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Showing posts from October, 2009

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…