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Tuesday, July 28, 2009

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offense level to 36 and his sentence to 270 months. However, the defendant appealed the partial grant of his motion, arguing that the district court should have treated the guidelines as advisory when adjusting a sentence pursuant to § 3582(c) and therefore granted him a greater reduction. The Third Circuit upheld the re-sentencing, thereby joining the majority of courts which have concluded that Booker does not apply to § 3582(c)(2) proceedings. The court relied on its reasoning in cases involving the determination of a defendant's eligibility for a sentence reduction under § 3582(c). Specifically, the court recognized that as § 3582(c) only serves to reduce a sentence reduction, not increase it, the constitutional holding in Booker does not apply. The court noted that Booker invalidated § 3553(b)(1), which does not cross- reference § 3582(c). The court also determined that Booker applies to full sentencing hearings-whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under § 3582(c)(2).

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not violated § 2422(b) if he used an adult intermediary to facilitate the attempted enticement. Relying upon the legislative history of the statute, policy considerations and common sense, the Third Circuit upheld the conviction. The court reasoned that, as the defendant was charged with an attempted violation of § 2422(b), his crime was complete when he demonstrated his intent to commit the crime and he took a substantial step toward its commission using a means of interstate commerce. The court concluded that the defendant demonstrated his intent to commit the crime via his emails and telephone conversations, and he took a substantial step toward its commission using a means of interstate commerce by arranging the rendevous and discussing how to avoid police protection via email and telephone.

Monday, July 27, 2009

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on January 7, 2005. Lee’s defense at trial was that the registration card showed that Martin/Lee had checked out days before the drugs were found. The hotel staff-person repeatedly testified that the card showed that Martin had checked out in well in advance of the search.

During deliberations, through a jury question, it became clear that the original registration card that had been received in evidence was two-sided, and that the flip side indicated that Martin had extended his stay through January 7th – the day of the search. Lee moved for a mistrial. The court denied the motion and gave a limiting instruction that told the jury that only the front part of the card was in evidence and the back should be disregarded. The Third Circuit reversed, finding that the failure to disclose the reverse side of the card interfered with Lee’s substantial rights and undermined confidence in the verdict. The district court therefore abused its discretion in failing to grant a mistrial.

The Court rejected the government’s argument that it had met its discovery obligation by giving counsel "access" to the exhibit. "Although it may be sound practice," the Court said, "defense counsel is not required to inspect every exhibit at trial to ensure that documents that appear to conform to the copies provided by the government are in fact identical." The Court also rejected the government’s argument that the jury should be presumed to have followed the limiting instruction. "[W]e will not blindly assume that a jury is able to follow a district court’s instruction to ignore the elephant in the deliberation room." Here, the case against Lee was otherwise relatively weak, the registration card was a critical piece of evidence, and the jury "was primed to see the information on the back of the registration card."

The Court limited the reach of its ruling, however. It held only that "[u]nder these highly unusual circumstances . . . it was clear error for the District Court to assume – at least without some inquiry – that the jury would be able to follow the Court’s instruction." It also noted that "undisclosed evidence that upsets a defendant’s trial strategy may be admissible if the defendant has some opportunity to adjust his trial strategy and respond to the new evidence."

The Court also addressed several evidentiary issues that would likely be at issue again at the new trial, ruling that (1) Lee had no expectation of privacy in Boyer’s person; (2) the affidavit supporting the search warrant established probable cause; (3) and Lee’s prior drug trafficking conviction was properly admitted as evidence that Lee intended to distribute any drugs in his possession.

Thursday, July 09, 2009

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealability as to three issues: 1) that the trial court’s "reasonable doubt" instruction was unconstitutional; 2) that the Commonwealth’s closing argument at sentencing was unconstitutional; and 3) that Thomas’s counsel was ineffective for failing to life-qualify the jury.

Thomas appealed the District Court’s denial of those three guilt-phase claims; the Commonwealth cross-appealed the sentencing relief on three grounds: 1) that the District Court applied the wrong standard of review; 2) that there was insufficient evidence that Thomas’s trial counsel failed to investigate mitigating evidence; and 3) that any deficiency by trial counsel did not prejudice Thomas. The Third Circuit affirmed the District Court’s denial of the guilt-phase claims, but vacated the District Court’s order granting sentencing relief, remanding for an evidentiary hearing on the extent of trial counsel’s investigative efforts to obtain mitigation evidence.

As a threshold matter, the Court addressed whether the AEDPA deferential standard of review applied to Thomas’s three claims, when they were "adjudicated on the merits" in the lower state court, but the appellate state court dismissed those claims entirely on procedural grounds, as waived. The Court held that in the § 2254 context, AEDPA deference is due only when the state court resolution of petitioner’s claim has preclusive effect, and here, the Pennsylvania Supreme Court’s dismissal on purely procedural grounds "stripped the PCRA court’s substantive determination of Thomas’s claims of preclusive effect." Therefore, because Thomas’s claims were not "adjudicated on the merits" in state court, the Court did not need to apply AEDPA deference, but rather, could review legal and mixed questions of law and fact de novo.

On the merits, first, the Court addressed Thomas’s argument that a trial court instruction on the definition of reasonable doubt that used the phrase "restrain from acting" rather than "hesitate to act" violated due process. The Court held that even though the trial court’s "restrain from acting" verbiage lessened "to some extent" the prosecution's burden of proof, it was "not enough to render its entire instruction unconstitutional."

Second, the Court addressed Thomas’s argument that the Commonwealth’s closing argument at trial improperly invited the jury to consider Thomas’s future dangerousness, and created an unacceptable risk that the jury erroneously believed that Thomas could be released on parole if not sentenced to death. After examining the record, the Court ruled that the Commonwealth’s closing argument was not improper.

Third, the Court addressed Thomas’s argument that trial counsel was ineffective for failing to life-qualify the jury. Noting that the Supreme Court has never imposed on trial counsel the obligation to life-qualify a jury, and that no relevant "prevailing norms of practice" required life-qualifying a jury, the Court found in reviewing the record no indication of a need to life-qualify the entire jury, and no evidence suggesting any probability that trial counsel’s life-qualifying the entire jury would have resulted in at least one juror voting to sentence Thomas to life imprisonment.

With respect to the Commonwealth’s cross-appeal, the Court, first, rejected the Commonwealth’s claim that the District Court improperly reviewed Thomas’s claims de novo, because the Court had found that there had been no state court "adjudication on the merits".

Second, the Court addressed the District Court’s conclusions that: 1) trial counsel was ineffective for failing to investigate and present mitigating evidence, and 2) that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently and therefore did not cure the prejudice resulting from trial counsel’s ineffectiveness in failing to investigate and present mitigating evidence.

In light of the presumption of effectiveness, the Court found that, as to trial counsel’s lack of mitigation investigation, the current state of the record – which it characterized as "sparse" – did not permit affirming the District Court’s conclusion that trial counsel was ineffective. But recognizing that further record development could establish trial counsel’s ineffectiveness in failing to investigate mitigation evidence, and that it was reasonably probable that such evidence could have persuaded at least one juror to vote against the death penalty, the Court remanded the case for a hearing on counsel’s investigative efforts.

Finally, the Court rejected the Commonwealth’s argument that a hearing was unnecessary because even if trial counsel was ineffective, Thomas was not prejudiced, as he waived his right to present mitigating evidence. The Court found that the record did not establish that Thomas knowingly and intelligently waived his right to present all mitigating evidence, and that he would have prevented trial counsel from doing so.