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Showing posts from May, 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 officer…

"Related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1, 2007) requires either formal consolidation order or close factual relationship

In United States v. Wood, No. 06-3812 (3d Cir. May 1, 2008), the Third Circuit considered whether the defendant's prior burglary and conspiracy convictions were "related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1 2007 version) where the defendant was sentenced for those offenses on the same day before the same judge. Adopting the approach utilized by other circuits and the district court in this case, the Third Circuit held that the imposition of sentences for multiple offenses at the same time by the same judge does not render the cases "consolidated for sentencing" and, therefore, "related" within the meaning of §4A1.2(a)(2), in the absence of either a formal consolidation order or a close factual relationship between the offenses. Here, the three prior convictions were factually distinct, involved different crimes and separate victims, and occurred on separate dates. The offenses were charged under different docket numbers, no formal …

3d Circuit affirms life sentence and holds that § 848(b) sets forth sentencing factors, not a separate crime.

In United States v. Tidwell, No. 02-3139 (3d Cir. Mar. 31, 2008), the Third Circuit held that Congress intended 21 U.S.C. § 848(b) as a sentencing enhancement, not as a separate crime, and thus the life sentence imposed on Tidwell under § 848(b) was constitutional where the factual basis was not charged in the indictment. Tidwell had pleaded guilty to engaging in a criminal enterprise in violation of § 848 ("Continuing criminal enterprise"), which carries a penalty of 20 years to life imprisonment. The indictment, however, did not specifically charge him with violating § 848(b) ("Life imprisonment for engaging in continuing criminal enterprise"), which carries a mandatory life sentence for one who is the leader of the enterprise and either the offense involved 300 times the quantity of drugs described in § 841(b)(1)(B) or the enterprise received more than $10 million in gross receipts over a 12-month period.

The district court sentenced him to life imprisonment und…