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Showing posts from February, 2009

Money Laundering and Relevant Conduct

In US v. Blackmon, No. 07-4237 (2/23/09), the 3rd Circuit addressed the interplay between the money laundering guideline, USSG 2S1.1(a), and relevant conduct, USSG 1B1.3. The Circuit accurately warned that the discussion of these issues is "abstruse."

The Circuit held (1) that the district court correctly applied the guidelines for "direct money laundering" under USSG 2S1.1(a)(1) because defendant was accountable for the underlying offense of drug distribution; and (2) that the district court properly counted as relevant conduct for the money laundering guidelines the cocaine conspiracy that defendant was involved in.

Blackmon pleaded guilty to conspiracy to distribute over 5 kilos of cocaine, and to money laundering. The conspiracy involved Blackmon shipping Fed Ex packages of cocaine from California to conspirators in Philadelphia, in exchange for packages of cash that the coconspirators sent back to Blackmon. The FBI arrested the coconspirators, who began coo…

Conviction Reversed for Erroneous Hearsay Admission; Court Holds Miranda Issue for Another Day

Held: Out-of-court statement by confidential informant that defendant was the person who sold him the drugs in question, made 50 minutes after event, was not admissible as a present sense impression under Rule 803(1) because it was not sufficiently contemporaneous and was made only after questioning by DEA agents.

After reversing a crack conviction but then vacating its decision on the government’s petition for rehearing, the original panel reversed again in a new opinion filed February 18 in United States v. Green, No. 06-2468, available here: http://www.ca3.uscourts.gov/opinarch/062468p1.pdf. Unfortunately, the new decision comes down without the Court’s previous finding of reversible Miranda error in what the government had called a "widely-used" interrogation tactic of presenting evidence to a suspect before reading the warnings. Instead, it relies exclusively on the erroneous admission of an informant’s prior out-of-court statement under the present sense impression exc…

Sentencing on Possession of Classified Documents

In United States v. Aquino, 2009 WL 279274 (Feb. 6, 2009), the defendant received and retained documents containing classified information government information pertaining to the current regime in the Phillipines, United States military strategy and training methods, and ongoing criminal investigations. Aquino pled to a single count under 18 U.S.C. § 793(e), which prohibits the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor. At the hearing Aquino admitted to retaining the documents and knowing the documents were classified and could be used to injure the United States or aid a foreign government.

At sentencing, the parties disagreed over which of the relevant guideline sections, § 2M3.2 (which carries a higher base offense level and covers statutes that proscribe diverse forms of obtaining and transmitting national defense information and carries a mens rea requirement that must have…

Habeas Corpus - Claims Relating Back/Ineffective Assistance

In Hodge v. United States, 2009 WL 235674 (Feb. 3, 2009), the Circuit held that defendant's ineffective assistance claim in his untimely supplemental memorandum and his right-to-appeal claim in his original habeas motion were tied to a common core of operative facts. Thus, the ineffective assistance claim relates back to his timely habeas motion, where both claims concerned erroneous advice provided by defendant's counsel regarding filing deadline for appeal. Failure to file notice of appeal was ineffective assistance.

Court Distinguishes Chapter Two and Chapter Three “Victims” under the Guidelines

In United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs. Kennedy was convicted of writing checks, mostly payable to cash, from the accounts of 34 beneficiaries. The non-profit and its insurer fully replenished the accounts from which money was taken. At sentencing, the court applied a two-point enhancement for ten or more victims (§ 2B1.1(b)(2)(a)) and a two-point enhancement for vulnerable victims (§ 3A1.1(b)(1)). On appeal, Kennedy challenged the enhancements.

The Third Circuit agreed that the § 2B1.1(b)(2)(a) enhancement, based on the number of victims, did not apply. The Court held that the account holders from whose accounts the defendant stole funds were not “victims” within the meaning of that enhancement where the account holders were completely reimbursed by d…

Puerto Rican Felony Conviction Qualifies as Predicate Offense under 18 U.S.C. §922(g)(1)

In United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U.S.C. §922(g)(1).

The defendant moved to dismiss the indictment, claiming that the government failed to adequately allege the materiality element of 18 U.S.C. §922(a)(6). Citing Small v. United States, 544 U.S. 385 (2005), the defendant argued that his Puerto Rican conviction was “foreign” and not “domestic,” and therefore it could not serve as a qualifying predicate offense under 18 U.S.C. §922(g)(1). According to the defendant, the existence of his Puerto Rican conviction was not material to the lawfulness of the sale because the foreign conviction did not make it illegal for him to purchase a firearm under 18 U.S.C. §922(g)(1). The trial court denied the defendant’s motion, ruling that his Puerto Rican conviction was dome…

Fourth Amendment Requires Initial Determination of "Seizure"

In United States v. Crandell, No. 07-4004 (Jan. 29, 2009), police responded to an anonymous tip regarding a Black male with blond-tipped dreadlocks in the area carrying a handgun in his waistband. The officers apparently recognized the tip as a description of the defendant. As the officers arrived in the area, they observed the defendant walking in their direction. The officers approached the defendant and conducted a pat down search of his person.

The trial court suppressed the gun as fruit of an illegal seizure under the Fourth Amendment. The court ruled that the anonymous tip was insufficient to support a reasonable suspicion to justify the stop. The trial court apparently assumed that police had seized the defendant when they initiated the pat down search. The government appealed, arguing that the defendant had not been seized pursuant to Fourth Amendment jurisprudence.

The Court reiterated that before the trial court could address the sufficiency of the anonymous tip to support the…