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Showing posts from September, 2009

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that…

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris’ motion to vacate an order of civil contempt.

Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents. Following his indictment, he and his co-conspirators filed bogus financial documents that purported to create liens against the judges and prosecutors in their cases. The Government moved for a restraining order, which was granted. Despite the restraining order, the conduct of Harris and his co-conspirators continued.

A show cause hearing was held, at the conclusion of which, Harris and his co-conspirators were held in civil contempt and ordered to be incarcerated until they stopped the activity involving the bogus financial documents. Harris’ co-conspirators ceased the activity - Harris did not. Consequently, his incarceration on the contempt order began thereafter in April…

Rehearing Granted in Case Where Court Previously Held That Prior Conviction for Resisting Arrest Qualified as a Crime of Violence.

On September 25th, in United States v. Stinson, No. 08-1717, July 28, 2009, the Court of Appeals granted rehearing in a case where it previously held that a prior conviction for resisting arrest was a crime of violence under U.S.S.G. § 4B1.1(a). Argument is scheduled for October 8, 2009.

Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court’s denial of Thomas’ § 2254 petition.

While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court. Thomas asked and was given permission to proceed pro se. However, prior to trial, the trial judge refused some of his requests for production of witnesses and documents - as a result, Thomas declined to participate in his own trial. Consequently, jury selection, trial, and conviction all took place in his absence and in the absence of any counsel. On appeal, Thomas complained of a Sixth Amendment violation - i.e. the trial judge’s failure to appoint counsel in his absence and for conducting the trial in his absence. The Delaware Supreme Court affirmed the conviction finding no error.

Thomas then filed a 2254 petition. The District Court denied the petition but, in doing so, granted a certificate of appealability "…

Brady Violations Compel New Trial in Capital Murder Case

In Simmons v. Beard, No. 05-9001 (3rd Cir. Sept. 11, 2009), a habeas proceeding arising from a capital murder conviction, the Third Circuit affirmed the district court’s grant of a new trial on the ground that the state prosecutors withheld several pieces of material exculpatory evidence in violation of Brady where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.

Writ of Audita Querela Under the All Writs Act Cannot Trump 28 U.S.C. 2255

The Third Circuit recently ruled that a federal prisoner may not seek relief via a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651, as long as his claim is cognizable under 28 U.S.C. § 2255. United States v. Massey, No. 09-1665 (3rd Cir. Sept. 11, 2009). This applies even if the client is unable to satisfy the AEDPA requirements for filing a second or successive § 2255 motion to vacate sentence.

Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity." United States v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009). The Court began by clarifying its prior holding in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). While Vargas's holding that it is not an abuse of discretion for a sentencing judge to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough, Vargas can no longer be read to prohibit a sentencing court's discretion to consider a fast-track disparity argument because such a disparity is warranted by Congress under 18 U.S.C. § 3553(a)(6). According to the Court, the fast-track issue is not confined to § 3553(a)(6), but, instead, a sentencing judge has the discretio…