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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.