Attorney's failure to conduct adequate investigation of mitigating circumstances constituted ineffective assistance of counsel

In Blystone v. Horn, Nos. 05-9002 & 05-9003 (3d Cir. Dec. 22, 2011), the Third Circuit denied the government's cross-appeal and upheld the district court's conclusion that trial counsel in a capital case provided ineffective assistance of counsel by failing to adequately investigate mitigating circumstances for the defendant's punishment phase of his death penalty case even though the defendant had indicated that he did not wish to present a mitigation case to the jury. The Court held that the duty to conduct a reasonable investigation of mitigating evidence exists independently of the duty to present a mitigation case to the jury. In fact, the Court found, the duty to conduct a reasonable investigation is a "necessary predicate" to the decision of whether to present a mitigation case.

Here, the trial attorney conducted a minimal investigation involving only four of the defendant's family members. He solicited no expert mental health testimony and failed to examine extensive institutional records accumulated by the defendant because the defendant had chosen to forego the presentation of his own testimony and that of his family members. The Third Circuit concluded, however, that the fact the defendant had chosen to forego presentation of the mitigating evidence the lawyer had collected did not permit the inference that, had counsel competently investigated and developed expert mental health evidence and institutional records, the defendant would have also declined their presentation.

With regard to the defendant's direct appeal, the Third Circuit held that a timely Rule 59(e) motion to amend or alter a judgment based on newly discovered evidence is not a second or successive petition, whether or not it advances a claim, and therefore such a motion lies outside the reach of AEDPA's jurisdictional limitations on collateral attacks. Nevertheless, the Court found that the defendant's evidence was not newly discovered as it had been in the defendant's possession for many months before the district court denied habeas relief. Accordingly, the Third Circuit affirmed the district court's denial of the defendant's Rule 59(e) motion.

Fact that co-conspirator helped plan robbery that led to high speed chase insufficient to warrant U.S.S.G. §3C1.2 enhancement

Defendant Dwayne Cespedes was part of a three-member conspiracy which planned and executed an armed bank robbery. After removing more than $20,000 from the bank safe, Cespedes and co-conspirator Michael Grant entered the getaway car driven by co-conspirator Curtis Whitehurst. Whitehurst refused to submit to an attempted traffic stop and led police on a high speed chase through two counties. During the chase, Cespedes and Grant got out of the car and fled on foot, while Whitehurst continued his reckless driving, ignoring traffic laws, running stop signs, traveling in the wrong direction on certain roads and nearly striking several pedestrians in a crosswalk.

At Cespedes's sentencing, the district court applied a two-level enhancement for recklessly endangering others while fleeing from law enforcement officers pursuant to U.S.S.G. §3C1.2. The court rejected Cespedes's objection that the enhancement was improper because he never possessed control over the getaway vehicle and had exited the vehicle due to his co-defendant's erratic driving. On appeal, the Third Circuit, in United States v. Cespedes, No. 10-3432 (3d Cir. December 21, 2011), joined a number of other circuits in concluding that some form of direct or active participation by a defendant is required in order to apply the §3C1.2 enhancement. The Court noted that Application Note 5 to §3C1.2 provides that a defendant is only accountable for the reckless conduct of another under §3C1.2 if the defendant "aided or abetted, counseled, commanded, induced, procured, or willfully caused" the reckless conduct. Thus, where a defendant is merely a passenger in a vehicle fleeing from police, a district court must clearly indicate on the record how the defendant was responsible for the driver's conduct. The proof here, indicating only that the conspirators collectively planned a robbery that led to a high speed chase was inadequate to qualify Cespedes, a passenger in the getaway car, for a reckless endangerment during flight enhancement. Accordingly, the Court vacated Cespedes's sentence and remanded his case for resentencing without the enhancement.

Court Errs by Not Considering Postsentencing Rehabilitation on Remand after Pepper

In United States v. Salinas-Cortez, No. 11-1580 (3d Cir., November 8, 2011), the defendant challenged the sentencing court’s rejection of his request for a downward variance based upon postsentencing rehabilitation. In Salinas-Cortez, the defendant pled guilty to possession with intent to distribute more than five kilograms of cocaine, as well as conspiracy to do so. At his initial sentencing hearing, the defendant requested a downward adjustment based upon his minimal or minor role in the offense. The probation office claimed in the Presentence Report that the defendant had more than a minimal or minor role in the offense. The sentencing court, at this first proceeding, adopted the PSR without specifically addressing the defendant’s request. The Third Circuit vacated this initial decision, ruling that the sentencing court erred when it failed to address the defendant’s colorable argument for a minor role adjustment. On remand, the defendant also requested a reduction based upon his postsentencing rehabilitation. The sentencing court again rejected the defendant’s request, reasoning that it did not have the authority to consider any other issue on remand except the previously-requested minor role adjustment. Approximately one week after the sentencing court’s decision on remand, the U.S. Supreme Court decided United States v. Pepper, 131 S.Ct. 1229 (2011). The High Court in Pepper addressed the issue of whether, after the original sentence has been set aside on appeal, a sentencing court may consider evidence of postsentencing rehabilitation to support a downward variance. The Court answered in the affirmative, reasoning that information regarding the defendant’s history and characteristics historically has been highly relevant to the sentencing process. The Third Circuit interpreted Pepper to conclude that the defendant’s postsentencing rehabilitation is an essential part of his history, and therefore relevant to determine his likelihood of recidivism. The court in Salinas-Cortez concluded that, while the appellate court retains the authority limit the scope of a sentencing hearing on remand, such limitation must be explicitly instructed. The court ultimately ruled that its decision to remand the defendant’s original sentence did not dictate that the sentencing court could consider only the defendant’s previously-requested minor role adjustment. Consequently, the Third Circuit remanded the sentencing once again to afford the sentencing court the opportunity to address the defendant’s request for a downward variance based upon postsentencing rehabilitation.

*Congratulations to Supervisory Assistant Federal Defender David L. McColgin on this mighty win “on the papers”! He will surely be missed here in the Eastern District of PA, as he has decided to take his “mojo” up north to Vermont.

Court finds PA Terroristic Threats Prior to be Crime of Violence

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1972).

Application of the formal categorical approach showed the offense to be broader than the definition of COV under U.S.S.G. § 4B1.2(a)(1). However, § 2706 is phrased in the disjunctive, and the court applied the modified approach, outlining § 2706 to determine if there was a variation that could constitute a COV. (Since Mahone’s conviction, the PA legislature has rewritten the statute into three distinct subsections, because the Court found the statute has always been divisible into the three enumerated offenses, the analysis is the same).

The court next concluded that the subsection prohibiting a threat to commit a crime of violence with intent to terrorize another person, of which Mahone was convicted, may qualify. Next the Court re-employed the modified approach to determine whether the underlying state crime of violence could satisfy the requirements for a federal COV.

The charging document and colloquy in this case showed that the predicate PA "crime of violence" was "criminal homicide," a statutory provision states that prohibits "intentionally, knowingly, recklessly or negligently cause[ing] the death of another human being." Despite the fact that the PA crime of violence contained reckless and negligent mens reas which would not satisfy the federal COV standard, the Court concluded that the only variations of the criminal homicide statute that could serve as the predicate crime of violence for purposes of § 2706 is the act of intentionally or knowingly causing the death of another, because a person cannot threaten to terrorize another with a reckless act.

Continuing offense predating Guidelines harshening + continuing offense following Guidelines harshening + U.S.S.G. § 3D1.2 grouping + one book rule...

...equals no ex post facto prohibition on applying harsher Guidelines.

The Third Circuit decided United States v. Siddons, Case No. 10-1350, on October 3, 2011. Mr. Siddons raised four issues on appeal: (1) the district court’s denial of his request to withdraw his guilty plea; (2) the district court’s applying U.S.S.G. § 2B1.1(b)(16)(A) (2008) to increase his offense level by four; (3) the district court’s applying an obstruction of justice enhancement to increase his offense level by two; and (4) the district court’s varying above the Guidelines. The Third Circuit affirmed the district court on all four, and discussed only the second in significant detail. This post follows the Court's lead.

The text of § 2B1.1(b)(16)(A) (2008) was added to the Guidelines in 2003 (and currently resides at § 2B1.1(b)(17)(A)). It enhances a defendant’s offense level by four where the offense involved a violation of securities law and the defendant was, among other things, an investment advisor. Mr. Siddons had been an investment advisor when conduct relevant to his offense – but not the offense conduct itself –started, in 2002, but was no longer one by the time the Guideline went into effect in November, 2003. He argued that the district court erred in two ways when it applied the enhancement: First, by applying the Guideline when his offense conduct didn’t meet the prerequisites, and second, by applying the Guideline when doing so violated the ex post facto clause.

The Third Circuit rejected the first argument out of hand. It held that because his 2002 behavior as an investment advisor was relevant conduct to his offense pursuant to § 1B1.3, it was part of the calculation of his offense level under § 2B1.1. It then rejected the second after a more in-depth discussion of the combined effects of offense grouping under § 3D1.2, the “one book” rule, and the continuing nature of Mr. Siddons’s offenses:

We agree with those Courts of Appeals that have found no ex post facto violation when a court groups continuing, related conduct and applies the Guidelines Manual in effect during the latest-concluded conduct. This is so because the grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of his or her last offense in a series of continuous, related offenses . . . . Due to the grouping rules at § 3D1.2(d) and the one-book rule at § 1B1.11, Siddons was on constructive notice that the November 1, 2003 enhancement could apply to his entire scheme, should he continue the conduct after the date of enactment. As the Eighth Circuit aptly stated, “it was not the amendments to the Sentencing Guidelines that disadvantaged [Siddons], it was his election to continue his criminal activity [after the effective date of the enhancements]."

The Third Circuit's position thus is consistent with the views of the Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. So far, only the Ninth has taken a contrary view.

The Sentencing Enhancement Under 18 U.S.C. §3147 Authorizes Courts to Add Up to Ten Years to the Statutory Maximum.

Section 18 U.S.C. §3147(1) provides that if a person is convicted of an offense while under pretrial release, then in addition to the sentence for the underlying felony offense, the person should be sentenced to an additional term of up to 10 years. In United States v. Melvin Lewis, No. 10-4460 (3d Cir. October 18, 2011), the Third Circuit, in a case of first impression, held that §3147 has the effect of increasing the statutory maximum for an underlying offense by up to ten years, and that the sentences must be imposed consecutively.

Appellant Melvin Lewis was tried and convicted on two counts of a three count indictment. Specifically he was convicted of (1) being a felon in possession of ammunition, in violation of 18 U.S.C. §922(g)(1), and (2) committing an offense while on pretrial release, in violation of 18 U.S.C. § 3147(1). He was acquitted of a carjacking charge.

Mr. Lewis’s sentencing range was 140 to 175 months, and he was sentenced to 138 months, 96 for the ammunition offense and 42 months for violating §3147. He challenged the sentence arguing that the statutory maximum for §922(g)(1) was 120 months. The district court interpreted §3147 to authorize a combined sentence that exceeded the statutory maximum for the underlying offense. The Third Circuit agreed, finding that it was the “clear and unambiguous”intent of Congress to impose an extra sentence and that there was no exception to the statute that would prevent the extra time from exceeding the statutory maximum.

Nevertheless, the Third Circuit remanded the case because §3147 is a sentencing enhancement and not a separate crime. While the enhancement must be submitted to the jury, that finding is not a conviction. Therefore, it was plain error to convict Mr. Lewis for violating §3147, as if it were a separate offense.

Bribery Prosecution: Instruction that coercion may bear on intent not required, sentence remanded for failure to consider sentencing disparity

In U.S. v. Herman Friedman, No. 10-2235 (3d Cir., Sept. 28, 2011), the Third Circuit Court of Appeals affirmed Friedman’s conviction for bribery under 18 U.S.C. § 666(a)(2), but vacated and remanded for resentencing based on procedural unreasonableness.

Friedman owned a residential apartment building with 16 rented apartments, but after a routine inspection, a building inspector issued a Notice of Violation because only 15 units were legal. Although Friedman could apply for a variance, he faced a $500 per day penalty while his application was pending. So, Friedman arranged to pay a construction code official $5000 to overlook the violation. Unfortunately for Friedman, the code official, who had been caught taking bribes in an earlier investigation, was an FBI informant.

The Court rejected several defense arguments relating to the conviction; the most significant was an issue of first impression: whether the District Court abused its discretion in rejecting Friedman’s requested proposed jury instruction that coercion bears on the defendant’s state of mind.

Friedman’s proposed jury instruction would have charged the jury that coercion “may bear upon whether the defendant ever formed the intent required to commit the crime of bribery,” even when the defendant was not legally entitled to the act he was paying the official to perform. Friedman conceded that neither Supreme Court nor Third Circuit law (including the Third Circuit Model Jury Instructions) addressed this issue. But Friedman did cite for support the Second Circuit’s decision in United States v. Barash, 365 F.2d 395 (1966).

The Court found Barash inapposite because it found that coercion can bear on the intent required to commit bribery only in limited circumstances, where :“(1) the defendant is paying the official to perform an act to which he is legally entitled; and (2) the official threatens the defendant with ‘serious economic loss’ unless the bribe is paid.” Barash, 365 F.2d at 401-02. In contrast, Friedman’s proposed instruction did not limit the jury’s consideration of coercion to situations where the defendant was legally entitled to the act. The Court further noted that even if Friedman’s jury instruction were proper as a matter of law, the record provided no evidence of coercion.

In vacating and remanding Friedman’s 34-month sentence for resentencing, the Court noted , among other things, that the District Court had not considered explicitly the “unwarranted sentencing disparities” sentencing factor of 18 U.S.C. § 3553(a)(6). In his sentencing memorandum, Friedman noted the sentence of another person convicted of the exact same offense — involving the same $5000 bribe to the same code official — who received a sentence of three-years’ probation.

Summary by Ron Krauss

Money Laundering - Insufficient Knowledge of Intent to Conceal

United States v. Richardson, – F.3d –, 2011 WL 4430808 (3d Cir. Sept. 23, 2011). Asya Richardson was the fiancee of Alton Coles, the leader of a drug ring responsible for selling large amounts of cocaine and cocaine base in the Philadelphia area between 1998 and 2005. In the summer of 2005, the couple bought a home together. The government charged Richardson with money laundering, under 18 U.S.C. § 1956(a)(1)(B)(1), on the theory that she had participated in the purchase of the home knowing that drug money was being used and with intent to conceal that fact. The court found the evidence insufficient to support her conviction.

Although the government proved that Richardson lied about various aspects of the transaction in the mortgage materials, there was little evidence that she did so for any reason other than to hide the couple’s bad credit. There was also little evidence connecting her to Coles’s suspicious financial transactions related to the house (e.g., structuring deposits for the down payment). Thus, the government could not prove the element that Richardson knew the transaction was designed to conceal the nature, location, source, ownership or control of the proceeds of a specified unlawful activity. In considering Richardson’s various arguments, the Court held that “proceeds” of drug trafficking are gross receipts, not profits, weighing in on a question left open in Supreme Court’s decision in United States v. Santos, 553 U.S. 507 (2008).

Summary by Sarah Gannett

Honest Services Fraud and Bribery convictions upheld

In US v. Wayne R. Bryant and R. Michael Gallagher, Nos. 09-3243 & 09-3275 (click here) (Aug. 25, 2011), the Circuit affirmed the convictions of Bryant and Gallagher for honest services fraud and bribery in connection Gallagher, dean of a NJ medical school, giving Bryant, a state senator, a "low-show" job in exchange for Bryant funneling state money to the medical school. The Circuit rejected defense arguments that the government interfered with defense access to witnesses, that the evidence was insufficient, and that the jury instructions were defective.

Due Process/Interference with the Defense

The Court rejected a due process challenge to language that the government had placed on the face of every grand jury subpoena issued in the case, warning witnesses that “disclosure of the nature and existence of this subpoena could [and, in at least one case, “would”] obstruct and impede a criminal investigation . . . .” The defense contended that that language interfered with its access to witnesses by restricting the witnesses’ free choice whether to speak with the defense. Even though the warning language tracked the language of the obstruction of justice statute, and even though the U.S. Attorney implied a judicial imprimatur by placing the language on the face of the subpoenas, the Court characterized the language as a mere “request[] that witnesses practice discretion,” which “forthright citizens” would be inclined to heed. Thus it found no due process violation.

When defending its warning language in the district court, the U.S. Attorney’s Office for the District of New Jersey had cited an office policy of putting that language on every single grand jury subpoena. The Bryant Court criticized that blanket approach as “bad policy,” but preserved the prosecutors’ discretion to decide when to warn witnesses that they risk prosecution for obstruction if they speak with the defense.


Honest Services Fraud

The jury in Bryant was instructed solely on a bribery theory of honest services fraud, which survived the Supreme Court’s 2009 Skilling decision. Thus, the defense challenged the contours of the bribery theory, with respect to evidentiary insufficiency and instructional error.

In sum, the Court reaffirmed that honest services fraud bribery requires a quid pro quo exchange of a thing of value for an official act; that is, an intent to influence an official action (by the payor) and to be influenced (by the payee). It found the evidence plainly sufficient, and declined to adopt a more restrictive interpretation of bribery in light of Skilling. On the latter point, it rejected a defense challenge to the “stream of benefits” (or “retainer”) theory of bribery. The Court also endorsed, for the first time, an instruction that permits conviction in the presence of a “dual purpose” for the challenged payments. That is, a payor who makes a payment with the intent to influence official action is guilty even if he also intends to compensate the payee for legitimate work. The Court does not appear to have intended to use “dual purpose” to dilute the requirement of a quid pro quo, however. It referred to the secondary purpose as an “additional hope” of receiving legitimate work – in addition, that is, to the required corrupt intent to influence official action. Thus “dual purpose” will likely function in the future as another in a string of engraftments to the honest services fraud instruction that tell juries what is not a defense, rather than what the government must prove.
Section 666 Bribery

The Bryant Court declined to reach the most significant open issue in this circuit with respect to Section 666 bribery: does it require a quid pro quo exchange? Because the Court found that the jury instructions did require an exchange, it did not have to decide whether omitting an exchange was error.

The defense had contended that the jury instructions improperly substituted the mere temporal overlap of payment and official action for the required exchange, by using the phrase “while intending to influence [or to be influenced],” “while” being a temporal concept rather than a causal one. The Court held that the inclusion of the word “while” did not dilute the central concept of exchange that the intent language embodies.

Mail Fraud in Connection with Pension

The Court also addressed several arguments related to “traditional” mail fraud, in connection with counts alleging that Bryant had defrauded the New Jersey Board of Pensions and Benefits. Here the Court left open another significant issue: whether to join other circuits in rejecting the doctrine of mail fraud convergence. The doctrine requires proof that the defendant made a false statement to the actual victim. Finding that Bryant had in fact made a false statement directly the victim, the Court declined to decide whether convergence is required.

A practice note on this point: the government typically argues that the circuit already rejected mail fraud convergence in United States v. Olatunji, 872 F.2d 1161 (3d Cir. 1989), even though (as the defense contended in Bryant) any such ruling in Olatunji would have been dicta. Bryant makes clear that the circuit views the issue as open.

47 year prison terms affirmed for brothers convicted of Hobbs Act robbery of local drug dealer

Brothers Barron and Barry Walker were convicted after trial of various offenses including drug trafficking, firearm and robbery charges. Each was sentenced to a prison term of 47 1/2 years. On appeal, the brothers challenged their convictions and sentences on multiple grounds, including improper joinder, sufficiency of the evidence, improper expert testimony, and an alleged Brady violation. The Third Circuit, in United States v. Walker, 10-3090 (3d Cir. Sept. 13, 2011), quickly disposed of the severance claims, holding that joinder of all counts against both brothers was proper, despite the inclusion of two escape-related charges solely against Barry Walker, where the escape charges arose directly from the earlier drug, conspiracy and gun charges against both brothers. Nor, according to the Third Circuit, did the district court abuse its discretion in declining to grant Barron Walker's motion to sever his trial from his brother's trial where the issues were uncomplicated, the trial lasted only four days, included only two defendants and encompassed only three distinct episodes of criminal conduct.

With regard to the sufficiency of the evidence on the 18 U.S.C. § 924(c) charge (use of a firearm in furtherance of drug distribution), the Court found that the testimony of the confidential informant and a cooperating co-defendant, while not overwhelming, was sufficient to sustain the convictions. The witnesses testified that they observed Barron and Barry Walker arrive together in the same vehicle, that Barron had cocaine in his possession, and that Barron and Barry jointly made a cocaine sale while Barry wore a gun on his hip.

Next, the Court addressed the brothers' challenge to the government's expert on cocaine trafficking. In order to support the interstate commerce element of the Hobbs Act robbery charge, the government's expert, a 30 year law enforcement officer and narcotics investigator, testified that cocaine is manufactured outside of Pennsylvania and transported into the State. The Walkers' argued that the expert's testimony was unreliable because they could have possessed synthetic cocaine and the expert was unable to distinguish between synthetic and plant-based cocaine. The Third Circuit rejected this argument and agreed with the district court's conclusion that the expert's method for reaching his conclusions was reliable. It found that the expert's opinions were based on his personal experiences interacting with drug traffickers and law enforcement personnel over 30 years. Accordingly, the Court concluded that the expert's testimony was properly admitted.

With regard to the sufficiency of the evidence on the Hobbs Act robbery charge, the Third Circuit held "that by presenting evidence that (1) the Walkers attempted to rob a cocaine dealer of a de minimis amount of drugs and cash, and (2) the drug dealer's cocaine originated outside of Pennsylvania, the government presented sufficient evidence" to satisfy the interstate commerce element of the Hobbs Act. The Court acknowledged that the use of the Hobbs Act to prosecute "what could be considered a fairly garden-variety robbery gives us some pause," especially in light of the extremely harsh sentences that resulted. Nevertheless, the Court "trust[s] and expect[s]" that federal prosecutors will exercise their broad prosecutorial discretion "to make the most effective use of federal resources, to avoid supplanting the state criminal systems that quite ably address classic state-law crimes, and to seek just and appropriate criminal sentences in the course of their representation of the United States."

Finally, the Third Circuit addressed the defendants' claim that the government withheld exculpatory evidence material to their defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court found that the government' s failure to disclose information regarding an incident where their confidential informant was found to be in possession of 0.18 grams of crack cocaine was not material to the instant prosecution where the CI was not the only witness against the defendants and had already been thoroughly impeached by the defense team.

For the foregoing reasons, the Third Circuit affirmed the convictions and sentences of both Barron and Barry Walker.

General Criminal Venue Provision Applies When Part of Offense Committed in US & Illicit Sexual Conduct Outside the US Statute Constitutional

In United States v. Pendleton, No. 10-1818, September 7, 2011, the Court of Appeals considered: (1) whether the general criminal venue provision of 18 U.S.C. § 3238 applies when a defendant commits part of his offense inside the United States; and (2) whether 18 U.S.C. § 2423(c) and (f)(1) of the PROTECT Act, which criminalize noncommercial illicit sexual conduct outside the United States, are a valid exercise of Congress’s power under the Foreign Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3).

In 2005, Thomas Pendleton boarded a plane in New York City bound for Hamburg, Germany. Six months after his arrival there, he sexually assaulted a 15-year-old boy. German authorities arrested him, and a jury in Hamburg found him guilty of "engaging in sexual acts with a person incapable of resistance." After serving nineteen months in a German prison, Pendleton returned to the United States, where he was arrested and indicted in the District of Delaware on one count of engaging in noncommercial illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c) and (f)(1).

Although Pendleton’s offense began when he initiated foreign travel by boarding a plane bound for Germany in the Eastern District of New York, he "committed" the offense when he engaged in a illicit sex act in Germany. Because the criminal conduct was "essentially" foreign, the district court did not err in applying the general criminal venue provision, and venue was proper in Delaware.

As for the constitutionality of 18 U.S.C. § 2423(c), because the jurisdictional element in this section has an "express connection" to the channels of foreign commerce (the first prong of the Lopez three part framework to determine whether a statue has a constitutionally tenable nexus with foreign commerce), it is a valid exercise of Congress’s power under the Foreign Commerce Clause.

Use immunity for defense witness

In US v. Jamaal L. Mike, No. 10-1394 (Aug. 23, 2010) (click here), the 3d Circuit held that the district court properly denied a defense request for use immunity for a defense witness because the proffered testimony was not "clearly exculpatory" in view of the evidence undercutting both the proffered testimony and the defense theory of the case. (The Court also addressed two other issues unique to the Virgin Islands that are not reviewed here.)

Mike was charged with aiding and abetting the receipt of a gun acquired outside his state of residence. The government's evidence was that another person, Francis, purchased an AK-47 rifle in Florida and had it shipped to a false name in the Virgin Islands. Mike arranged with two others to retrieve it from the Post Office, having them supply the false name. They were arrested once they placed the package in the car. Francis was also arrested, and he pleaded guilty. But he told agents during plea negotiations that Mike and the others did not know what was in the package. Mike then asked the court to grant Francis use immunity, and the court denied the request. Mike was convicted after a trial.

On appeal the 3rd Circuit upheld the conviction, ruling that Francis's testimony would not have been "clearly exculpatory." Following US v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court explained that the right to Due Process includes the right to have "clearly exculpatory" evidence presented to the jury, and this must include the right to compel the testimony of a defense witness who asserts the Fifth Amendment right to remain silent. "[T]he only way to compel this evidence is to grant [use] immunity." For this reason, courts have the inherent judicial power to grant defense witnesses use immunity. Smith imposed five conditions that must be met: "[1] immunity must be properly sought in the district court; [2] the defense witness must be available to testify; [3] the proffered testimony must be clearly exculpatory; [4] the testimony must be essential; and [5] there must be no strong governmental interests which countervail against a grant of immunity." Id. at 972.

The principal issue here concerned condition #3 - whether the evidence was "clearly exculpatory." In US v. Thomas, 357 F.3d 357 (3d Cir. 2004), the Court explained that use immunity may be denied when the exculpatory nature of the testimony is "at best speculative... because a credibility determination would [be] required in order to determine which parties are more credible." Id. at 365-66. The Court here ruled that Francis's testimony would not have been clearly exculpatory because there was "evidence in the record undercutting the testimony Francis might have given and Mike's theory of the case." A juvenile who was with Mike testified that Mike gave him the false name on a slip of paper to use to pick up the package, and also that Mike wanted him to take the rap for the charge since a conviction for him would only mean a stay in a Boy's Home. In addition there were numerous phone calls between Francis and Mike on the days the AK-47 was purchased, the day it was sent, and the day it was picked up. Concluding that the jury here was confronted with "more than just a credibility determination," the Court held that Francis's testimony was not clearly exculpatory.

Chief Judge McKee dissented, stating, "I do not believe our precedent can be interpreted to preclude use immunity for Francis merely because his credibility would have been in issue had he testified. Such a broad prohibition of use immunity would be tantamount to eliminating that tool altogether, even when a witness's testimony was required to satisfy the requirements of due process, because credibility is always an issue whenever any witness testifies.... Here, the district court's ruling deprived Mike of the only witness who could testify about Mike's knowledge of the contents of the package he received."

Practice note: This decision leaves the definition of "clearly exculpatory" very murky. Chief Judge McKee is surely right in stating that since the jury must always make a credibility determination regarding a witness, that fact cannot preclude use immunity. Likewise, the fact that the government has other evidence contradicting the defense theory of the case also cannot be a basis for precluding use immunity. If it were, then use immunity would seem to be available only when the government's case was insufficient.

Self-representation; CCE: and 851 notice

In US v. Prince Isaac, No. 08-4755 (Aug. 23, 2011) (click here) the 3rd Circuit held:

(1) Defendant who was representing himself was not denied his 6th Amendment right of self-representation by judge's failure to include him in two side-bar conferences (at which stand-by counsel did participate) since defendant never objected and seemed to acquiesce in stand-by counsel's participation;

(2) Instruction on CCE was error, as conceded by the government, because several of the counts it listed as counts that could qualify as the predicate drug distribution felony did not qualify; but error, to which there was no objection, did not rise to plain error because jury found defendant guilty on all the drug distribution counts, thus easily satisfying this element;

(3) The requirement of written notice of a prior conviction under 21 USC 851 (to enhance the mandatory sentence) is jurisdictional, and the lack of actual notice prior to trial in this case constituted plain error.  "[T]he requirements set out in 851 are mandatory and a district court may not impose an enhanced sentence unless the defendant has been notified of the 'strikes' in compliance with these provisions."

Fumo Sentencing Errors

In US v. Fumo and Arnao, Nos. 09-3388 & 09-3389 (Aug. 23, 2011) (click on link to see decision), the Third Circuit upheld Fumo's conviction, but reversed the sentences for both Fumo and Arnao, finding a number of sentencing errors.  The holdings of broadest significance were that the district court judge failed to follow the 3-step sentencing process, in particular the 2nd step, in which he was required to identify the new Guidelines range after granting a departure, and that he failed to specify whether he was granting a departure or a variance.

Background:
Fumo and Arnao were charged with multiple counts of fraud, tax evasion and obstruction of justice, arising from "one of the larges political scandals in recent state history."  Fumo was a powerful PA state senator, and Arnao was a Senate employee.  Fumo required Senate employees to attend to his personal needs and political interests, including housekeeping and political fundraising.  He also arranged state contracts for friends and supporters.  In order to conceal his personal use of public funds, he provided false job descriptions and failed to disclose the nature of their work.  He also funneled state money to a non-profit he founded, Citizens Alliance, for which Arnao became the director.  Fumo and Arnao used Citizen Alliance funds for their personal benefit and for political purposes, in violation of its non-profit status.  Fumo also used his position on the board of Independence Seaport Museum to take pleasure cruises on its yachts and to obtain other personal benefits.  When reporters with the Philadelphia Inquirer began investigating, Fumo had his emails deleted, and later "wiped" his computers to prevent forensic analysis. Following a lengthy trial, Judge Buckwalter sentence Fumo to 55 months and Arnao to one year in prison.  Both sentences were substantially below the Guidelines ranges.

Trial issues (Fumo's cross-appeal):
1) Evidence the government presented regarding the state Ethics Act was relevant and properly admitted in light of Fumo's defense that there were no rules or laws that barred use of Senate resources for personal benefit.  The Ethics Act was relevant to show that Fumo was acting to deceive the Senate and that he had fraudulent intent. The judge made clear to the jury that Fumo was not on trial for violating the Ethics Act.
2) Juror's comments on Facebook and Twitter during deliberations did not require reversal because they did not prejudice Fumo, and the postings were vague and "virtually meaningless."  Judge Buckwalter, moreover, provided excellent intructions to the jury, which the Circuit "enthusiastically endorse[d]", focusing on the importance of not consulting websites or blogs or posting case information on social media. 
3) Defense counsel's allegation that another juror learned during trial about Fumo's past overturned conviction was based on a double-hearsay affidavit and did not establish "substantial prejudice."  Opinion sets out 6-factor test for substantial prejudice.

Sentencing Issues (Government's appeal):
1)  Judge miscalculated the amount of loss.  (a) The government made out a prima facie case of $1 million loss due to Fumo arranging for overpayment of Senate employees, and Fumo did not show this estimate was inaccurate.  (b) Judge abused his discretion in not ruling on whether loss should include $150,000 contract awarded to Arnao's husband for no services.  (c)  Judge should have included in loss amount the lost rental value and unnecessary improvements made on a property Fumo induced Citizens Alliance to purchase and furnish for his use.
2) Judge should have applied 2-level enhancement for acting on behalf of a charitable organization USSG 2B1.1(b)(8)(A), based on Fumo's misrepresentation that he was acting on behalf of Citizens Alliance, since Fumo acquired funds from PECO for Citzens Alliance, intending to divert them to his personal use.
3) Judge  should have applied enhancement for use of sophisticated means, USSG 2B1.1(b)(9)(C), since Fumo's use of sham entities to conceal flow of funds to Fumo qualified as sophisticated means.
4)  Judge erred by not calculating the final Guidelines range, in Step 2 of the sentencing process, after granting what the judge initially said was a departure for Fumo's good works.  (The 3-Step sentencing process is: (1) calculate the Guidelines range: (2) address any departure arguments and specify effect on Guidelines range of any departures granted; and (3) impose sentence after consideration of 3553(a) factors and consideration of any arguments for variances.)
5)  Judge erred by failing to make clear whether he had granted a departure or a variance, since he called it both at various times.
6)  Judge correctly included pre-judgement interest in restitution, since this is permitted under the VWPA and is compensatory in nature.
7)  Judge gave a sufficiently thorough explanation for the variance below the Guidelines in Arnao's case to show that he had fully considered the government's arguments and the statutory factors.

The Fair Sentencing Act Applies to All Defendants Sentenced on or After August 3, 2010, Regardless of When the Criminal Conduct Occurred

In United States v. Dixon, No. 10-4300, the Third Circuit held that the Fair Sentencing Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010) (“FSA”), signed into law on August 3, 2010, applies to all defendants sentenced after that date, regardless of when the criminal conduct occurred. The FSA reduced the crack/powder ratio to approximately 18:1, thus triggering a mandatory minimum sentence of 5 years for defendants convicted of possessing 28 grams of cocaine and 10years for possessing more than 280 grams. The Anti-Drug Abuse Act of 1986 (“1986 Act”) previously mandated 5 and 10 year mandatory minimum sentences for possession of more than 5 and 50 grams of crack, respectively. In passing the FSA, Congress sought to ameliorate the disparities between crack and powder cocaine offenders. Dixon was one such defendant whose criminal conduct predated the FSA, but whom was sentenced after its passage.

Section 8 of the FSA gave the United States Sentencing Commission emergency authority to promulgate new drug guidelines compliant with the Act. The Commission responded by promulgating new, FSA-compliant guidelines implementing the 18:1 ratio, which took effect on November 1, 2010. Section 10 of the Act also directed the Commission to study and submit a report to Congress outlining the impact of the FSA on federal sentencing law. Later, on June 30, 2011, the Commission decided to apply the new guidelines retroactively to defendants sentenced before the FSA was passed. But, as the Third Circuit explained in a footnote, this has no bearing on the applicability of statutory mandatory minimum sentences. It should also be noted that after oral argument, the government changed its position on the issue and submitted a Rule 28(j) letter indicating that it now supports application of the FSA to defendants in Dixon’s position.

The main issue was whether the General Saving Statute, 1 U.S.C. § 109, precludes application of the FSA to defendants sentenced after its passage. Under the Saving Statute, the mandatory minimum sentences in the 1986 Act remain in force unless the repealing Act expressly provides otherwise. The FSA does not mention retroactivity in its text. But the Supreme Court has explained that the Saving Statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908) (emphasis in Dixon). And in Dixon, the Third Circuit held that the necessary or fair implication of the FSA’s text is that Congress meant for it to apply to defendants sentenced after its passage, for three reasons.

First, Section 8's emergency directive to the Commission to “make such conforming amendments” to the guidelines that would “achieve consistency with other guideline provisions and applicable law” evinces Congress’s intent for the new mandatory minimum sentences to apply to defendants sentenced after the FSA’s passage. The “applicable law” is the FSA. Further, the Sentencing Reform Act of 1984 directs courts to sentence defendants under the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). So Congress knew the amended guidelines would be in effect when defendants in Dixon’s position were sentenced. Section 8's goal of achieving consistency between the guidelines and the statute shows its intent for the new mandatory minimums to apply. The Court reasoned that it would be nonsensical to apply emergency guidelines, while at the same time imposing mandatory minimums that diminish the impact of those new guidelines. Indeed, the old mandatory minimums would still control in many cases. Congress’s urgency in directing the Commission to promulgate emergency guidelines also demonstrates its intent for the new mandatory minimums to apply going forward. Finally, the Court reasoned, “[r]efusing to apply the FSA to defendants like Dixon would lead to a troubling result in which the Act would have little real effect for years, until the statute of limitations runs on pre-August 3, 2010 conduct.”

Second, Congress’s directive to the Commission in Section 10 of the FSA to study and report on the effects of the FSA further evinces its intent. “If the FSA’s provisions only apply to post-August 3, 2010 conduct, defendants sentenced in the coming years will be subject to the mandatory minimums in the 1986 Act. Consequently, during the time period in which the Sentencing Commission is supposed to produce a report on the effects of the FSA, the Act often will be inapplicable.” Such a report would be “incomplete” and “incomprehensible,” such that Congress must have meant for the new mandatory minimums to apply to defendants sentenced after the FSA’s passage.

Finally, the Third Circuit found the FSA’s title and stated purpose compelling. The Act was passed to restore fairness to federal sentencing. Congress simply could not have meant for district courts to continue imposing sentences that are unfair over the next five years until the statute of limitations runs on all crack offenses occurring before August 3, 2010. Accordingly, the FSA’s “plain import” directly conflicts with an earlier statute - the Saving Statute’s preservation of the old mandatory minimum sentences from the 1986 Act. As such, the FSA controls and all defendants sentenced after the FSA’s passage are subject to its reduced mandatory minimum sentences, regardless of when their criminal conduct was committed.

Conviction Vacated for Erroneous Instruction on Intent

In United States v. Waller, No. 10-1321 (Aug. 16, 2011), the Court holds that it was reversible Doyle error for a district court to instruct the jury that it could consider, among other things, "any statements made or omitted by the defendant” in deciding whether he had the intent to distribute a controlled substance.

Mr. Waller was found in possession of 52 stamp bags of heroin marked “Shoot, Shoot Them,” bundled into four groups of ten and one group of twelve. At trial, there was no dispute as to possession, but only as to whether the heroin was intended for personal use or distribution. There was circumstantial evidence from which the parties urged opposite inferences: for example, the defendant's possession of a gun but no cash. There was no direct evidence bearing on intent. The Court holds that the instruction permitting consideration of statements “omitted by the defendant” improperly invited the jury to infer intent from the defendant’s post-arrest, post-Miranda warnings silence, in violation of his right to due process and the rule announced in Doyle v. Ohio, 426 U.S. 610 (1976).

Under the circumstances, the government could not carry its “decidedly heavy burden” to show that the constitutional error was harmless. “It is rather easy to see how the erroneous instruction might, in fact, have contributed to the jury’s verdict: in the face of equivocal evidence of Waller’s intent, the jurors were invited by the District Court to consider the statements that he failed to make.”

The opinion includes a discussion distinguishing the “statements made or omitted” language from the Third Circuit’s Pattern Instruction. The Pattern Instruction directs the jury that it may consider “what the defendant said, what the defendant did and failed to do, how the defendant acted, and all other facts and circumstances….” The Court reads this model charge to permit “the jury to take into account only those statements actually made by the defendant, as well as the defendant’s failures to act,” but “does not invite the jury to consider statements omitted by the defendant, or otherwise comment on the defendant’s failure to speak.” (The emphases are the Court’s.)

Officer's Reliance on Warrant Insufficient to Support Good Faith Exception to Exclusionary Rule

In People of the Virgin Islands v. Tydel John, No. 09-4185 (Aug. 15, 2011), the Court holds 2-1 that the good faith exception to the exclusionary rule does not apply — and that evidence must therefore be suppressed — when an officer obtains and executes a warrant for child pornography by means of an affidavit representing that people who commit contact sex offenses against children customarily keep evidence of such crimes, including “photographs,” in their homes.

The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”

The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”

Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.

In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.

Evidence Insufficient to Sustain Conviction for Conspiracy to Transport Firearms

In United States v. Tyson, No. 09-3487 (3d Cir, Aug. 3, 2011) , the defendant was found guilty by jury of multiple firearms-related offenses, under both federal and Virgin Islands law. Specifically, the federal counts charged conspiracy to transport firearms from Tennessee to the Virgin Islands, and related gun trafficking offenses. However, the District Court granted the defendant's motion for judgement of acquittal as to the federal counts.

The Third Circuit concluded that, while the evidence was sufficient to support the defendant’s conviction for transporting and dealing firearms without a license, the evidence was insufficient to sustain his conviction for conspiracy to transport firearms. Explicitly rejecting the “rule of consistency” in multi-defendant conspiracy trials, the court concluded instead that the evidence simply failed to prove an illegal agreement existed between the defendant and the only co-conspirator identified by the government. The court reasoned that the government’s evidence of “unusual and suspicious activity” showed only that the defendant and the alleged co-conspirator engaged in “parallel conduct,” not the requisite concerted action to further a common goal.

The Third Circuit also upheld the defendant’s conviction for transferring a firearm with intent to commit a crime. The court noted that mens rea requirement of 18 U.S.C. § 924(b) may be satisfied by showing that either the defendant himself intended to commit a crime with the firearm, or he knew or had reasonable cause to believe a crime would be committed with the firearm. Citing United States v. McBane, 433 F3d. 344, 349 n.9 (3d Cir. 2005), the court interpreted the phrase “reasonable cause to believe” to require proof that, under the factual circumstances of the case, either a reasonable person would have believed or it would have been reasonable for the defendant himself to believe. The Third Circuit concluded that the defendant’s overall sale process sufficiently proved that he had reasonable cause to believe that a crime would be committed with the firearms he transferred from Tennessee to the Virgin Islands.

No Reasonable Expectation of Privacy in Common Area of Multi-Unit Dwelling

In United States v. Correa, No. 10-2199 (3d Cir., Aug. 2, 2011) , law enforcement officials executed arrest warrants for two associates an escaped inmate at a multi-unit dwelling. When the officers arrived at the building, the exterior front door was locked. As a result, one of the officers climbed through a partially opened window and unlocked the door for his colleagues. Once inside, the officers encountered the two individuals they initially sought as well as the defendant in the common stairwell leading to the basement. During the search incident to his arrest, the defendant alerted his arresting officer that he possessed a firearm. The defendant challenged his arrest in the common area of the multi-unit dwelling as the fruit of an unlawful entrance and search, and he sought the suppression of the firearm and his subsequent statement. The Third Circuit disagreed, extending its ruling in United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992), to rule that a resident of a multi-unit dwelling has no objectively reasonable expectation of privacy in the common areas of the dwelling, regardless of whether the exterior door is regularly locked or unlocked. The court reasoned that no objectively reasonable expectation of privacy can exist in the common area of multi-unit dwelling where all of the residents are permitted to access, as well as their guests. The court also determined that a locked exterior door does not serve to protect the privacy interests of the residents, but rather serves to provide them with security. The court ultimately ruled that, as the defendant had no objectively reasonable expectation of privacy in the common area of the multi-unit dwelling, he lacked standing to challenge the law enforcement officials' entrance and search. Therefore, no Fourth Amendment violation occurred.

Language Barrier May Qualify as an Extraordinary Circumstance Warranting Equitable Tolling of AEDPA’s One Year Statute of Limitations.

In Pabon v. Superintendent S.C.I. Mahanoy, No. 08-1536, Petitioner Angel Pabon challenged the denial of his habeas petition, as out of time. Following the denial of his motions for post conviction relief at the state level, Pabon filed a pro se habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §2254. The habeas petition was based on a violation of the Confrontation Clause. Specifically, the state trial court admitted into evidence the confession of one of the codefendants, who did not testify at trial. The District Court dismissed Pabon’s petition because it was not timely under AEDPA’s one year statute of limitations, as set forth in 28 U.S.C. §2244. Conceding that his petition was out of time, Pabon argued that his petition should still be considered under the doctrine of equitable tolling, an argument the District Court rejected. The Third Circuit granted a certificate of appealablity (COA) to determine the question of timeliness and equitable tolling.

In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.

The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.

Court Adopts Factors to Determine Exceptions to Waiver of Issues Not Raised in Opening Brief, Remands for More Narrowly Tailored Internet Restrictions

In United States v. Albertson, No. 09-1049, the Third Circuit considered yet again whether a defendant’s supervised release term and special conditions were reasonable under 18 U.S.C. § 3553(a) as incorporated by 18 U.S.C. § 3583(d)(1). Albertson pled to one count of receiving child pornography and received a sentence of 60 months in prison (the mandatory minimum term of imprisonment), along with a 20 year supervised release tail with 8 special conditions. Albertson challenged the length of his supervised release term as well as special conditions that: (1) banned him from associating with children under the age of 18 (other than his children) without his probation officer’s prior approval, (2) banned him from using a computer with internet access without prior written approval of the probation department, and (3) required him to submit to an initial inspection and subsequent inspections of his computer and to allow probation to install monitoring or filtering software onto his computer.

The Court first addressed waiver, because Albertson only challenged the length of his supervised release term in his initial brief. His reason for only raising the challenges to the special conditions in his reply brief was that the Third Circuit issued its opinion in United States v. Miller, 594 F.3d 172 (3d Cir. 2010) a day after his initial brief was filed. The Court noted that normally issues are waived if not raised in the appellant’s opening brief, but there are exceptions in extraordinary circumstances. Relying on the First Circuit’s opinion in In re Kane, 254 F.3d 325, 331 (1st Cir. 2001), the court adopted factors to determine what constitutes extraordinary circumstances. The factors are: (1) whether there is some excuse for the failure to raise the issue in the opening brief, (2) how far the opposing party would be prejudiced, and (3) whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system. Under these factors, the Third Circuit found extraordinary circumstances existed even though Albertson’s reason for failing to initially raise the issue was not compelling in light of the body of case law on computer-related conditions of supervised release that existed before Miller. The most compelling factor was that ignoring overbroad internet restrictions contrary to clear Third Circuit precedent would undermine confidence in the judicial system.

The Court in Miller enunciated 3 factors relevant to assessing whether a supervised release condition is overbroad: (1) the scope of the condition with respect to its substantive breadth; (2) the duration of the condition; and (3) the severity of the defendant’s conduct - particularly whether the defendant used a computer to solicit or personally endanger children. The Albertson court added a fourth factor: the interplay between the prison time served and the term of supervised release, in light of the fact that often times district courts may find that a longer term of supervised release should follow a shorter prison term. The Court also found it relevant to consider the proportion of a supervised release restriction to the total period of restriction, including prison time.

Under these factors, the blanket ban on internet use without probation’s approval was “sweepingly broad” because Albertson never used the internet “as an instrument of harm” and because modern life is extremely difficult without access to the internet. Second, the Court found the duration of the conditions - 20 years - should be considered in light of his age. At 42 years old, Albertson’s 20-year restrictions were basically of the same length as the defendant’s lifetime restrictions in Miller (assuming an 80-year life expectancy - Miller was 60 years old when sentenced). Third, Albertson did not use the internet to actively contact or solicit contact with children. Albertson’s short incarceration period did suggest, however, that a lengthy supervised release tail was appropriate. As such, the Court upheld the 20 year supervised release term, but found the internet restriction condition overbroad and remanded to the district court to consider a more narrowly tailored internet use restriction. The Court also explained that the computer monitoring condition would be perfectly acceptable if paired with a more narrowly tailored and reasonable internet use restriction, so it remanded for reconsideration of that condition in connection with the internet use condition. Further, in light of the fact that Albertson had been charged with molesting his stepdaughter at the time of his federal sentencing (and later convicted), the Court upheld the association with minors condition.

De Novo Sentencing Applies After Court Vacates Part of Interdependent Sentence, Remand for Full Consideration of Post-Sentencing Rehabilitation

In United States v. Diaz, No. 10-3337, the Third Circuit considered whether the district court correctly resentenced the defendant on remand after one count of an interdependent sentence was vacated. Diaz was convicted of one count of possession with intent to distribute heroin and two counts of possessing a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). The Third Circuit reversed and remanded for resentencing, holding that Mr. Diaz’s double jeopardy rights were violated because a second § 924(c) count must be based on a separate predicate drug offense. On remand, the defense argued that the district court should simply reduce the sentence by 120 months - the sentence originally associated with the vacated § 924(c) count. The district court treated its original sentence as interdependent, and held that resentencing de novo was appropriate so long as the Third Circuit did not direct otherwise. The district court considered the fact that the defendant was facing one less conviction. The defense also presented evidence of Diaz’s post-sentencing rehabilitation. The district court recognized Diaz’s post sentence rehabilitation, but explained that it was not a major factor in its new sentence. Accordingly, the district court reduced Diaz’s sentence by 80 months.

On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.

The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.

Enhancement for Counterfeit Obligations Based on Face Value, Not Intended Loss

In United States v. Wright, No. 10-2970 (3d. Cir. June 1, 2011), the Third Circuit vacated a sentence of twenty months imprisonment and remanded for resentencing. The court recognized the facts of this case could never have been envisioned by the Sentencing Commission. Wright and a man he falsely identified as his brother attempted to sell $120,000 worth of fake U.S. currency for $60,000 to a small business owner. Wright and his "brother" told the business owner that their father was a politician and banker in Sierra Leone, who had recently been assassinated, and that he and his brother fled to the United States as refugees. They claimed to have brought with them millions of dollars in U.S. currency, that had been provided to Sierra Leone by the U.S. as aid. They claimed that the currency had been dyed black in order to prevent the use of the currency by rebels who might have intercepted it. In a meeting with the business owner, Wright and his "brother" demonstrated the process of cleaning the black papers with special solvent. After the two black papers they used for demonstration were "sloshed" in the solvent, they were revealed to be two genuine $100 bills. Distrustful of the arrangement, the small business owner notified the U.S. Secret Service. They arranged a second meeting, where the business owner told Wright that he was bringing another prospective buyer. At this time, they agreed to sell $200,000 worth of currency for $100,000. During this meeting, they again performed the demonstration, revealing two genuine $100 bills.

Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.

Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.

The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.

Mere Presence of Firearm Not Sufficient to Warrant Four-level Enhancement under U.S.S.G § 2K2.1(b)(6)

In United States v. West, No. 09-2860 (3d Cir., April 29, 2011), the defendant challenged the four-level enhancement applied to his sentence for possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(6). He also challenged the sentencing court’s finding that a recent subsequent arrest for gun and drug possession was relevant conduct to the stolen firearm offense.

In West, the defendant was arrested on two separate occasions in 2007. During a traffic stop on February 28, 2007, police found cash, a small undetermined amount of marijuana and a gun in the glove compartment. Another firearm was discovered later in a backpack in the trunk of the car. The defendant admitted possession of the cash and marijuana but denied possession of the firearms. Police later determined that the gun found in the trunk had been stolen. On July 27, 2007, a firearm was discovered in the rented apartment of the defendant’s girlfriend during a routine fire-code inspection. An undetermined amount of cash and marijuana also were discovered during a search of the apartment. Police later determined that this gun also had been stolen. The defendant subsequently pled guilty to possession of the gun discovered in the trunk of his car in February, but refused to plead guilty to possessing any other firearms.

The District Court ruled that the defendant possessed, either actually or constructively, both the firearm discovered on the trunk of the car in February and the gun found in the apartment in July. However, the court ruled that the defendant did not possess the gun found in the glove compartment of his car. The court concluded that the close proximity of the firearms emboldened the defendant’s possession of the marijuana on both occasions. The court determined that the defendant’s possession of marijuana was a felony offense and that his possession of the firearms facilitated his commission of the felony drug offense. Consequently, the court applied the four-level enhancement provided under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. The court also determined that the July gun possession was relevant conduct of the February gun possession, pursuant to U.S.S.G. § 1B1.3.

The Third Circuit disagreed. Initially, the Third Circuit recognized that the relevant conduct standard requires a showing that the offenses at issue are sufficiently similar, regular and temporally proximate. The court determined that while the February and July incidents were close temporally, the “underdeveloped factual record” precluded it from concluding that the offenses were sufficiently similar and regular. Specifically, the court found that the presence of cash and a small undetermined amount of marijuana near the firearms in both incidents, alone, merely showed that the offenses were similar but isolated and unrelated events. The District Court’s finding otherwise was clearly erroneous.

The Third Circuit also determined that the phrase “in connection with,” as used in § 2K2.1(b)(6), means that the firearm facilitates or has the potential to facilitate the felony offense. In recognizing the distinction between drug trafficking and simple drug possession offenses, the court interpreted Application Note 14 of § 2K2.1 to provide that, while the firearm necessarily facilitates a drug trafficking offense, the sentencing court specifically must find that the firearm facilitated a simple drug possession offense. The Third Circuit concluded that, where the predicate offense is simple drug possession, the mere proximity of the guns to the drugs is insufficient to establish the facilitation requirement under § 2K2.1(b)(6). The Third Circuit ultimately ruled that the sparsity of facts in the record did not support the sentencing court’s conclusion that the firearm found in the trunk of the car facilitated the defendant’s possession of the marijuana found in the glove compartment. The court reasoned that simultaneous possession of the gun and drugs is not enough. The Third Circuit remanded the case to allow the District Court to make additional findings regarding the facilitation requirement under § 2K2.1(b)(6).

Court upholds Iranian trade sanctions regime in face of broad constitutional challenges

In United States v. Ali Amirnazmi, No. 10-1198 (May 13, 2011), the Court affirms on all counts a chemical engineer's conviction for marketing software to Iranian industrial enterprises. The 72-page slip opinion offers an intensive review of the historical development of subjects as varied as the unconstitutional delegation doctrine and the embargo on Iran. Responding to a series of nuanced and articulate defense challenges, the opinion addresses the authority of Congress to vest the Executive with power to define criminal sanctions; the status of “dynamic” software under laws protecting the free flow of ideas to and from embargoed nations; the application of the vagueness doctrine; the law of conspiracy; and the validity of subpoenas under Criminal Procedure Rule 17(c).

Judge Scirica, joined by Judges Barry and Vanaskie, confronts an intricate web of statutes and Treasury Department regulations defining the Iran embargo inaugurated by President Clinton’s executive order in 1995. The Court holds the governing congressional enactments to “meaningfully constrain” executive discretion to define criminal conduct incident to the embargo, and thus not to represent an unconstitutional delegation of Article I legislative authority.

The Court also rejects a challenge based on congressional inaction post-dating the governing enactment. Under the law, Congress “shall meet” every six months “to consider a vote on a joint resolution” that would end the embargo. Congress has not followed that directive. The political question doctrine and executive authority in the area of foreign relations form a backdrop to the Court’s analysis. But in a notable aside that would appear to refer tacitly to the judiciary’s role, the Court states that “such considerations do not preclude enforcing compliance with statutory dictates.” Not here, however. Reviewing distinct legislative developments, the Court observes that “far from being unaware or indifferent, in the case of Iran, Congress has clearly and consistently demonstrated its support of the Executive’s agenda.” Accordingly, inaction in derogation of the statutory mandate has not stripped the delegation of its validity.

The Court also holds that the “ChemPlan” software at issue—a “dynamic” tool capable of projecting demand under variables selected by the end user, and thus facilitating Iran’s industrial planning—is not exempt from the embargo under an exception by which Congress “sought to ensure the robust exchange of informational materials.” Notwithstanding some back-and-forth between Congress and the Treasury Department in this area, the Court holds that the Treasury Department’s establishment of a carve-out for material that is “not fully created and in existence at the date of the transactions” is a permissible construction of the informational-materials exemption.

Mr. Amirnazmi also attacked the “fully created and in existence” standard as unconstitutionally vague. In rejecting this challenge, the Court draws essential support from the exposition in Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982), which directs that “economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action and may clarify the meaning of the regulation by their own inquiry, or by resort to an administrative process.” In part by looking to the circumstances of inquiry that Mr. Amirnazmi in fact made of the Treasury Department, the Court rejects his vagueness challenge. A footnote suggests that other defendants might be able to prevail on vagueness challenges under other circumstances.

As to the law of conspiracy, the Court rejects a challenge predicated on the argument that conduct spanning from 1996 to 2008 consisted, if anything, in two conspiracies rather than one, with the earlier conspiracy falling outside the statute of limitations. The Court finds there to have been a single conspiracy despite evidence that representatives of the Iranian enterprises lost interest for a time in Mr. Amirnazmi’s software. The “temporary lull in sales” did not sever the requisite agreement among conspirators in light of Mr. Amirnazmi’s “continuous efforts to preserve and strengthen [his company’s] Iranian ties” and the “unaltered nature of the parties’ interests” before and after the limitations period.

Finally, the court rejects a challenge under Fed. R. Crim. P. 17(c) asserting that the government impermissibly used subpoenas as discovery devices. The contention was that the government, while formally listing scheduled trial dates for production of subpoenaed telephone recordings from the Federal Detention Center, “implicitly understood that the FDC would expedite its production of the requested evidence” so as to disclose the materials sooner. This could be expected because “the FDC habitually responds to subpoenas received from the United States Attorney’s Office” with “alacrity.” The Court holds the subpoenas valid in light of their compliance with the “facial requirements of trial subpoenas,” as “the record before us does not demonstrate … an impermissible discovery motive.”