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Tuesday, March 31, 2009

In a "close call," the Third Circuit finds reasonable suspicion to justify stop. Denial of Motion to Suppress affirmed.

In United States v. Mathurin, No. 07-4576 (D.VI 03/27/09), the Court of Appeals affirmed the district court’s denial of the Mathurin’s motion to suppress evidence.

ICE Agents received information from Border Agents that a "suspicious vessel" had departed Puerto Rico and was heading their way to St. Thomas. The boat was "suspicious" because it was described as a "yolla-type vessel, low to the water line" with a single occupant. The agent’s went to a marina and located the suspected boat. They learned from the marina workers that the boat arrived that day, that a man named Perez-Polanco piloted the boat, he rented the slip for the day, and left in a taxi to the nearest hotel with no luggage. Agent’s found the hotel where Perez-Polanco was staying and learned that he planned to leave the next day. They then ran a criminal background check and learned among other things that he had a prior conviction for possession of 6 kilograms of cocaine and a detention in the seizure of $260,000.

The agents conducted surveillance of his hotel room on the belief that a "drug transaction was imminent." Hours later they observed two individuals, one of whom was Mathurin, enter Perez-Polanco’s room with a light-colored plastic bag. A few minutes later they left the room without the plastic bag. Two hours later, Mathurin returned and entered Perez-Polanco’s room with another dark-colored plastic bag. And, a few minutes later, he left the room without the bag. Shortley thereafter, Perez-Polanco himself exited the room and got in the same vehicle as Mathurin. The agents then stopped the vehicle and ordered the three occupants, Mathurin, Perez-Polanco, and the driver, to exit. The agents arrested Mathurin and the driver (Perez-Polanco who initially fled on foot) and then found a backpack in the back seat with 2.2. kilograms of cocaine inside.

Once charged, Mathurin filed a motion to suppress. The district court ruled that the initial arrest of Mathurin was illegal but denied the motion concluding the agent’s had reasonable suspicion to stop the vehicle to "confirm or dispel" their suspicion of criminal activity and that the arrest of Perez-Polanco outside of the vehicle justified the search of its interior incident to his arrest.
On appeal, Mathurin argued only that the officers lacked reasonable suspicion as needed for a valid investigatory stop. In doing so he first argued the tip regarding the vessel was "unreliable" because it was unclear which federal agency provided the information. The Court disagreed and said regardless of what federal agency the tip derived from is inapposite to the weight the local authorities should have afforded it. Second, Mathurin argued the tip should be deemed anonymous. Again the Court disagreed holding that a tip from one federal agency to another "implies a degree of expertise and shared purpose in stopping illegal activity." Further that the tip itself was not the sole basis for reasonable suspicion, but rather the information the agents used to launch an investigation.

The Court then found reasonable suspicion. Specifically that, under the totality of the circumstances, the fact that the slip was rented for one day, the hotel room was reserved for one night, and that Perez-Palanco had a criminal history for drug distribution, coupled with the multiple visits to his hotel room by Mathurin who was carrying different plastic bags and leaving without. And the fact that Mathurin left the hotel room without Perez-Polanco justified a finding of reasonable suspicion. That each factor alone was insufficient to support reasonable suspicion but combined, reasonable suspicion existed. Of note, the Court on several occasions deferred to the "training and expertise" of the agents regarding their knowledge of local drug activity and looked at the situation from the agent's viewpoint as a means to tip the scales in favor of the Government in what was labeled a "close call."

Friday, March 27, 2009

Superior Court's rejection of IAC claim involved unreasonable application of Strickland & petitioner’s proffer entitled him to evidentiary hearing

In Siehl v. Grace, No. 07-1568, March 25, 2009, the Court of Appeals reversed the district court’s denial of Siehl’s § 2254 habeas petition and remanded for an evidentiary hearing.
Siehl was charged with homicide in state court. The prosecution’s case was based entirely on a fingerprint and bloodstain evidence recovered from the crime scene (the victim’s bathroom). A forensic expert was appointed to assist defense counsel and prepared a preliminary report which, among other things, indicated that the fingerprint was the defendant’s. The report did not, however, make any findings as to the bloodstain evidence and indicated the fingerprint could have been made before the crime occurred. The expert prepared no other reports and was not called to testify. At trial the Commonwealth rested on the fingerprint and the bloodstain evidence. Instead of calling an expert to challenge and/or rebut the Commonwealth’s case, the defense stipulated the print was Siehl’s and then presented an alibi evidence. Siehl was subsequently convicted of first degree murder.

On direct appeal, Siehl obtained new counsel who, in turn, failed to raise a claim of trial counsel’s ineffectiveness. The conviction was affirmed. Then, on PCRA, Siehl yet again obtained new counsel who raised both trial and appellate counsel’s ineffectiveness and requested an evidentiary hearing. The request was denied and the claim of trial counsel’s ineffectiveness deemed waived. The PCRA Court did, however, grant an evidentiary hearing on separate unrelated issues where Siehl attempted to present testimony from highly regarded forensic expert, Leon MacDonell. The Court refused to hear testimony from Professor MacDonnell but permitted an offer of proof via affidavit which opined that the fingerprint was not Siehl’s, that a Commonwealth’s fingerprint deterioration theory was incorrect, commented that the blood stain evidence came from the same source, and that the forensic expert retained by trial counsel was not qualified in this field. The Court denied relief. An appeal was taken to the Superior Court who affirmed. In doing so, the Court addressed the merits of trial counsel’s ineffectiveness and held that because Siehl did not deny the fingerprint was his, trial counsel had a reasonable basis for stipulating the fingerprint was his and that Siehl suffered no prejudice as a result. The Court also held the Siehl could not demonstrate prejudice for the failure to call a qualified forensic expert to assist at trial.

Siehl then instituted § 2254 proceedings. The District Court adopted the Magistrate Judge’s Report and Recommendation which recommended the denial of Siehl’s ineffectiveness claim and recommended the denial of a certificate of appealability (COA). The Third Circuit disagreed and granted a COA with respect to three issues involving ineffective assistance of counsel.
In their opinion, the Court set out to make two determinations: 1) whether the PA Superior Court’s rejection of Siehl’s IAC claims involved an unreasonable application of Strickland, and 2) if so, whether Siehl’s proffer of evidence entitled him to an evidentiary hearing. The Court ruled in the affirmative.

Specifically, as to the first determination, the Court held that "given the Commonwealth’s expected testimony" regarding their "core evidence" (i.e. the fingerprint evidence), defense counsel’s decision to stipulate that the fingerprint was Siehl’s "effectively admitted that he was the murderer." Therefore, the PA Superior Court’s application of Strickland and ultimate denial of the ineffectiveness claim thereon was not objectively reasonable.

As to the second determination, whether Siehl was entitled to an evidentiary hearing, the Court held that there was an insufficient record "upon which to evaluate trial counsel’s performance" yet that it must decide whether Siehl had "shown enough" to give him the opportunity to expand the record. This determination involves two issues: (1) whether AEDPA bars an evidentiary hearing under these circumstances; and (2) "if not, whether Siehl had proffered sufficient evidence to demonstrate that ‘a new hearing would have the potential to advance petitioner’s claim.’"

The Court determined as to the first issue that Siehl had diligently sought and was denied an evidentiary hearing on the relevant issues during PCRA proceedings. Consequently, the Court held this was a sufficient showing by Siehl because he "may be able to show" no waiver where appellant counsel was ineffective for failing to raise ineffectiveness of trial counsel on direct appeal.

As to the second issue, the Court also determined Siehl made a sufficient showing. Specifically, the Court held that he made a prima facie showing to entitle him to an evidentiary hearing where, as here, he was unable to establish the necessary records in the state courts through no fault of his own. That the MacDonnell report itself, if credited, would be enough to suggest he’d received ineffective assistance of counsel. The Court noted, that based on the current record, the strategic choices of counsel appear to have been made without a full investigation. Additionally, the Court held that Siehl made a prima facie showing that would enable him to demonstrate a reasonable probability that, but for the ineffectiveness of trial counsel, the result of his trial would have been different. That given the opportunity to undermine the Commonwealth’s scientific evidence would only bolster Siehl’s alibi defense. Reversed and remanded for an evidentiary hearing.

Where originally sentenced under career offender guideline, not entitled to two level reduction under Crack Amendment

In United States v. Mateo, No. 08-3249, March 24, 2009, the Court of Appeals joined four other Circuits in denying a motion to reduce sentence under 18 U.S.C. § 3582(c) where at the original sentencing, the defendant was sentenced under the career offender guideline.

Mateo was convicted of an offense involving crack cocaine. At his original sentencing, however, Mateo was sentenced as a career offender under USSG § 4B1.1. Then, in 2007, after the Sentencing Commission retroactively amended section § 2D1.1 lowering the base offense levels for crack cocaine offenses, Mateo filed a motion for a sentence reduction. He argued that, even though he was sentenced as a career offender under § 4B1.1, his sentence was "based on" § 2D1.1, and therefore entitled to a reduction. He also made arguments under § 3553(a). The district court denied the motion, finding that the Crack Amendment did not reduce the sentencing range applicable to Mateo.

On appeal, the Third Circuit reviewed the district court’s interpretation of the Guidelines, de novo and its decision to grant or deny the § 3582(c) motion for abuse of discretion. The Third Circuit affirmed the district court’s decision stating that, "[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level." The Court, citing First Circuit precedent, emphasized that the "term ‘sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus. Therefore, pursuant to the statute, ‘if an amended guideline does not have the effect of lowering the sentencing range actually used at sentencing, the defendant’s sentence was not based on that range within the intendment of the statute.’" (citation omitted). Consequently, the Court concluded that, as a career offender, Mateo’s base offense level under § 4B1.1 remained the same regardless of the applicable base offense level under § 2D1.1. As such, the amendment to § 2D1.1 did not affect Mateo’s sentencing range and § 3582(c) does not permit a reduction.

Mateo also made the argument that the Guidelines are advisory and strict adherence to its policy statements violate Booker. The Third Circuit rejected the idea and held that the requirements for a sentence reduction under § 3582(c) remain unchanged in light of Booker and Kimbrough.

Thursday, March 26, 2009

Former Secret Service Agent Unsuccessfully Contests Five Sentencing Adjustments Involving Intended Loss, Vulnerable Victim, Abuse of Trust, Obstructio

In United States v. Dullum, No. 07-4502, March 13, 2009, the Court of Appeals affirmed the District Court’s ruling on five sentencing adjustments including; intended loss, vulnerable victim, abuse of trust, obstruction of justice, and acceptance of responsibility in this mail and bank fraud case. The most interesting fact about this case is that the defendant was a Secret Service Special Agent In Newark and an active member of his New Jersey church when the offenses were committed.

Dullum befriended two fellow church members who were recovering alcoholics/drug addicts, and were "a little slow", and volunteered to serve as their financial advisor. The Government maintained that it was in that capacity that Dullum forged one of the victim’s signatures on her will, did not inform the deceased’s family that he was acting as the executor of her estate, made misrepresentations about the value of the estate, transferred money form the estate’s bank account into his person account, and produced a fabricated $20,000 promissory note made out to him by the deceased.

The bank fraud aspect of the case involved a rental property at the Jersey shore owned by Dullum. He deposited two rent checks from the same renter into the estate account and then transferred the money to his personal account. (After depositing the first rent check in the estate bank account, Dullum falsely claimed he did not receive the check. He asked the renter to send a new check made payable to one of the two church members, who he falsely claimed was his wife.) Dullum made restitution for the two checks, after he was interviewed by the Secret Service and the bank froze his accounts.

Dullum argued that the District Court should have applied a four rather than a six level enhancement for loss because his bank fraud scheme (the rent checks) caused no loss. The Court held that Dullum intended to cause a loss for the full amount of the rent check. The Court rejected Dullum’s argument, that he is entitled to credit for repayment of the loss amount, because his repayment was after and not before the crime was uncovered. U.S.S.G. § 2B1.1 App. N.3(E)(I). The Court also rejected Dullum’s argument that the loss associated with the rent check should be reduced to zero because he had other funds in his bank accounts to offset the check.

Dullum argued that the two fellow church members were not vulnerable and were not direct victims. The Court, citing United States v. Monostra, 125 F.3d 183, 189 (3d Cir. 1997), held this enhancement is not limited to situations in which the vulnerable person is the direct victim of the offense of conviction, but that courts may look to all the conduct underlying an offense. The Court noted that the deceased victim was vulnerable, even if the direct victim was her estate. Further, there need only be one vulnerable victim in order for the two level enhancement to apply.

Dullum argued that his relationship with his two fellow church members was not the type of situation contemplated by the abuse of trust adjustment. The Court opined that through Dullum’s involvement with his church, he acted as a teacher, advisor and counselor to the two victims, and that he spent substantial time with them over three years as a trusted church figure of authority, counseling them with respect to their substance and alcohol abuse, and acting as their financial advisor. The Court found that Dullum’s position was a private position of trust and that the District Court did not err in applying the two level enhancement.

Dullum also objected to the two level enhancement for obstruction of justice. The Court held this adjustment was justified because during the investigation Dullum was interviewed three times, and provided five sworn statements, four of which contained lies. He also provided a forged promissory note during his third interview, and failed a polygraph examination. Only after repeated interviews, did he more truthfully discuss his actions in his fifth and final sworn statement.

Finally Dullum argued he should have received a three level, rather than one level, reduction for acceptance of responsibility. The Court determined Dullum was not entitled to the benefit of this adjustment because he refused to take full responsibility for his behavior, and, conduct resulting in an obstruction enhancement ordinarily indicates the defendant has not accepted responsibility for his criminal conduct. (U.S.S.C. § 3C1.1 App. N. 4). As a result, the Court determined the District Court was well within its discretion to grant a one level rather than three level reduction for acceptance of responsibility.

Wednesday, March 25, 2009

Supreme Court holds that failure to preserve breach of plea agreement is subject to plain error review.

Overruling longstanding Third Circuit doctrine, ( See United States v. Moscahlaidis, 868 F. 2d 1357, 1360 (3d cir. 1989), the Supreme Court held today in Puckett v. United States, 2009 WL 763354 (No. 07-9712), that a breach of a plea bargain at trial or sentencing is subject to "plain error" not "de novo" review unless a timely objection is lodged in the district court.

Special thanks to Peter Goldberger for quickly bringing this to our attention.

Friday, March 06, 2009

Scope of conspiracy dictates statute of limitations, while Third Circuit muddies law on quid pro quo bribery

The Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No. 07-3447 (3/6/09), the Court was faced with an indictment charging two conspiracies to commit bribery (18 U.S.C. s 371 and 666(a)(1)(B)). The indictment described the object of the first conspiracy as "to enrich [defendants] by corruptly soliciting and accepting payments from contractors with the intent of being influenced . . . ." It also recited six overt acts, including solicitation and acceptance of payments as well as (1) the return of one of the payments as a "loan," and (2) the refusal to return another of the payments as a "loan." Only these last two overt acts fell within the 5-year limitations period, however.

The Court held that, because the conspiracy was charged as having a simple solicit/accept object, the conspiracy was complete when that occurred and the later return or refusal to return the payments as "loans" could not have furthered the conspiracy as charged. The statute of limitations had therefore run, and the defendant's convictions on the first conspiracy count, as well as on the underlying extortion counts, were vacated. The second conspiracy count charged a later conspiracy, which was not time-barred. The Court upheld the defendant's conviction on that count against a sufficiency-0f-the-evidence challenge.

Perhaps inadvertently, the Court also dropped a bombshell by stating without analysis that section 666 bribery does not require proof of a quid pro quo. This issue has not previously been addressed in this circuit, is the subject of a split among others, was not actually at issue in Bornman -- and, in result, is arguably inconsistent with the Third Circuit's decision in U.S. v. Kemp. The Court's cite to the Supreme Court's decision in Sabri v. U.S., 541 U.S. 600 (2004) suggests that it confused the federal nexus issue (i.e., the government need not show a link between the official act in question and the federal funds that provide the jurisdictional hook) with the quid pro quo issue (i.e., the government does need to show a link -- an exchange -- between the official act and the thing of value).

The Court also turned away the defendant's challenge to the denial of his severance motion, reaffirming that the difficult standard for severance is not met by a showing that the evidence in a case is most damaging with respect to only certain counts.

Thursday, March 05, 2009

Alien bears burden of proving invalidity of written waiver of rights in deportation proceeding

In the context of entertaining a collateral attack on prior deportation during a subsequent prosecution for illegal reentry under 8 U.S.C. s 1326(a), the Third Circuit has held that an alien bears the burden of proving (by a preponderance of the evidence) the invalidity of a written waiver of rights that he signed in the deportation proceeding. The case is Richardson v. U.S., No. 07-4409 (3/4/09). The defense to illegal reentry in this case was that the original deportation was flawed for various reasons. Collateral attacks on deportation orders can be mounted if administrative remedies seeking relief from the order have been exhausted, the alien was improperly deprived judicial review in the deportation proceeding, and the entry of the deportation order was fundamentally unfair.

Here, the Court turned away a collateral attack on the deportation order because the alien had signed a written waiver of rights during the deportation proceeding, and he had not proven the waiver invalid. In the course of reaching this conclusion, the Court noted several open questions in this circuit, none of which needed to be reached in this case:

(1) whether ineffective assistance of counsel constitutes an excuse for failure to exhaust administrative remedies;

(2) whether the exhaustion requirement is prudential or jurisdictional; and

(3) whether, under the fundamentally-unfair prong, an alien may demonstrate prejudice by showing that there was a reasonable likelihood that relief from deportation under former Section 212(c) of the INA (8 U.S.C. s 1182(c)) would have been granted, despite the fact that the Attorney General retains complete discretion over the granting of relief.

Tuesday, March 03, 2009

Consent search upheld, with thorny questions of revocation and authority avoided by resort to independent-source doctrine

The Third Circuit, in U.S. v. Price, No. 06-4503 (3/3/09), has upheld the denial of a motion to suppress evidence found in a defendant's home, which was searched after state agents gained consent -- under disputed circumstances -- from the defendant's wife. The case ultimately boiled down to whether the consent was voluntarily given, and the court held that it was. The court avoided some difficult issues of revocation and authority by relying on the independent-source exception to the exclusionary rule.

The defendant was arrested at work on a state warrant stemming from the sale of methamphetamine to an undercover agent. After the defendant expressed concern that his young children would be left at home alone, the agents placed him in custody, went to the house, got the mother's telephone number from the children, and summoned her to the scene. Although the agents had information that the defendant operated a meth lab in his basement (and in fact discovered meth paraphernalia on the defendant at the time of his arrest), they declined to seek the defendant's consent to search his home and instead sought it from the wife at the house. The agents told the wife that they wanted to search the house (1) to make sure it was safe for her and the children, and (2) to look for a stolen ATV. They did not tell her that they were looking for a meth lab, that incriminating evidence could be used against her and her husband, or that she had the right to refuse consent.

The wife consented to a search of the house, and let an agent into a locked bedroom where he found meth paraphernalia. She then told the agent to stop searching the house, and he obliged but asked if he could look in the basement -- where the agents thought the meth lab was all along. She said she would allow it, except for the fact that the basement door was locked, she did not have a key, and did not want the door kicked in. An agent then picked the lock, and evidence of meth manufacturing was found.

The wife was then asked to sign a written consent-to-search form, which she refused to do. The agents advised her that the house was unsafe and applied for a warrant, reciting what they saw in the basement as well as other information they obtained during the search of the house and prior to the defendant's arrest. The warrant issued, and the evidence in the basement was seized.

The Third Circuit held that the wife's original consent was voluntary because (1) police do not have to tell a subject that she has the right to refuse consent; (2) the atmosphere was not coercive; and (3) the agent's half-truth about the reasons for the search did not vitiate voluntariness.

The Court dodged what it viewed as the more difficult questions of revocation and authority to search the basement through reliance on the independent-source doctrine. In these circumstance, independent source requires findings that the police would have applied for a warrant absent the constitutional violation and that the warrant would have issued. The Court ruled that, based on everything they knew before entering the basement, the agents would have applied for the warrant even if they had not entered the basement first. The Court also ruled that the warrant application, purged of the evidence from the basement, still established probable cause.

Finally, the Court upheld the terms of an appeal waiver in the defendant's plea agreement and declined to entertain his argument that the government wrongfully withheld a motion for a third-point reduction under U.S.S.G. 3E1.1(b).