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Thursday, April 10, 2008

In the absence of standardized impoundment procedure, officer may reasonably impound vehicle

United States v. Smith, No. 06-3112 (3d Cir. April 9, 2008)

Lancaster police arrested the driver and passenger of a car stopped in an area "in which parked vehicles were subject to being damaged, vandalized, or stolen." Police could not identify the owner of the vehicle, although they were able to determine that it did not belong to either occupant. Based on these facts, one of the officers decided to impound the vehicle, and during a subsequent inventory search discovered a handgun in the glove compartment. After losing a motion to suppress firearm, the defendant entered a conditional plea to a violation of 18 U.S.C. §§ 922(g) and 924(c).

On appeal, the defendant argued that the decision to impound the car had to "be exercised pursuant to standardized criteria or the seizure is unconstitutional." The defendant further argued that the Lancaster Police Department did not have a standard procedure regarding the impounding of vehicles. Notably, the defendant did not challenge the actual search itself, and the Third circuit thus limited its review to the "validity of the impoundment rather than the validity of the actual search of the vehicle."

Noting that this was a case of first impression in the the circuit, and recognizing that the other circuits are split on the issue, the Third Circuit joined the First Circuit in holding that the focus of the analysis is the overall reasonableness of the impoundment for a community caretaking purpose. In adopting this approach, the Court rejected the D.C. Circuit's logic "requiring that there be standardized police procedures governing impoundments." Thus, the Court concluded that "a reasonable impoundment does not become unreasonable merely because the police do not impound all vehicles found in similar circumstances any more than an unreasonable impoundment becomes reasonable merely because all vehicles in similar circumstances are impounded." Applying this approach to the facts of the case, the Third Circuit concluded that the discretionary decision to impound the vehicle was reasonable, especially given the officers' concern regarding the vehicle's safety.

Third Circuit lacks jurisdiction to hear defendant's appeal that speedy trial motion should've been dismissed with prejudice.

United States v. Martin Kuper, No. 07-1916 (3d Cir. April 7, 2008)

Before the district court, the defendant filed a motion to dismiss his indictment, alleging a violation of the Speedy Trial Act. The district court granted the motion, but dismissed the indictment without prejudice. The defendant appealed, arguing the indictment should have been dismissed with prejudice. The Third Circuit dismissed the appeal, stating that it lacked jurisdiction.

The Court explained that the district court's ruling was not a "final order" for purposes of 28 U.S.C. § 1291. Citing the Supreme Court's decision in United States v. MacDonald, 435 U.S. 850 (1978), which held that a motion to dismiss for a Sixth Amendment speedy trial violation was not a final order, the Third Circuit held that a violation of the Speedy Trial Act likewise, did not "represent a final rejection of a defendant's claim." Instead, the Court recognized that the defendant would be able to "appeal the dismissal of his first indictment if he is re-indicted and convicted." The Court also noted that every court of appeals addressing the issue has held that an order dismissing an indictment without prejudice is not a final order under § 1291.

Additionally, the Court rejected the defendant's claim that re-indictment would cause a "personal hardship," concluding that "the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship." (Funny, I don't remember that being mentioned in my 5th grade civics class!)

Tuesday, April 01, 2008

“Identity theft” sentencing enhancement does not apply to altering addresses on clients’ financial statements

Update: On April 22, 2008, the Court filed the amended opinion. It appears to be substantially the same as the original.

Update: On April 17, 2008, the Court vacated its opinion and judgment sua sponte, explaining that an amended opinion will be filed forthwith.

In United States v. Hawes, No. 06-3334 (3d Cir. Mar. 27, 2008), the Court of Appeals held that the district court erroneously applied a two-level "identity theft" enhancement under § 2B1.1(b)(9)(C)(i) [now § 2B1.1(b)(10)(C)(i)] because the defendant’s conduct did not qualify for the enhancement. Hawes, an investment advisor, was convicted of defrauding his clients of monies that they had entrusted to him. As part of his fraudulent conduct, he changed the addresses to which his clients’ account statements were mailed so that the statements were sent directly to his office address. The Court held that changing an address does not constitute "produc[ing] or obtain[ing] any other means of identification," as required under § 2B1.1(b)(9)(C)(i). It explained that changing an address is similar to the application note’s examples of conduct that does not constitute identity theft, such as stealing an existing credit card or cashing a check from an existing bank account. It rejected the government’s contention that a "means of identification" includes a name plus any other piece of information; rather, the means of identification must be specific or unique. It also noted that "the change of address was to thwart the discovery of, not enable, the illicit activity." Finally, the Court held that Hawes did not "establish new credit or ‘breed’ new forms of identification, as contemplated by Congress and the Sentencing Commission in enacting this enhancement."

The Court further held that this error was not harmless and remanded for resentencing. It affirmed the lower court’s application of the vulnerable victim enhancement and the order of restitution.