Due Process

In United States v. Maloney, No. 06-3745 (3d Cir. Jan. 17, 2008), the Court of Appeals held that a condition of supervised release which required the defendant to "notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer" was impermissibly vague as applied in the factual setting of the case. Maloney was convicted after a hearing violating three separate conditions of his supervised release, viz., 1) failing to notify his probation officer after he had been questioned by the police for failing to display a peddler’s license, 2) failing to report that he had purchased or had access to a vehicle and; 3) committing the crime of eluding a law enforcement officer.

With regard to the first violation, subsequent to commencing supervised release, Maloney began working as a shoe peddler and at some time later was issued a summons for failing to display his peddler’s license. The summons was ultimately dismissed as untimely. Howe…

Court of Appeals Discusses Issues of Striking Juror with "Aggressive Attitude", the Confrontation Clause and Amount of Loss

United States v. Jimenez, No. 05-4098 (3d Cir. Jan. 14, 2008), involved convictions arising out of a multi-defendant, 47-count indictment charging conspiracy to commit mortgage fraud and bank fraud. Five defendants appealed raising numerous challenges to their convictions, after a jury trial, and related sentences. The scheme involved a mortgage brokerage company and various related entities that secured residential and commercial loans for borrowers who could not otherwise obtain mortgages. When customers failed to qualify for loans, the conspirators fabricated federal tax returns and inflated W-2 forms or false pay stubs as well as various other documents associated with obtaining a mortgage. Some of the customers who received loans that they could not afford to repay, defaulted and lost their homes resulting in losses to the lender as well. The bank fraud involved a check kiting scheme wherein the mortgage brokerage companies cashed checks between 30 separate accounts maintained at…

Defendant Breached Plea Agreement in Seeking Departure for Overrepresentation and Downward Variance Based on Personal Characteristics

In U.S. v. Williams, No. 05-4153, Dec. 31, 2007, the Circuit held that a defendant who sought departures for over-representation of criminal history and mitigating personal circumstances, and a downward variance based on personal circumstances, breached his plea agreement which stated “neither party will argue for the imposition of a sentence outside the Guidelines range that results from the agreed total Guidelines offense level.”

The court first established the same de novo standard of review in considering a defendant's breach of a plea agreement as with a government breach case. The government bears the burden to prove the breach by a preponderance of the evidence.

Next, in finding that Williams breached the plea agreement, the court rejected his arguments that 1) post-Booker, defendants should be able to argue for departures and non-Guideline sentences, especially because the sentencing courts are required to consider the factors set forth in § 3553 to determine whether a no…