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Showing posts from March, 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 …

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 evid…

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 distri…

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, a…

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.

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/a…

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. …

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 paraphernal…