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Showing posts from July, 2010

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…