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A SENTENCE TO STATUTORY MAX 30 YEARS - MORE THAN DOUBLE THE GUIDELINE RANGE AND DESPITE A 5K1.1 MOTION - AFFIRMED

In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin’s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.

Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B.L. and M.M., over the internet in exchange for money. She was subsequently charged with one count of production of a sexually explicit visual depiction of a minor, 18 U.S.C. § 2251(a), amongst other counts. Larkin entered a guilty plea pursuant to a plea agreement to this count alone (the rest were dismissed). Pursuant to the plea agreement, the Government moved for a downward departure under § 5K1.1 for Ms. Larkin’s substantial assistance to law enforcement authorities. Additionally, the plea agreement outlined a projected guideline range of 121-151 months imprisonment. Prior to sentencing the United States Probation Office calculated a higher guideline range than the plea agreement contemplated as i…

Case Remanded for Resentencing Due to Imposition of “General Sentence”

In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.

Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.

At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.

The Defendant appeal…

Interior Dog Sniff of Open Car Not Illegal Warrantless Search

In United States v. Pierce, No. 09-3865 (3d Cir., October 1, 2010), the defendant was stopped by a Delaware State trooper for speeding. According to the trooper, the defendant's responses to his questions led the trooper to remove the defendant from the vehicle. As the defendant complied with the trooper's command, he left the front driver's side door open. At some point, the trooper requested that a narcotics dog conduct a K-9 examination of the car. As the narcotics dog and its handler circled the vehicle, the dog alerted when he reached the front passenger side door. When the dog and its handler reached the driver's side of the car, the dog immediately jumped into the driver's seat through the open door. The dog intently sniffed the glove box and air vents. In response to the dog's alert, the trooper searched the glove box and discovered approximately one kilogram of cocaine and over $20,000 in cash.

Citing the Eighth and Tenth Circuits, the Third Circuit de…

PWID is Lesser-Included Offense of PWID Within 1000 Feet of School

In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant's vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered ma…

CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable

U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were u…

Circuit Applies Skilling, Reverses Honest Services Conviction

In United States v. Riley, 2010 WL 3584066 (3d. Cir. Sept. 16, 2010), the Court held that the district court’s instruction to the jury that honest services fraud did not require scheme to defraud another to obtain money or property, and could instead be based on violation of duty of honest, faithful, and disinterested service, was plainly erroneous. Riley is the Third Circuit’s first application of the Supreme Court’s recent decision in Skilling v. United States, --- U.S. ----, 130 S.Ct. 2896 (2010), holding that to remain within constitutional limitations, the honest services statute at § 1346 is limited to “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”

Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violat…

Circuit Affirms Inventory Search into Closed Containers

In United States v. Mundy, 2010 WL 3547435 (3d. Cir. Sept. 14, 2010), the court held that (1) the city police department's vehicle stop and impoundment guidelines provided sufficiently standardized criteria regulating scope of permissible inventory search, including searches of closed containers; (2) the officer's reliance on the guidelines was not a pretext for an investigatory search of vehicle.

Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit an…

Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo

In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703. In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.On appeal, the Government argues that the Act does not require it to demonstrate Rule 41 probable cause, but rather, under Sec. 2703(d), only “specific a…

Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.

United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses. The most significant legal challenge involved a willful blindness jury instruction.Stadtmauer argued that the Supreme Court’s opinion in Cheek v. United States, 498 U.S. 192 (1991), precluded a willful blindness instruction. Cheek holds that criminal tax liability does not attach to a person who, in good faith, is ignorant of a legal duty, misunderstands that legal duty, or believes that such a legal duty does not exist. In accord with several other circuits, the Third Circuit concluded that a willful blindness instruction does not run afoul of C…

In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

In Gov’t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant’s possession was a legal necessity.

Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm. At trial, Lewis testified that after falling asleep at George’s home, he awoke to find George sexually assaulting him. Lewis left, returning a few days later to collect some belongings. When Lewis arrived, George became enraged. He brandished a firearm, fired shots into the ground, and ordered Lewis to get into the passenger seat of George’s car. While George was driving, he began insulting George and jabbing the gun into his head. A struggle ensued, the gun fired several times, Lewis gained control of the gun and shot George in self-defense.

At the close of trial, the Government and Lewis submitted p…

Third Circuit holds Fed. R. App. P. 4(b) not jurisdictional, and explicates the rule on questioning a defendant at trial on post-arrest silence.

In Gov’t of V.I. v. Martinez, No. 08-2694 (3d. Cir. Sept. 8, 2010) the Third Circuit clarified two rules, on procedural, one substantive.

The defendant was convicted in the Territorial Court of the Virgin Islands for kidnapping for rape. The Appellate Division of the District Court of the Virgin Islands affirmed.Martinez then appealed to the Third Circuit -- late. The procedural issue that the Third Circuit addressed was Martinez’s untimely filing of his notice of appeal.

The Court ruled that the time limitation in Federal Rule of Appellate 4(b), while a "rigid" deadline, is a claim-processing rule subject to forfeiture, and not jurisdictional. In other words, if a criminal defendant files a late notice of appeal, and the Government moves to dismiss the appeal for filing out of time, the Court will dismiss the appeal. But if the Government fails to make a motion to dismiss, or if the Government fails to respond to the Clerk’s Order requesting comment on possible lack of jurisd…

Third Circuit Denies Victim Mandamus: district court did not abuse discretion in denying motion to allow victim's attorney to appear at sentencing.

Professor Berman's post on this interesting Crime Victims' Rights Act case, including a link to the Third Circuit's opinion, is available at http://sentencing.typepad.com/, in the blogging from Thursday, September 23, 2010. Short version: no abuse of discretion in denying motion to allow victim's attorney to appear at sentencing because district court recognized victim's right to be heard, and government was advocating for victim (e.g., by filing victim's request for restitution and attorneys fees).

New Impeachment Evidence Can Serve as Basis for New Trial When Evidence Suggests Defendant was Wrongly Convicted

In United States v. Quiles, Nos. 09-1667 and 09-1686 (August 17, 2010) , the Third Circuit affirmed the district court’s denial of a new trial based on a government witness’ subsequent indictment on sexual assault charges finding that this new evidence was merely impeaching evidence on an unrelated matter that did not go to the heart of the instant case.

Defendants were convicted of money laundering based largely on the testimony of a confidential informant who, following the trial, was indicted in an unrelated matter on charges of child rape and other sexual crimes. Defendants moved for a new trial under Fed. R. Crim. 33 and the district court denied the motion asserting the new evidence was inadmissible impeachment evidence citing United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000), that mere impeachment evidence could not form the basis for granting a new trial.

The Third Circuit applied a de novo standard of review and clarified their holding in Saada. The Court held that Rule …

Sex Offender Requirement to Admit Guilt as Condition of Parole Does Not Violate First Amendment, Due Process or Ex Post Facto

In Newman v. Beard, No. 08-2652 (August 16, 2010), the Third Circuit affirmed the district court’s dismissal of petitioner’s amended complaint which asserted that the Department of Corrections’ (DOC) requirement that sex offenders admit guilt as a prerequisite to entry into a treatment program, the completion of which is required to be eligible for parole under 42 Pa. Cons. Stat. Ann. § 9718.1, violates petitioner’s: 1) First Amendment right; 2) right to due process; and 3) the Ex Post Facto Clause of the Constitution.

Newman was convicted of two rapes and related sexual offenses. While serving his sentence, Pennsylvania enacted new legislation requiring sex offenders to complete a treatment program to be eligible for parole. A DOC regulation required all inmates to admit guilt in order to attend the program. Newman, who exhausted all his direct and post-conviction appeals, refused to admit guilt and thus was denied entrance into a treatment program and further denied parole.

The Court …

Rehabilitative Needs Can Be Considered to Determine Whether to Revoke Supervised Release and the Duration of Imprisonment Upon Revocation

In United States v. Doe, No. 09-2615 (August 16, 2010), the Third Court affirmed revocation of Doe’s supervised release and imposition of a 24 month term of imprisonment followed by an additional 12 months supervised release on the basis that Congress intended, in 18 U.S.C. § 3583(e), that District Courts should consider a defendant’s medical and rehabilitative needs in assessing whether to revoke supervised release and the duration of imprisonment that is appropriate upon revocation.

Doe pleaded guilty to possession with intent to deliver five grams or more of crack cocaine and was sentenced to 30 months imprisonment followed by 4 years of supervised release, the terms of which provided that Doe may not possess or use a controlled substance. Doe violated these terms on several occasions by testing positive for use of cocaine. Following a third petition on revocation of supervised release, the district court revoked Doe’s supervised release explaining to the defendant that "...I a…

Search Incident to Execution of Warrant Upheld

U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes. The bar was in a high-crime area and was patronized by some with histories of violence, firearm possession, and drug activity. Roughly four months before the raid, a person had been shot at the bar, and a few weeks before the raid an individual was arrested for illegally possessing a firearm inside the bar.

Officers secured the premises inside and outside the bar. Five people-including Allen, who was on duty as a security guard-were standing directly in front of the bar. The SWAT team, wearing armor and with guns drawn, ordered them to lie face down on the sidewalk with their hands in front of them, and explained that they would be detained just long enough to ensur…

In first treatment of Gant, Third Circuit applies limited search-incident-to-arrest rule beyond vehicle searches

In its first treatment of Arizona v. Gant, 129 S. Ct. 1710 (2009), which overruled the Belton rule allowing police to search a suspect's car incident to his arrest even if the suspect no longer has access to the car at the time of the search, the Third Circuit has held that Gant applies to all searches incident to arrest, not just to car searches. The case is United States v. Shakir, No. 09-2665 (3d Cir. Aug. 10, 2010).

The search-incident-to-arrest exception to the warrant requirement permits police to search an arrestee's person and "grab area," to ensure officer safety and guard against evidence destruction. Fueled by Belton, many courts had expanded the exception to permit search of the arrest area even after the suspect no longer conceivably has access to that area (e.g., when he had already been transported from the scene)-- unmooring the exception from its rationale.

Gant put an end to that, but like Belton, was decided in the vehicle context. The Third Cicuit h…

Fractured Third Circuit panel clarifies government waiver rules and previews looming Fourth Amendment issue

In a rare, three-opinion panel decision, the Third Circuit has weighed in on -- but, for now, has not resolved -- an important issue concerning the Fourth Amendment exclusionary rule: when a suspect is unlawfully seized, but then breaks away and discards evidence while being chased by police, should the evidence be suppressed? The case is United States v. Dupree, No. 09-3391 (3d Cir. Aug. 6, 2010). The district court suppressed the evidence in question, a gun, and the government appealed. The Third Circuit affirmed the suppression order, with one judge concluding that the government had waived the suppression argument it made on appeal, and another judge concluding that the order should be affirmed on the merits.

A standard exclusionary rule "fruits" analysis would lead to suppression when a "forced abandonment" occurs after an unlawful seizure, since there is no meaningful causal attenuation between the unlawful seizure and the discovery of the discarded evidence. …

Upholding § 922(k) Ban on Unmarked Firearms, Court Charts Course for Second Amendment Challenges

In a ruling upholding 18 U.S.C. § 922(k), which bars possession of firearms with obliterated serial numbers, the Court sets forth an extensive gloss on the proper approach to Second Amendment challenges under the Supreme Court’s path-breaking decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). Heller concluded that the Second Amendment confers an individual right to keep and bear arms, at least “for the core purpose of allowing law-abiding citizens to ‘use arms in defense of hearth and home.’” Elaborating on that ruling, today’s decision in United States v. Michael Marzzarella, Third Circuit No. 09-3185, is clearly at pains not to open any Pandora’s box. Defendants charged with gun offenses may perhaps find instead a mixed bag.

On the one hand, dicta in the new decision further entrenches a proposition as to which Heller likewise urged it would not “cast doubt”: the Second Amendment “affords no protection,” the Circuit says, “for the possession of dangerous and unusual …

Court Construes Meaning of Federal “Official” for Purposes of Threat Statute; Rejects Self-Representation Challenge

In United States v. Michael Bankoff, Nos. 08-3275 & 08-3688 (July 27, 2010), the Court holds that the federal statute criminalizing certain threats of federal “officials” extends to both “officers and employees.” Separately, the Court determines that there was no abuse of discretion in a district court ruling temporarily barring the defendant from representing himself.

Section 115 of Title 18, enacted in 1984, defines certain crimes relating to threats of a federal “official” “whose killing would be a crime under” 18 U.S.C. § 1114. Section 1114 in turn covers “any officer or employee of the United States.…” Michael Bankoff argued that § 115’s use of the term “official” limited that statute’s scope to “officers” within the meaning of § 1114, thus excluding “employees.” The district court agreed and instructed the jury that each of three Social Security Administration employees allegedly threatened by the defendant had to be “authorized to exercise his or her discretion in the perfor…

"Career Offender" Designation Not Always Fatal to Sentence Reduction Motion Pursuant to Crack Cocaine Guideline Amendments

After an extended engagement with some very fine print, the Court holds in United States v. Glenn Flemming, No. 09-2726 (July 27, 2010), that a notable group of defendants are eligible for sentence reductions pursuant to the Sentencing Commission’s retroactive lowering of crack cocaine offense levels. These are all who were designated as career offenders under pre-2003 versions of the Sentencing Guidelines but who, following a determination that the career offender enhancement overstated their actual criminal history, received downward departures to points within a sentencing range yielded by the crack cocaine guideline. The Court also strongly suggests, without deciding, that the opposite result will hold for defendants sentenced under later versions of the Guidelines.

Glenn Flemming’s crack cocaine offenses were determined to have involved a quantity of between four and five grams. The offense conduct occurred during a period that called for application of the 2001 version of the Gui…

Defendant's Repeated Presence at Drug Transactions Coupled With Phone Calls Sufficient to Support Aiding and Abetting Conviction

In United States v. Mercado, No. 09-2681 (3d Cir., July 7, 2010), the three defendants were indicted for aiding and abetting the possession of more than 100 grams of heroin with the intent to distribute within 1000 feet of a school as well as the substantive counts. The only evidence presented regarding Defendant Mercado’s participation in the charged offenses was testimony from Co-defendant Rodriguez-Nunez that he observed Mercardo in the passenger seats of the vehicles driven by Co-defendant Morrisette when Rodriguez-Nunez and Morrisette met to conduct the drug exchanges. Specifically, Rodriguez-Nunez testified that he received drugs through the passenger-side window, where Mercado was seated as the passenger. Evidence was also presented that Morrisette called Mercado during the same time period in which he had received and returned calls from Rodriguez-Nunez. Rodriguez-Nunez admitted that he did not deal directly with Mercado, but only with Morrisette. The court noted that this was…

Conviction vacated due to prosecutorial misconduct

In United States v. Liburd, No. 09-3156 (D.VI 06/09/10), the Court of Appeals vacated Mr. Liburd’s conviction in light of repeated prosecutorial misconduct.

Mr. Liburd was in the St. Thomas airport intending to catch a flight to Atlanta. En route to his plane he passed through TSA security and one of the officers noticed on the scanner an image of two large organic masses located within his carry-on bag. He was therefore referred to an inspection station. While there, another TSA officer searched through his bag and asked about the two brick-like objects - Mr. Liburd told the officer that the bricks were “cheese.” Mr. Liburd was subsequently permitted to continue on to his flight. Then, while waiting for his flight, yet another TSA officer approached Mr. Liburd for a “random inspection” because he appeared to be nervous. Upon second search of his carry-on bag, Liburd made a statement that “there’s something in my bag” - the search revealed that the two brick-like objects were over 2 k…

Conviction for Possession of a Weapon in a Prison affirmed

In United States v. Holmes, No. 09-2846 (W.D.PA 06/07/10), the Court of Appeals affirmed Mr. Holmes conviction for possession of a weapon in a prison.

Holmes was a prisoner at FCI - Loretto who was searched by prison guards and found to be in possession of a utility-knife blade. Holmes was subsequently charged with one count of possessing a weapon in a prison in violation of 18 U.S.C. § 1791.

Holmes proceeded to trial, was convicted and sentenced to 24 months incarceration. On appeal he made the following three claims: 1) the evidence at trial was insufficient for the jury to conclude the blade was a “weapon” within the meaning of 18 U.S.C. § 1791; 2) that the statute requires the government prove Holmes “knew” the blade was a weapon; and 3) that the district court erred when it refused to charge him with misdemeanor possession of a “prohibited object” as a lesser included offense.

As to the first claim, that the evidence was insufficient for the jury to conclude the blade was a “weapon,…

Third Circuit Upholds Free Speech Rights of Anti-abortion Protestor Arrested for Demonstrating in Front of Liberty Bell Center.

In United States v. Michael Marcavage, No. 09-3573 (3d Cir. June 16, 2010), the defendant and some 20 others demonstrated in an anti-abortion protest – with graphic signs and use of a bullhorn – in front of the entrance to Philadelphia’s Liberty Bell Center in Independence National Historical Park, where a long line of tourists were waiting to enter. Although Marcavage did not have a written permit as National Park Service regulations require, a park ranger stated that he would give the demonstrators a verbal permit, but they had to move away from the entrance to a nearby designated demonstration area. When Marcavage refused to move, park rangers arrested him for violating the terms of the permit and interfering with Park Service functions, both misdemeanors. A U.S. Magistrate Judge in the Eastern District of Pennsylvania found him guilty on both counts after a two-day trial, sentencing him to 12 months’ probation. On appeal to a U.S. District Court Judge, the conviction and sentence …

U.S. Supreme Court Severely Restricts Scope of Sentence Reduction Proceedings under 18 U.S.C. § 3582(c)(2).

As suggested in this Blog’s May 2009 entry, the Third Circuit’s decision in United States v. Dillon, 572 F.3d 146 (3d Cir. 2009) has, indeed, effectively "ended crack litigation", as the Supreme Court, by a 7-1 vote, affirmed the Third Circuit in Dillon v. United States, No. 09-6338 (U.S. June 17, 2010). In brief, Justice Sotomayor’s majority opinion holds that proceedings brought by a defendant’s motion for sentence reduction under 18 U.S.C. § 3582(c)(2) are not governed by the same principles as standard plenary sentencing proceedings – notably, application of United States v. Booker, 543 U.S. 220 (2005) – but rather are limited to the specific reduction permitted by the Sentencing Commission’s relevant policy statement. The effect of Dillon, in light of the recent two-level reduction for crack offenses in the USSG § 2D1.1 drug tables, is to limit eligibility for that reduction only to defendants whose calculated Sentencing Guidelines range is actually reduced by two level…

"Clearly Established Federal Law" is Determined as of the Date of the Relevant State-Court Decision Subject to Habeas Review

Greene v. Palakovich, No. 07-2163 (3d Cir. May 28, 2010). A split panel of the Third Circuit held that for purposes of the standard of review for a federal habeas claim set forth in AEDPA, 28 U.S.C. §2254(d)(1), "clearly established Federal law" should be determined as of the date of the relevant state-court decision subject to habeas review. Greene was convicted of second degree murder, robbery and conspiracy and sentenced to life imprisonment. On appeal to the Pennsylvania Superior Court, Green argued, inter alia, that the admission at trial of redacted statements of his co-defendants violated the Confrontation Clause. The Superior Court rejected that claim in a decision dated December 16, 1997. That decision became the final state court decision for purposes of habeas review. Greene’s conviction became final on July 28, 1999. In the meantime, however, the Supreme Court decided Gray v. Maryland, 523 U.S. 185 (1998), on March 9, 1998, which supported Greene’s claim. The iss…

Drug Trafficking Conviciton Affirmed - No Problems with Time Frame of Conspiracy, Sufficiency of Evidence & Chain of Custody

United States v. Rawlins, No. 08-2948 (3d Cir. May 26, 2010). The Third Circuit affirmed the defendants drug trafficking conviction and rejected his arguments that:1) the indictment was invalid because it failed to allege the proper time frame for the conspiracy; 2) the evidence was insufficient to sustain the conviction, and; 3) there were gaps in the chain of custody of the evidence.

Rawlins was convicted of several counts of conspiracy and possession with intend to distribute cocaine. The evidence at rial suggested that Rawlins was a baggage handler at an airport and that he participated in a cocaine smuggling operation by switching tags from legitimate luggage to baggage containing cocaine. His first argument on appeal challenged the validity of the indictment which charged conspiracy "from a time unknown and continuing to September, 2004." The court of appeals rejected that argument because the overt acts alleged in the indictment "adequately limited the time frame …

Child Pornography / Warrants / Sufficiency / Evidence of Age

U.S. v. Vosburgh, 2010 WL 1542340, April 20, 2010. Vosburgh appealed his conviction following a jury trial of possession and attempted possession of child pornography (18 U.S.C. § 2252). The investigation of Vosburgh began when an IP address linked to his account attempted to download child pornography on the internet. This, in addition to assertions that child pornography collectors maintain materials and rarely dispose of them, was the basis for issuance of a warrant to search Vosburgh’s apartment four months later. In his apartment agents seized an external hard drive which was later found to contain hundreds of images of "child erotica" (defined as sexually suggestive photos not sufficiently lascivious to meet the definition of sexually explicit conduct), and a thumbnail image file which contained two images of child pornography. The two images did not exist as independent picture files on the computer. The government asserted at trial that the existence of the thumbnail…

Defendant Liable for Co-conspirator’s Loss, Applying Victim Enhancement to One Conspirator Did Not Create Unwarranted Disparity

U.S. v. Robinson, 2010 WL 1610582, (April 22, 2010). Robinson pled guilty to conspiring to steal and convert United States Treasury checks in violation of 18 U.S.C. §§ 641 and 371, arising out of a scheme led by an individual named Jeffress, who provided "checkcashers"-Robinson and other individuals-with stolen Treasury checks and fake id, and drove them to checkcashing stores.

On appeal Robinson challenged the district court's calculation of his sentencing guideline range of 27 to 33 months, as it included the number and dollar amount of checks converted by another checkcasher, with whom Robinson contended he did not conspire. The Circuit affirmed the sentence, finding that the extra loss was properly attributable under § 1B1.3 given Robinson’s implicit agreement to cash stolen checks for Jeffress, the leader of the conspiracy, such that checks cashed by other checkcashers were reasonably foreseeable and within scope and in furtherance of their joint criminal activity. R…

Sentence Below Career Offender Guideline Found Procedurally Unreasonable

United States v. Merced, 2010 WL 1542263, April 20, 2010. Merced pleaded guilty to a drug possession charge, his career offender guideline range was 188 - 235 months. At sentencing, the district court pointed to several factors in support of a below-guideline range, including the "street level" nature of Merced's previous crimes, his own possible drug problem, his troubled childhood, his strong family relationships, and the fact that his longest prior prison term was, at most, four years. The court addressed most of the § 3553 factors, but did not mention unwarranted disparity. The court also noted at one point "I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it's appropriate." The court ultimately sentenced Merced to 60 months.
The Third Circuit, in an opinion thoroughly recapping reasonableness review precedent, found the sentence procedurally unreasonable based on…

Securities Fraud / Fiduciary Obligations / Omission Liability / Materiality Expert

In U.S. v. Schiff, --- F.3d ----, 2010 WL 1338141, April 07, 2010, defendants were "high-ranking corporate executives" at a pharmaceutical company, indicted for orchestrating a securities fraud scheme in violation of 15 U.S.C. § 78j(b) and SEC Rule 10b-5. The government filed an interlocutory appeal over a district court order addressing several contested theories of liability as well as expert witness issues under Daubert.

In a lengthy opinion only briefly summarized here, the Court first addressed, and rejected, the viability of the government's legal theory that defendant had a fiduciary duty to rectify codefendant's allegedly material misstatements in subsequent SEC filings. Absent a duty to disclose, silence is not fraudulent or misleading under Rule 10b-5. Pursuant to Oran v. Stafford, a duty to disclose under Rule 10b-5 may arise only in three circumstances: when there is [1] insider trading, [2] a statute requiring disclosure, or [3] an inaccurate, incomplete …

Court Finds Inadvertent Out-of-jurisdiction Arrest Reasonable; Declines to Address Sentencing Entrapment and Manipulation Doctrines

In U.S. v. Sed, --- F.3d ----, 2010 WL 1292152 (Apr. 6, 2010), defendant, convicted of conspiracy to distribute and PWID, challenged (1) the validity of his arrest in Ohio by Pennsylvania state police and (2) the denial of a sentencing reduction based on sentencing entrapment and/or manipulation.

First addressing Sed’s arrest, the Circuit held it reasonable under Fourth Amendment despite the fact that Pennsylvania state police violated Ohio law by seizing him outside of their jurisdiction. The Court first rejected the notion that any violation of state law constituted an ipso facto violation of the Fourth Amendment, citing Virginia v. Moore, 553 U.S. 164 (2008). Next, the Court found the arrest reasonable under the totality analysis, based on the fact that defendant had committed a serious drug crime in Pennsylvania, was acting in furtherance of conspiracy to distribute drugs in Pennsylvania at time he was seized, was responsible for a last-minute change of plans such that the secon…

"Seemingly innocent" activity sufficient to support probable cause for search warrant in light of initial tip and subsequent police surveillance

In United States v. Stearn, 08-3230 (3d Cir. March 9, 2010), the Third Circuit reversed a district court's suppression order after concluding that the searches conducted were supported by probable cause. Based on a tip from a confidential informant that defendants Michael and Joseph Doebley were selling cocaine powder supplied to them by Edward Stearn, police officers began surveillance of the defendants' homes and vehicles. The officers observed two controlled buys of cocaine involving one of the defendants, real estate records, utility bills, and police observation corroborated the informant's statement that defendants' cocaine business operated out of a gym, and the informant demonstrated knowledge of defendants' homes, cars, and daily routines. After the surveillance was completed, officers sought search warrants for five properties and 2 vehicles owned or frequented by the defendants. A magistrate judge issued the warrants and drugs, drug paraphernalia and mon…