Skip to main content


Showing posts from 2009

Intentional 45 month delay in bringing defendant to trial violated defendant's Sixth Amendment speedy trial rights

In a rare reversal of a district court's speedy trial decision, the Third Circuit in United States v. Battis, 08-2949 (3d Cir. December 14, 2009), concluded that the government's intentional 45 month delay in bringing the defendant to trial violated the defendant's Sixth Amendment right to a speedy trial. The Court reversed the district court's judgment denying defendant's speedy trial motion and remanded the case with instructions to dismiss the indictment and vacate the defendant's conviction.

The case arose out of a bar fight in Philadelphia. The defendant, Germaine Battis, was arrested by Philadelphia police for, among other things, illegally possessing a firearm. He was arraigned in state court on January 20, 2004. One month later, on February 24, 2004, Battis was indicted in federal court for possession of a firearm by a convicted felon. A federal bench warrant was issued as a detainer because Battis was in state custody, but the detainer was never formall…

Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well

The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served. The Court had previously so held in U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007). But in Manzella, rehabilitation was the only justification given, whereas the district court in Hoffa cited rehabiliation as well as incapacitation. The Court saw no distinction, holding that the plain meaning of 3582(a) prohibits the use of rehabiliation as "a factor" in imprisonment descisions.

The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.

PA Simple Assault = crime of violence under knowing/intentional part of statute

In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v. Begay, 128 S. Ct. 1581 (2008). But the Court did rule that simple assault committed knowingly or intentionally does qualify as a crime of violence. It remanded for a resentencing hearing at which the district court is to determine whether Johnson’s prior conviction for simple assault was for the part of the statute charging knowing and intentional conduct, as opposed to reckless conduct.

Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). T…

For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockb…

Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty

The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for “honest services” fraud under 18 U.S.C. §§ 1341, 1343 and 1346. The defendants ran the Ben Franklin Technology Center (hereinafter “BFTC”). The purpose of BFTC was to administer funds provided by the Commonwealth of Pennsylvania for other organizations in an effort to foster the development and commercialization of new technology. One of BFTC’s clients during the course of this fraudulent scheme was the U.S. Navy. The government indicted the defendants for defrauding BFTC of their honest services by misusing BFTC funds for personal expenditures and thwarting the efforts of subordinate employees to investigate their actions. The indictment also charged the defendants with depriving the U.S. Navy of the honest services of BFTC. In essence, the government sought …

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court’s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1.3. Prior to 2003, the Third Circuit had interpreted U.S.S.G. § 4A1.3 to permit a downward departure from a defendant’s career offender status if the court found that the career offender designation over-represented his criminal history. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit had ruled that, in the absence of a definition for the term "departing" as used in § 4A1.3, this section permitted a downward departure to both the criminal history category as well as the offense level. However, in 2003, the Sentencing Commission amended § 4A1.3 to provide a specific downward departure where the defendant’s criminal history category substantially over-represents the seriousness of his criminal history or h…

Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same. The Court affirmed the convictions of the organization, Stop Huntingdon Animal Cruelty ("SHAC"), and six individuals charged: the President of SHAC, the Campaign Coordinator for SHAC, the web creator/manager for SHAC, the Seattle branch manager for SHAC, a SAC activist who coordinated protests, and a SHAC Huntingdon campaign organizer in NJ.

A complete recitation of the facts from the Court’s 60-page opinion is not possible here. In brief: Huntingdon Life Sciences is a research corporation that performs testi…

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.

(1) Federalism Challenge

Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requ…

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count. On appeal, the Government conceded that Cesare improperly received concurrent sentences in violation of double jeopardy because bank robbery is a lesser included offense of armed bank robbery, but argued that the two separate $100 special assessments be left intact because special assessments are not punishment.

The Third Circuit, in United States v. Cesare, No. 08-2749, disagreed with the Government's position regarding the special assessments, holding that the entry of separate convictions, including separate special assessments, threatened the defendant with "potential adverse collateral consequences." As such, the two separate special …

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – prop…

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that…

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris’ motion to vacate an order of civil contempt.

Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents. Following his indictment, he and his co-conspirators filed bogus financial documents that purported to create liens against the judges and prosecutors in their cases. The Government moved for a restraining order, which was granted. Despite the restraining order, the conduct of Harris and his co-conspirators continued.

A show cause hearing was held, at the conclusion of which, Harris and his co-conspirators were held in civil contempt and ordered to be incarcerated until they stopped the activity involving the bogus financial documents. Harris’ co-conspirators ceased the activity - Harris did not. Consequently, his incarceration on the contempt order began thereafter in April…

Rehearing Granted in Case Where Court Previously Held That Prior Conviction for Resisting Arrest Qualified as a Crime of Violence.

On September 25th, in United States v. Stinson, No. 08-1717, July 28, 2009, the Court of Appeals granted rehearing in a case where it previously held that a prior conviction for resisting arrest was a crime of violence under U.S.S.G. § 4B1.1(a). Argument is scheduled for October 8, 2009.

Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court’s denial of Thomas’ § 2254 petition.

While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court. Thomas asked and was given permission to proceed pro se. However, prior to trial, the trial judge refused some of his requests for production of witnesses and documents - as a result, Thomas declined to participate in his own trial. Consequently, jury selection, trial, and conviction all took place in his absence and in the absence of any counsel. On appeal, Thomas complained of a Sixth Amendment violation - i.e. the trial judge’s failure to appoint counsel in his absence and for conducting the trial in his absence. The Delaware Supreme Court affirmed the conviction finding no error.

Thomas then filed a 2254 petition. The District Court denied the petition but, in doing so, granted a certificate of appealability "…

Brady Violations Compel New Trial in Capital Murder Case

In Simmons v. Beard, No. 05-9001 (3rd Cir. Sept. 11, 2009), a habeas proceeding arising from a capital murder conviction, the Third Circuit affirmed the district court’s grant of a new trial on the ground that the state prosecutors withheld several pieces of material exculpatory evidence in violation of Brady where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.

Writ of Audita Querela Under the All Writs Act Cannot Trump 28 U.S.C. 2255

The Third Circuit recently ruled that a federal prisoner may not seek relief via a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651, as long as his claim is cognizable under 28 U.S.C. § 2255. United States v. Massey, No. 09-1665 (3rd Cir. Sept. 11, 2009). This applies even if the client is unable to satisfy the AEDPA requirements for filing a second or successive § 2255 motion to vacate sentence.

Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity." United States v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009). The Court began by clarifying its prior holding in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). While Vargas's holding that it is not an abuse of discretion for a sentencing judge to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough, Vargas can no longer be read to prohibit a sentencing court's discretion to consider a fast-track disparity argument because such a disparity is warranted by Congress under 18 U.S.C. § 3553(a)(6). According to the Court, the fast-track issue is not confined to § 3553(a)(6), but, instead, a sentencing judge has the discretio…

Habeas Relief Granted in Decision Construing Pennsylvania Law of Conspiracy

In Robertson v. Klem, No. 07-2581 (Aug. 28, 2009), the Court considers a state prosecution resulting in consecutive sentences of five to ten years’ imprisonment for each of two alleged conspiracies to commit murder. The Court grants habeas relief on the ground that the evidence was insufficient under Pennsylvania law to support conviction of more than one conspiracy.

In an opinion by Judge Sloviter, the Court explains that the evidence at the state trial sufficed to permit a reasonable jury to conclude beyond a reasonable doubt that the defendant had conspired with a second man in the shooting of two persons during a single visit to their home. Focusing on the fact that there were two victims, the Pennsylvania Superior Court upheld consecutive sentences for two conspiracies. The Third Circuit, however, finds that analysis insupportable under Section 903(c) of the Pennsylvania Crimes Code, which provides that if "a person conspires to commit a number of crimes, he is guilty of only…

"Departure" or "Variance," That is the Question

District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court’s construction of the application note in a manner favoring the defendant.

Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime – an approach from which the Second Circuit recently endorsed exceptions (opinion here) – the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines." "Departures are enhancements of, or subtractions from, a guidelines calculation based on a specific Guidelines departure provision," Senior District Judge Pollak’s opi…

Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only

Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.

With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares that "when Congress fails to set the unit of prosecution clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Finding the statute ambiguous in its pr…

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." This week, in United States v. Lychock, No. 06-3311, a panel flunks a sentence under that standard. The defendant, following conviction for possessing between 150 and 300 images of child pornography, had been placed on five years' probation and fined $10,000 when the Guidelines range was 30 to 37 months’ imprisonment. The Court vacates the sentence as both procedurally and substantively unreasonable.

Two leading factors in the Court’s analysis appear to have been the sentence of probation and the defendant’s apprehension in a "wider investigation into an international child pornography enterprise," which has led to the sentencing of numerous defen…

PA Escape (M2) is not a Crime of Violence

In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1.1. In so ruling, the Circuit recognized that its prior decision to the contrary in US v. Luster, 305 F.3d 199 (3d Cir. 2002), has been effectively overruled.

Hopkins was convicted of drug trafficking. At sentencing the district court concluded he qualified as a career offender because he had two qualifying predicate offenses under USSG 4B1.1. One of the prior convictions was for escape under Pennsylvania state law. The escape occurred when local police went to Hopkins' home to arrest him for failure to appear for a traffic violation. Hopkins ran out the back and was caught as he tried to jump over a fence.

Hopkins challenged the sentence on appeal, and the Circuit initially affirmed on the basis of its prior deci…

Materiality and filing of false claims with IRS

In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim." The Court went on to hold (3) that that indictment was nonetheless sufficient, in spite of its failure to use the term "material," because the factual allegations implied materiality, and (4) that the district court's failure to instruct on materiality was harmless in light of the evidence which showed beyond a reasonable doubt t…

Post-Begay, Possession of a Weapon In Prison Is Not Considered a “Crime of Violence” Under the Career Offender Guidelines

In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months’ imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers." Polk was charged with one count of possession of a prohibited object designed to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2), and pleaded guilty. At sentencing, the District Court determined that Polk’s offense constituted his third predicate "crime of violence" under the Career Offender Guidelines, resulting in a Sentencing Guidelines range of 37-46 months. Without the career offender enhancement, the Guidelines range would have been 27-33 months. Polk did not object to his career offender designation despite the fact that Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581 (2008), had been de…

Child Porn: Circuit upholds use of relevant conduct and conditions of release

In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court’s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material.

The district court at sentencing determined Thielemann’s offense level under § 2G2.1, an increase of 10 levels, (offenses causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction), using a cross-reference to uncharged relevant conduct—codefendant’s molestation of a minor carried out at defendant’s inducement via the internet. The Third Circuit affirmed the use of relevant conduct in determining the offense level.

The Court also upheld both special conditions of supervised release. The restriction on possessi…

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offe…

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not viol…

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on J…

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealab…

Citing Hodari D., the Third Circuit reverses District Court’s order suppressing evidence.

In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court’s suppression of evidence and remanded for further proceedings.

The facts of the case are as follows: Police officers responded to a dispatcher’s report of an anonymous caller’s observation of a "subject" with a gun at a specific location. Upon arrival at the location the officer’s observed five individuals standing on the front porch of a house. The officer’s exited their vehicle and without seeing any weapons, ordered the individuals to put their hands in the air. All individuals complied, except one - Waterman - who kept his hands in his jacket pockets. The officers, who still had not seen any weapons, removed their firearms and repeatedly ordered Waterman to show his hands. Waterman didn’t comply and, instead, entered the residence. Guns and drugs were subsequently discovered in the residence.

The district court suppressed the recovered evidence concluding that Waterm…

Court affirms denial of sentence reduction for eligible crack defendant

Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U.S.C. § 3582(c)(2), the district court found that consideration of the 18 U.S.C. § 3553(a) factors and the safety and welfare of the public made a sentence reduction inappropriate. On appeal, the Third Circuit ruled that: (1) the defendant was not entitled to an evidentiary hearing and the court did not abuse its discretion in failing to hold an evidentiary hearing; (2) the district court did not abuse its discretion by concluding that, despite the defendant's progress since incarceration, the nature of the defendant's crime, his criminal history, his use of firearms, and the need for deterrence and public safety made a reduction inappropriate; and (3) the defendant's unmo…

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction. Instead, Petitioner stipulated at sentencing to a loss that exceeded $100 million. Near the end of Petitioner's term of imprisonment, the Government sought to remove Petitioner from the United States based on his commission of an "aggravated felony," namely, an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000 (8 U.S.C. § 1101(a)(43)(M)(i)). Petitioner argued that under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), both the "fraud and deceit" and "loss" elements of § 1101(a)(43)(M)(i) must have been found by a jury in order for him to have been convicted of an aggravated felony.

The Supreme Court in Nijhawan v. H…

Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

United States v. Jones, No. 07-2798 (May 20, 2009).
The Third Circuit gives broad rein to a district court’s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (“VICAR”) statute. The defendant was charged with having joined in a retaliatory, drive-by-type shooting on the orders of higher-ranking members of the Double II Bloods gang in East Orange, New Jersey. One person was injured in the shooting but no one was killed. The defendant was sentenced to 22 years’ imprisonment after conviction of, among other offenses, conspiracy to commit murder for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)(5).

At voir dire, following the description to prospective jurors of separate charges brought against certain of Mr. Jones’s six codefendants but not Mr. Jones, all of the codefend…