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Showing posts from November, 2009

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…