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Tuesday, September 29, 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 in a civil enforcement proceeding, a "non-owner operator" is liable under the act "if he or she has ‘significant or substantial or real control and supervision of a project’" and that there is no difference in the criminal context. That based on the record, there was substantial evidence that Starnes "exercised significant control and supervision" over the project and that was sufficient to survive the motion for judgement of acquittal.

Second, Starnes and George both argued that the District Court erred in denying their motions for judgement of acquittal on the false-statement counts. Specifically that the Government’s evidence was insufficient as to "falsity" or "federal-government jurisdiction" - both necessary elements of a false statements violation. The Third Circuit quickly dismissed the arguments as to "falsity" indicating that both defendants arguments rested on the faulty premise that the defendants were charged and convicted of falsely representing the amounts of asbestos in the air samples taken from the site. To the contrary, the Government’s evidence was that the samples weren’t analyzed at all - a fact that went uncontested. As a result, the evidence was sufficient as to "falsity."

As to "federal-government jurisdiction" both defendants argued that the federal government lacked jurisdiction because the reports were sent to the Virgin Islands Housing Authority (VIHA), which wasn’t a federal agency. The Third Circuit quickly dismissed this claim as well stating that it’s enough that the statement pertains to a "matter in which the executive branch has ‘the power to exercise authority.’" In other words, the fact that the VIHA was funded by HUD was enough to satisfy "federal government jurisdiction."

George alone argued that the district court erred in denying his motion for judgment of acquittal on the false statement count because, as he put it, the Government failed to demonstrate that he had the "specific intent" to violate the false statements statute. The Third Circuit rejected this argument as well. In doing so, the Court noted that the statute identified the mens rea as "knowingly and willfully" rather than "specific intent." The Court was not willing to decide whether "specific intent" was "shorthand" for "knowingly and willfully." Rather, the Court chose to focus on the generally accepted definitions of "knowingly" and "willfully" and applied them to the statute at hand. The Court concluded that "knowingly" requires the Government to prove the defendant had "knowledge of the facts that constitute the offense." With analysis, the Court of Appeals eventually concluded that "willfully," as it is applied to the false statements context (§ 1001), requires the Government to prove the defendant had "knowledge of the general unlawfulness of the conduct at issue." Based on these standards, the evidence presented was sufficient to survive the motion for judgment of acquittal.

Third, both defendants challenged the district court’s decision to admit the testimony of a witness, David Dugan. The decision to admit or exclude evidence was reviewed for abuse of discretion. Dugan testified regarding asbestos samples he collected which had high levels of friable asbestos. The district court ruled his testimony was relevant to demonstrate dangerous levels of friable asbestos that were likewise present in buildings worked on by the defendants. The defendants, in turn, argued that the district court’s decision to admit this testimony was an abuse of discretion because the witness collected samples from a building they didn’t work on and his collection occurred at a much later date than the events that led to their prosecution. Again, the Court of Appeals disagreed with the defendants because the Government demonstrated that all of the buildings in the complex (including the ones worked on by the defendants and the one in which Dugan collected samples) were made of the same materials and had no structural changes - therefore a reasonable inference could be made that the buildings worked on had dangerous levels of asbestos. Consequently, the testimony was deemed admissible under FRE 401 and 402. Additionally, the Court of Appeals summarily rejected the argument that the testimony of Dugan was inadmissible under FRE 403 because there was no demonstration of "unfair prejudice."

Finally, both defendant’s appealed the district court’s determination of their sentences. The review of the district court’s sentencing decisions was for reasonableness under a deferential abuse of discretion standard. And as the Court of Appeals put it, these arguments were "readily dispatched." (FISHER, JORDAN, and STAPLETON, opinion by FISHER).

Monday, September 28, 2009

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 of 2004. Several months later, Harris went to trial on the underlying federal charges and was convicted on all counts. He was sentenced to 188 months imprisonment.

Still, after the conviction, Harris continued to send out bogus financial documents - as a result, he remained incarcerated on the civil contempt order for the past 5 years, which has tolled the commencement of his 188 month term of imprisonment.

In 2007 Harris filed a pro se motion with the District Court arguing the lack of jurisdiction of the federal courts - the District Court interpreted the motion to be one requesting the termination of the civil contempt sentence. That motion was denied in 2008.

On appeal, Harris argued that the contempt order was a de facto order of criminal contempt (rather than civil contempt) and therefore argued that it must be lifted for two reasons: 1) that the district court cannot continue to hold him after the termination of his initial criminal proceeding; and 2) that due process provides a temporal limitation on the district court’s contempt authority. The Third Circuit rejected both arguments.

As to the first argument, the Court of Appeals held that the termination of the underlying proceeding did not render the contempt order moot - rather, the contempt order remains ripe until and when Harris ceases to harass the judges and prosecutors. Therefore the decision to deny the motion to vacate was not an abuse of discretion.

As to the second argument, the Court of Appeals refused to adopt Harris’ argument that his case was analogous to that of the recalcitrant witness who refused to testify - that the continued incarceration of one where there is "no substantial likelihood" they will ever comply, should cease. The Court held his circumstances distinguishable - that in his case, he held the keys to his release and that the Court would not "dissolve a lawful order ... merely because the contemnor persists in violating it."

The Court ultimately disagreed that the civil contempt order in Harris’ case became a de facto criminal contempt order holding that an "order of civil contempt will only become punitive if a contemnor is unable to comply with the order, or if the circumstances indicate that a court is maintaining the contempt for an impermissible punitive purpose." Here, Harris made the choice to continue the conduct - the civil contempt order is in place to coerce him to stop. Again, he has the keys to his release and the order does not, under these circumstances, violate due process.

In the concurring opinion, Judge DuBois, noted that when confinement pursuant to a civil contempt order ceases to become coercive it loses its remedial effect and becomes punitive and that under those circumstances the contemnor must be released and prosecuted for criminal contempt (with the right to a jury trial). Neither the majority nor Judge DuBois suggest a set time limit for release and subsequent criminal prosecution. Judge DuBois does, however, suggest that a district court in these circumstances must determine whether continued confinement continues to have the coercive effect - if not, then release and prosecute. (BARRY, SMITH, and DuBOIS, majority opinion by BARRY, concurring opinion by DuBOIS).

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 "to determine whether [Thomas’] right to a fair trial was violated when the [trial judge] proceeded with his trial in absentia without appointing counsel to represent him."

On appeal, the Third Circuit framed the issue as follows: "whether the Delaware Supreme Court committed constitutional error in allowing the case to proceed to trial with no one present for the defense." Initially, the Court held because this precise issue had never been before the Supreme Court, it could not be"contrary to" Supreme Court precedent. The Court then focused on the "closer issue" - whether the Delaware Supreme Court’s decision was an "unreasonable application of" clearly established federal law under § 2254(d).

The Court recognized a defendant’s right to proceed pro se, a trial judge’s ability to terminate self-representation in the event of "serious and obstructionist misconduct," and the trial judge’s ability to appoint stand-by counsel. In recognition of these rights, the Third Circuit, citing Faretta v. California, 422 U.S. 806, 835 (1975) and McKaskle v. Wiggins, 465 U.S. 168 (1984), the held that while Thomas proceeded pro se and the trial judge could have appointed standby counsel, the judge was not required to do so. That the core "Faretta right" is for a pro se defendant to maintain control over the presentation of his case and appointment of standby counsel can "erode" that right. So when Thomas voluntarily declined to participate in his trial in protest of alleged "constitutional violations," appointment of standby counsel would arguably have violated Thomas’ right to control his own defense - i.e. in the absence of Thomas, standby counsel’s participation over his objection would permit counsel to make or interfere with his tactical decisions, witness questioning, etc. Ultimately the Court concluded: "Given the weighty interests on both sides of the question - a defendant’s interest in controlling his or her defense against the public’s interest in fair and effective criminal trials - and the lack of guidance from the Supreme Court on this precise issue, we cannot conclude that the Delaware Supreme Court’s decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. " Both the majority and Judge Pollak in his concurrence, suggested that had this case come before them on direct appeal that the result would have been different. That counsel must be appointed in these circumstances. But under AEDPA, the result must stand. (SLOVITER, HARDIMAN, and POLLAK, majority opinion by SLOVITER, concurring by POLLAK).

Thursday, September 24, 2009

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.

Wednesday, September 23, 2009

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.

Tuesday, September 15, 2009

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 discretion to consider a fast-track variance under the totality of the § 3553(a) factors.

The Court rejected the Government's and other opposing Circuit's congressional policy arguments as "illusory," "superficial," and "an attempt to manipulate the advisory character of the Guidelines." It found that the fast-track departure scheme did not exemplify the Sentencing Commission's exercise of its characteristic institutional role in developing the Guidelines. Finally, it disagreed with the Government's argument that affording district courts discretion on this issue would create even more disparity.

With regard to what circumstances would justify a downward variance for fast-track disparity, the Third Circuit held that a defendant must establish: (1) that he would qualify for fast-track disposition in a fast-track district and (2) that he would have taken the fast-track guilty plea if offered. Because Mr. Arrelucea-Zamudio had met these requirements in his case, the Third Circuit vacated his sentence and remanded his case for the District Court to consider his fast-track disparity argument.

Mr. Arrelucea-Zamudio was represented by Assistant Federal Public Defender Maggie Moy and Research and Writing Attorney Julie McGrain of the Federal Public Defender's Office for the District of New Jersey (Camden).