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Friday, June 26, 2009

Citing Hodari D., the Third Circuit reverses District Court’s order suppressing evidence.

In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court’s suppression of evidence and remanded for further proceedings.

The facts of the case are as follows: Police officers responded to a dispatcher’s report of an anonymous caller’s observation of a "subject" with a gun at a specific location. Upon arrival at the location the officer’s observed five individuals standing on the front porch of a house. The officer’s exited their vehicle and without seeing any weapons, ordered the individuals to put their hands in the air. All individuals complied, except one - Waterman - who kept his hands in his jacket pockets. The officers, who still had not seen any weapons, removed their firearms and repeatedly ordered Waterman to show his hands. Waterman didn’t comply and, instead, entered the residence. Guns and drugs were subsequently discovered in the residence.

The district court suppressed the recovered evidence concluding that Waterman was "stopped" under Terry when the officers commanded everyone to put their hands in the air. That "stop" lacked reasonable suspicion and therefore was an unlawful seizure warranting suppression.

The Court of Appeals disagreed. Citing the Supreme Court’s decision in Hodari D., the Court noted that a "seizure"does not occur until one of two things takes place: either "physical force/contact" with the defendant or "submission to the assertion of authority." To establish "physical force" there has to be more than just of a "show of authority" - it requires the "application of force" or "laying on of hands." To establish "submission" there has to be more than just a "momentary pause or inaction," - it requires, at minimum, a suspect’s "manifest compliance with police orders."

The Court of Appeals concluded there was neither "physical force" nor "submission" and therefore there was no "seizure." While the Court held that officers drawing their firearms was a "display of force," it nonetheless fell short of the "physical force" required under Hodari D. Likewise, the Court held there was no "submission" because Waterman did not comply with the officer’s commands.

The irony was in the Court’s conclusion that, "had police officers effected a ‘seizure’ on the porch, Waterman’s rights would have been violated" under Hodari D. In other words, if he stayed on the porch and submitted to their authority, the recovered evidence would have been suppressed. But because he retreated, the recovery of evidence was lawful.

Monday, June 22, 2009

Court affirms denial of sentence reduction for eligible crack defendant

Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U.S.C. § 3582(c)(2), the district court found that consideration of the 18 U.S.C. § 3553(a) factors and the safety and welfare of the public made a sentence reduction inappropriate. On appeal, the Third Circuit ruled that: (1) the defendant was not entitled to an evidentiary hearing and the court did not abuse its discretion in failing to hold an evidentiary hearing; (2) the district court did not abuse its discretion by concluding that, despite the defendant's progress since incarceration, the nature of the defendant's crime, his criminal history, his use of firearms, and the need for deterrence and public safety made a reduction inappropriate; and (3) the defendant's unmodified sentence was substantively unreasonable.

Tuesday, June 16, 2009

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction. Instead, Petitioner stipulated at sentencing to a loss that exceeded $100 million. Near the end of Petitioner's term of imprisonment, the Government sought to remove Petitioner from the United States based on his commission of an "aggravated felony," namely, an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000 (8 U.S.C. § 1101(a)(43)(M)(i)). Petitioner argued that under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), both the "fraud and deceit" and "loss" elements of § 1101(a)(43)(M)(i) must have been found by a jury in order for him to have been convicted of an aggravated felony.

The Supreme Court in Nijhawan v. Holder, No. 08-495 (June 15, 2009) affirmed the Third Circuit's holding that the Immigration Judge could inquire into the underlying facts of the prior fraud conviction to determine whether the loss to the victims exceeded $10,000. Resolving a circuit split on the issue, the Court concluded "that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include [the $10,000 threshold]. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occassion." The Court found that a "circumstance-specific" approach, rather than a "categorical approach," was necessary because (1) the "aggravated felony" statute at issue differed from the ACCA statute at issue in Taylor by listing both generic and specific circumstance offenses, (2) subparagraph (M)(i)'s language, containing the words "in which" (modifying "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements "of" the offense, and (3) applying a categorical approach would leave subparagraph (M)(i) with little, if any, meaningful application. Finally, the Court rejected Petitioner's fairness argument, concluding that Petitioner and others in similar circumstances had the opportunity to contest the loss amount at both the sentencing and deportation hearings.