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.
Wednesday, October 22, 2008
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.
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.
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.
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.
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.
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.
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.
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
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
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