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Tuesday, November 25, 2008

Prosecutorial Misconduct for AUSA to Introduce "extensive evidence" of Uncharged Drug Use and Transactions -- Even Under Plain Error Standard

United States v. Morena, No. 07-1297 (Nov. 19, 2008). Morena appealed his conviction for felon-in-possession and possession of an unregistered, sawed-off shotgun. He appealed on several grounds, but prevailed on his claim that the government’s injection into the trial of extensive evidence of uncharged drug use and transactions, as well as evidence of his prior non-felony convictions, amounted to prosecutorial misconduct and plain error.

There is great language in this opinion about the prosecutor’s duty as the representative of a sovereign, the danger of admission of uncharged misconduct, the sufficiency of evidence in gun prosecutions, and the limited value of curative instructions.

The district court had approved the admission of a limited amount of drug evidence under 404(b) to show motive and to set the context for the arrest. As the Court wrote, however, "the government repeatedly exceeded its pretrial proffer, systematically injecting inadmissible drug evidence into the two-day trial." Indeed, the district court admonished the government repeatedly over the presentation of such evidence: serious heroin dealing not connected to Morena (twice); violation for probation due to drug use; and history of drug use (three times).

The government attempted to defend the conviction on the basis that the evidence of Morena’s guilty was "firm and sufficient." The Court found that the evidence "boil[ed] down" to the testimony of one witness who had "credibility issues," and "a few pieces of circumstantial evidence." The Court noted that, "[i]n such a case, improper suggestions and insinuations ‘are apt to carry much weight against the accused when they should properly carry none.’"

The Court was also critical of the district court’s limiting instructions. Only one was given during trial. After its initial reprimand, the district court halted testimony to advise the jury to remember that Morena was on trial for guns not drugs. In its jury instructions, the court repeated, "[Morena] is only on trial for these two counts and no other criminal conduct that has been mentioned or alluded to." The Court characterized these instructions as weak, AND added "[m]oreover, even a very strong jury instruction to disregard a prosecutor’s conduct may nevertheless result in a denial of due process where, as here, the evidence is marginal and the prejudicial conduct significant."

Great win by Renee Pietropaolo of the Federal Public Defender for the Western District of Pennsylvania.

NB: The Court also gives a several-page reminder that conflict of interest and ineffective assistance claims are generally not cognizable in the first instance on direct appeal.

On the sufficiency issue, check out the recent Ninth Circuit decision in United States v. Perez, in which the Court reverses a gun conviction because, "[w]here there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Note that the defendant in Perez was found sleeping with one gun in his lap and another leaning against his knee! For more, see http://circuit9.blogspot.com/

No Bruton Violations in Bench Trials

Johnson v. Tennis, No. 07-1968 (3d Cir. Nov. 19, 2008). The first paragraph of this opinion (almost) says it all:

"This appeal by Gary Johnson from the denial of his petition for habeas corpus by the District Court of the Eastern District of Pennsylvania requires us to decide an issue of first impression in this Circuit: Do the teachings of Bruton v. United States, 391 U.S. 123 (1968), apply to a bench trial in a criminal proceeding? Bruton and its progeny established that in a joint criminal trial before a jury, a defendant’s Sixth Amendment right of confrontation is violated by admitting a confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. See id.; Richardson v. Marsh, 481 U.S. 200, 211 (1987); Cruz v. New York, 481 U.S. 186, 193-194 (1987). We hold that the Bruton rule is inapplicable to the incriminating confession of a nontestifying codefendant in a joint bench trial. By its own terms, Bruton applies to jury trials only. In so deciding we agree with every United States Court of Appeals that has considered the question."

The Court "so decided" because "[w]e will not presume that a judge suffers from the same disability" as a jury in disregarding inadmissible evidence.

Expect fewer bench trials in cases with confessing co-defendants!

Monday, November 10, 2008

Defendants not required to re-raise sentencing issues at end of sentencing hearing to avert plain error review

In United States v. Sevilla, 07-1105 (3d Cir. Sept. 4, 2008), the Third Circuit clarified what defendants must do to avert plain error review of sentencing issues. The Court held that where a defendant squarely raises a sentencing issue both in his sentencing memorandum and again at the sentencing proceeding, the defendant is not required to re-raise those issues or otherwise object to the district court's explanation of its sentence in order to avert plain error review.

The Court proceeded to review the defendant's sentence for reasonableness and ultimately vacated defendant's sentence and remanded for resentencing because instead of addressing the defendant's sentencing issues, the district court merely stated that it had considered the 18 U.S.C. § 3553(a) factors and provided no further comment or analysis. The Third Circuit concluded that the record did not indicate that the district court gave meaningful consideration to the 18 U.S.C. § 3553(a) factors.

Reasonable suspicion is required to justify border search of cruise ship passenger's cabin

In a matter of first impression, the Third Circuit ruled in United States v. Whitted, 06-3271 (3d Cir. Sept. 4, 2008) that reasonable suspicion was required to justify a border search of a passenger cabin on a cruise ship arriving in the United States from a foreign port. The Court found that a passenger's private living quarters while on a ship were more akin to an individual's home than an automobile and, therefore, were entitled to more rigorous Fourth Amendment protection. As such, a search of a cruise ship passenger's cabin at the functional equivalent of a border constituted a non-routine border search which must be supported by reasonable suspicion.

Applying this standard, the Third Circuit concluded that reasonable suspicion existed to support the search in this case. Customs officials had a particularized and objective basis to suspect that defendant was involved in drug smuggling where cruise ship traveled to drug source countries, defendant had previously traveled to several known narcotics source countries, purchased his ticket just prior to ship's date of departure, may have paid for ticket in cash, and had record of felony drug convictions, and officials did not engage in profiling, but rather, authorities at port had found defendant's behavior suspicious and entered lookout for him into Treasury Enforcement Communications System (TECS) database.

Friday, November 07, 2008

Third Circuit discusses procedures for declaring a mistrial based on a deadlocked jury

In United States v. Wecht, 08-2258 (3d Cir. Sept. 5, 2008), the Third Circuit identified the ideal procedures a district court should follow before declaring a mistrial based on a deadlocked jury by referring to the Court's recently adopted Model Jury Instructions, specifically Instruction 9.05 (Deadlocked Jury - Return for Deliberations) and Comment 9.06, which details the Committee's recommended procedure for declaring a mistrial based on a deadlocked jury. The procedure includes: (1) determining whether a supplemental charge is necessary, (2) questioning each juror, (3) excusing the jury and conducting a hearing with counsel and the defendant, and (4) calling the jury back to the courtroom and discharging the jury.

The district court in this case did not follow the ideal procedure because it never questioned the jurors regarding the deadlock. Nor did the court provide counsel with the opportunity to argue the merits of declaring a mistrial as required by Fed.R.Crim.P. 26.3. Although the Third Circuit found that the district court had both failed to follow the proper procedure for declaring a mistrial and had violated Fed.R.Crim.P. 26.3, neither violation warranted an automatic dismissal of the Indictment. Instead, the Court considered the substantive question of whether the district court improperly declared a mistrial. In evaluating this question, the Court held that the district court's violation of Rule 26.3 did lessen the degree of deference it would accord the district court's finding of manifest necessity for declaration of mistrial. Even under this lower standard, however, the Third Circuit found that manifest necessity existed to declare a mistrial where the jury had deliberated for 54.5 hours over a period of ten days and had sent two notes indicating that they were hopelessly deadlocked. Accordingly, the Third Circuit affirmed the district court's declaration of mistrial and held that the defendant could be tried again without violating the Double Jeopardy Clause.