Pennsylvania Resisting Arrest is Crime of Violence Under Begay

In United States v. Stinson, No. 08-1717, the Third Circuit recently ruled that Pennsylvania Resisting Arrest is a crime of violence under Begay. The Pennsylvania statue specifies two ways in which a defendant may resist arrest: (1) by creating a substantial risk of bodily injury to an officer or another; or (2) by employing means justifying or requiring substantial force to overcome the resistance. The Court held that the first "fits squarely within the definition of a crime of violence in the residual clause." Under Begay, the Court had to analyze whether the second "typically involve[s] purposeful, violent, and aggressive conduct." The Court held that it does.


"Such conduct poses as great or greater a risk as burglary or extortion . . . . [R]esisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public . . . . [T]he offense engenders a significant risk of conflict and, correspondingly, a significant risk of injury." It is "by definition, purposeful, aggressive and violent," because the statute requires "the intent of preventing a public servant from effectuating a lawful arrest . . . . and knowingly engaging in conflict with another." [Note: This seems to invoke the "powder keg" theory rejected by the Supreme Court in Chambers. The Court purports to distinguish resisting arrest from its walk-away escape decision, Hopkins, in a footnote, however: "[Misdemeanor escape 'is conduct materially less violent and aggressive than the enumerated offenses." . . . Such is not the case with resisting arrest."]


Stinson had argued that because resisting arrest could include passive resistance, it should not be a categorical crime of violence, relying on Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. Ct. 2007), a case in which the defendant and her husband had interlocked arms and legs and refused to respond to commands of officers. The Court found that Thompson was "hardly passive," yelling and waving her hands in an attempt to scare an officer's horse, "causing the animal to rear up," and struggling with the officers "for a few minutes." The Court "found no decision . . . that affirmed a conviction for resisting arrest based on a defendant's inaction or simply 'lying down or 'going limp.'" [Note: This seems to ignore the reality that most resisting arrest prosecutions are resolved without a trial, so there are few reported cases.]

The Court then asserted that the "'ordinary' or 'typical' fact scenario underlying resisting arrest convictions in Pennsylvania" involves purposeful, violent and aggressive conduct.

This was a disappointing result, especially because the Court had granted panel rehearing of the first adverse decision. The Third Circuit Defenders participated as amicus, and David McColgin, EDPA, presented very strong oral argument on behalf of Mr. Stinson.

Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.

The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have taken the opposite view, that the unit of prosecution is the firearm possession (or use), and that the language of the statute and legislative history could be interpreted to support both sides. For these reasons, the Court looked to the rule of lenity in reaching its decision, finding "without hesitation that ‘[a]fter ‘seiz[ing] everything from which aid can be derived’ we are ‘left with an ambiguous statute,’" and adding, "[a]pplication of the rule of lenity is particularly appropriate in the context of § 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions."

Court Continues to Require Careful Tailoring of Internet Restrictions on Sex Offenders

In United States v. Heckman, 08-3844, the Third Circuit extended its line of precedent (Crandon, Freeman, Voelker, Thielemann) requiring district courts to carefully tailor internet restrictions for sex offenders on supervised release. Heckman had a lengthy history of child molestation, but he had never been convicted of using the internet to entice or exploit a child -- the type of conduct the Court has previously said is essential to supporting Internet bans. Nonetheless, on the instant conviction for transporting child pornography, the district court imposed a lifetime, unconditional ban on Internet access. The Court rejected this condition, refusing to make the "inferential leap" that Heckman would eventually progress to using the Internet directly to harm a child. The Court also noted that there are alternative, less restrictive means of controlling an offender's Internet use, including computer monitoring conditions. The Court made clear, however, that it was not holding that limited Internet bans of shorter duration can never be imposed as conditions of supervised release in child pornography cases.

The Court rejected Heckman's challenge to a mental health condition that he had argued impermissibly delegated too much authority to Probation. It read the condition as requiring participation in mental health treatment, leaving only the details to be set by Probation, which is permissible under the Court's precedent in Pruden. The government had conceded that a condition governing contact with minors was impermissible because it gave full discretion over Heckman's contact with minors (including his own family members) to Probation.

Congratulations to Christy Unger, EDPA, for the win!

En Banc Court to Revisit Construction of Federal Conspiracy Statute

On the government’s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "whether the two clauses in 18 U.S.C. § 371 – the ‘offense’ clause and the ‘defraud’ clause – constitute separate offenses under the Double Jeopardy Clause of the United States Constitution." (More fully, the statute begins: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States....")

The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule, while the dissent tallied a 2-1 split to opposite effect. (The disagreement owed to conflicting views regarding the scope of certain rulings.)

The case involves the high-profile prosecution of members of the Rigas family on charges of diverting funds from Adelphia Communications Corporation for personal use. Until its collapse in 2002, Adelphia was the country’s sixth largest cable operator.