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Tuesday, June 29, 2010

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 kilograms of cocaine.

Mr. Liburd was subsequently charged with possession with intent to distribute more than 500 grams of cocaine and attempted importation. Liburd moved to suppress the statement “there’s something in my bag” and the cocaine. Defense counsel did not move to suppress the cheese statement because, at that time, the statement had not been disclosed. At the suppression hearing, the district court asked the prosecutor if he intended to use Mr. Liburd’s statement at trial and the prosecutor stated, unequivocally, “No - that he wouldn’t rely on any statements” made by Mr. Liburd. As a result, the district court declined to rule on the admissibility of the statements.

On the eve of trial, the prosecutor disclosed Mr. Liburd’s cheese statement. And then, at trial, the prosecutor repeatedly admitted Mr. Liburd’s cheese statements. Defense counsel objected and ultimately requested a mistrial. The court declined the request for a mistrial but instead gave a curative instruction advising the jurors not to consider statements attributed to the defendant that were improperly introduced. Liburd was convicted and subsequently appealed.

On appeal, Liburd’s primary argument was that the prosecutor’s use of his cheese statement was misconduct, the misconduct violated his right to due process and the district court erred by refusing to grant a mistrial.

The Third Circuit Court of Appeals agreed - it determined that the prosecutor’s pre-trial promise not to rely on “any statement” made by Liburd required the prosecutor to do just that. The government responded by arguing that it did not know of the cheese statement until the eve of trial and argued it could not promise to not rely on a statement which it didn’t know about. The Court quickly rejected the government’s claim that a prosecutor could never make a promise regarding the use of undiscovered evidence. It also added that the claim was irrelevant - that once a prosecutor makes a promise to defense counsel or the court they are committed to keeping them.

The Court also determined that the prosecutor’s actions made a fair trial impossible in this case and therefore violated due process under the Fifth Amendment. Specifically, the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy - but for this promise, the strategy would have been different.

VACATED and REMANDED .

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,” Holmes argued that the definition of weapon should be an object whose primary purpose is for use in combat or an object that is inherently a weapon. Based on the invited error doctrine, the Court of Appeals rejected this argument, finding that this definition on appeal was much narrower than the definition proposed and adopted at trial. Specifically, trial counsel proposed a jury instruction which the district court adopted and advised the jury that the definition of a weapon is a “question of fact for you alone to decide.” Because the definition of “weapon” on appeal varied from the definition adopted at trial, the Court of Appeals declined to consider whether the definitions on appeal were correct. The Court then conducted a plenary review of the trial record in a light most favorable to the verdict winner and found the evidence to be sufficient - that blades are restricted items, that Holmes had no legitimate use for the blade the morning he possessed it, that he lied to the officers when asked if he had anything sharp, that he was hiding the blade, and that the prison guards testified they thought the item constituted a weapon. As a result the sufficiency claim was rejected.

As to the second claim, that the statute requires the government prove Holmes “knew” the blade was a weapon, the court of Appeals found that section 1791 had no scienter requirement but noted both parties agreed that a scienter requirement should be implied. The government argued that the statute requires only knowing possession of the object. In contrast, Holmes argued that he could only violate the statute if he knowingly possessed an object he knew was a weapon. The Court of Appeals rejected Holmes’ argument finding no support in the statute, that it lacked the support of congressional intent, and ignored the notion of the need for prison security - that prison security is threatened every time an inmate possesses a blade, regardless of whether or not the inmate “knows” it’s a weapon.

Finally, the Court of Appeals rejected Mr. Holmes third claim, that the district court erred when it refused to charge Holmes with misdemeanor possession of a “prohibited object” as a lesser included offense. The Court conducted a textual comparison between possession of a weapon in prison (§ 1791(d)(1)(B)) and possession of a prohibited object (§ 1791(d)(1)(F) - in doing so the Court found that § 1791(d)(1)(F) applies only to “any other object that threatens the order ... of a prison.” The Court determined that the use of “other” in this subsection meant that it “expressly exclude[d] items discussed in other subsections of § 1791(d)(1).” Because the elements of the misdemeanor offense were not a subset of the charged offense it could not be considered lesser included. AFFIRMED.

Friday, June 25, 2010

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 were affirmed.

The Third Circuit overturned both convictions. First, the Court vacated the conviction on the permit violation count because a verbal permit is invalid, and so there was nothing valid for Marcavage to violate. Second, as to the conviction on the interference with park functions count, the Court necessarily addressed Marcavage’s Free Speech defense. The Court rejected the Government’s arguments that the sidewalk near the Liberty Bell Center is a nonpublic forum, and that its restriction of Marcavage’s speech was content neutral. While the Court expressed some sympathy to the park rangers’ intent to protect captive tourists on line from being disturbed by the bullhorn and offended by graphic images, the Court noted that a fundamental Free Speech principle is that the Government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court found that while the Government’s interests in restricting speech – "ensuring traffic flow and/or public safety, and regulating noise"– were legitimate, they were not sufficiently compelling to satisfy strict scrutiny. The Court noted that the demonstrators caused no more disturbance than others near the Liberty Bell entrance, including drivers of horse-drawn carriages, and that the Government did not prove that anyone was prevented from entering the park. Therefore, the Government "impermissibly infringed Marcavage’s First Amendment right to free speech."

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 levels. Defendants with crack offenses whose Guidelines sentences involved career offender status, a Rule 11(c)(1)(C) plea, a mandatory minimum with USSG § 5K/§ 3553(e) relief, a sentencing range that remained unchanged after a two-level offense level reduction, or even an obvious Guidelines calculation error in the original sentencing are simply ineligible for § 3582(c)(2) relief.

Wednesday, June 02, 2010

"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 issue before the Third Circuit was whether the Gray case was to be considered "clearly established Federal law." The court held that it was not because the relevant state court decision was issued before Gray. One judge dissented opining that the relevant time frame should be the time that the conviction became final.

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 of the conspiracy" and "all in all, the indictment was sufficient to apprise Rawlins of the charges against him, to enable him to prepare a defense, and to avoid double jeopardy on the same charge."

Rawlins also claimed that the evidence was insufficient to prove that he knew that the luggage that he moved contained cocaine. The Third Circuit found, however, that Rawlins’ "irregular and plainly illegal act of tag switching evidenced his knowledge of cocaine smuggling."

Lastly, although the court of appeals found that although there were gaps in the chain of custody of the cocaine admitted at trial, the district court did not err in admitting that evidence. DEA chemists testified that the substance they received was cocaine, however, there was no testimony regarding the transfer of the substance to the DEA labs from the facilities where they were stored in other states. The Third Circuit held that deference is owed to a district court’s determinations regarding chain of custody and they will be reversed only on a showing of abuse of discretion. Additionally, the court relied on a "presumption of regularity in the handling of evidence by law enforcement" in rejecting Rawlins’ claim.