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Showing posts from March, 2010

"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…

Sentence vacated and remanded where the district court did not properly apply U.S.S.G. 2C1.1(b)(2) to determine the amount of a "benefit received"

In United States v. Lianidis, No. 09-1165 (D.NJ 03/19/10), the Court of Appeals vacated and remanded for re-sentencing where the district court did not properly apply section 2C1.1(b)(2) - a guideline provision which determines the amount of a “benefit received” for sentencing purposes.

Lianidis was the president of DMS, a computer engineering company founded by her husband. DMS was subsequently awarded government contracts to set up computer systems for the FAA. These contracts were awarded by a longtime friend of Lianidis, Darrell Woods (an employee of the FAA), who had received numerous cash payments (i.e bribes) from Lianidis which totaled over $150,000. While the contracts were secured with bribes, the work performed by Lianidis’ company was deemed “legitimate.” Thereafter, over a six year period, the FAA paid Lianidis’ company more than $6.7 million dollars.

Because of the bribes, Lianidis was indicted and pled guilty to three counts of bribery of a federal employee. Of importance…

No per se rule that a prior conviciton under 4B1.1 must be established by a "certified" record

In United States v. Howard, No. 08-4748 (E.D.PA 03/19/10), the Court of Appeals affirmed the district court’s reference to “uncertified documents” in its determination that Mr. Howard was a career offender under U.S.S.G. § 4B1.1.

Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school. At sentencing he objected to application of the career offender enhancement based on two prior drug convictions. As to one of the prior convictions, the district court relied on an incomplete certified conviction record and an uncertified Municipal Court document which indicated that Howard was convicted of felony drug conspiracy (no sentencing transcript was available). As a result, Howard’s base offense level of 13 (pursuant to § 2D1.1) was enhanced to 32 (pursuant to § 4B1.1). The district court sentenced Howard to 148 months and Howard appealed.

On appeal, Howard did not co…

Owner of Sporting Goods Store Must Forfeit Firearms Following Conviction for Being a Drug User in Possession of Firearms

United States v. Cheeseman, No. 09-1756, 2010 WL 699550 (3d Cir. Mar 2, 2010). The Third Circuit affirmed the district court’s forfeiture of some 600 firearms, potentially valued at $500,000, in connection with the defendant’s conviction for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3).

The defendant, Cheeseman, was the owner and proprietor of a sporting goods store that maintained an inventory of approximately 600 firearms. Cheeseman developed an addiction to crack cocaine and eventually moved from his home into the warehouse of the store. The district court found that Cheeseman and other addicts used crack on the premises. Additionally, Cheeseman denied being a drug user on his renewal application for his federal firearms dealer license. Cheeseman eventually pleaded guilty to possession of firearms and ammunition by an unlawful user or addict of a controlled substance. The district court ordered the forfeiture of the firearms, which Cheeseman clai…

Deficient Seach Warrant in Child Porn Case "Saved" by Good Faith Exception

United States v. Tracey, No. 08-3290, 2010 WL 681364 (3d Cir. Mar. 1, 2010). The Third Circuit reversed the district court’s suppression order in a child pornography case and held that although the search warrant was deficient because it did not clearly indicate that the items-to-be-seized, the good faith exception applied because the "officer could understandably believe that he had met the requirements of the Fourth Amendment."

The defendant, Tracey, was the subject of a state investigation into the internet distribution of a certain video containing child pornography. Tracey’s IP address was identified as participating in the distribution of the video via a peer-to-peer sharing program. Based on that information, the local police obtained a search warrant for Tracey’s residence from a state magistrate. The warrant identified the items to be searched and seized as follows: "Any items, images, or visual depictions representing the possible exploitation of children inclu…