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Showing posts from April, 2011

General right to counsel with no temporal reference informs suspect he has a right to an attorney during questioning

In United States v. Warren, No. 10-1598 (April 21, 2011), the Third Circuit affirmed denial of a motion to suppress statements and dismissed Warren’s claim that the government breached the plea agreement.

The Court analyzed whether the Miranda warnings given to Warren informed him of his right to have counsel present during questioning. The Third Circuit looked to the recent United States Supreme Court case Florida v. Powell, 130 S.Ct. 1195 (2010), for guidance. In Powell, the officer advised the suspect he had the right “to talk to a lawyer before answering any of our questions” and“to use any of these rights at any time you want to during this interview.” The Supreme Court reasoned that the combination of these statements reasonably conveyed the requirements of Miranda: the first statement advised when the right to an attorney became effective and the catch-all clarified that the right could be used at all times.

Here, the officer told Warren:

he had the right to remain silen…

Sentencing enhancement for sadistic, masochistic, or violent materials and two special conditions of supervised release upheld

In United States v. Maurer, No. 10-3049 (April 22, 2011) the Third Circuit affirmed the procedural reasonableness of a 60-month sentence for possession of child pornography and two special conditions of supervised release.

The Court rejected Maurer’s challenge to application of a four-level sentencing enhancement for material “that portrays sadistic or masochistic conduct or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4), and held that a sentencing court “need only find, by a preponderance of the evidence, that the image depicts sexual activity involving a prepubescent minor that would have caused pain to the minor.”

The Court found that the application of U.S.S.G. § 2G2.2(b)(4) did not constitute an abuse of discretion, nor was the enhancement unconstitutionally vague or overly broad. The ordinary meaning of the terms sadism and masochism provides courts with sufficient guidance. Although violence can be interpreted broadly, courts must construe its meaning narrowly because it f…

Sentence with Large Downward Variance Reversed on Procedural Unreasonableness

United States v. Negroni, 2011 WL 1125854 (Mar. 29, 2011). This case involved a massive fraud scheme in which the perpetrators submitted false claims in securities class action settlements. The defendants here – Hall & Negroni – submitted false claims totaling at least $1 million of the more than $40 million involved in the scheme. Both entered guilty pleas to mail fraud and wire fraud (Hall also pled guilty to tax evasion). The district court sentenced Hall to 15 months’ imprisonment and Negroni to 5 years’ probation. The government had sought much higher sentences.

For Hall, the government had sought a Guidelines enhancement of six levels because the scheme allegedly involved more than 250 victims. According to the Court, the district court rejected the enhancement with little explanation, commenting only that it was reluctant to accept the cooperating witness’s testimony without corroboration. Without the enhancement, the range was 46-57 months. The government sought a high-end …

SORNA - Failure to Register Conviction Upheld

In United States v. Pendleton, 2011 WL 1366382 (Apr. 12, 2011), the Circuit rejected defendant’s challenge to the sufficiency of the evidence supporting his conviction for failure to register as a sex offender. The Court’s decision is based on the fact that defendant had stated numerous times to government officials and others—including during the time period alleged in the indictment—that he actually lived at the charged address, not only that it was his mailing address, regardless of fact that witness who lived in the house testified defendant had never stayed there. The court declined to reach issue of whether a “mail drop” address would have been sufficient to charge under the statute. The court likewise rejected a Commerce Clause challenge, and a Due Process and fair notice challenge based on the fact that Delaware law did not require Pendleton to register.

Dismissal of RICO Indictment Reversed - Enterprise and Pattern of Activity Sufficiently Alleged

In United States v. Bergrin, 2011 WL 1366388 (Apr. 12, 2011), the Government appealed dismissal of RICO indictment which district court held did not adequately allege a racketeering “enterprise” or a “pattern of racketeering activity.” Following a thorough review of RICO definitions, the Circuit disagreed and held the indictment sufficient, finding that the district court principally erred in assessing the government’s ability to prove the allegations rather than assuming all alleged facts as true as required at the motion to dismiss stage.

Bergrin, defense attorney and former federal prosecutor, was charged with heading a criminal enterprise from 2003 through 2009 involving numerous offenses and co-defendants connected through an “association-in-fact” enterprise called the Bergrin Law Enterprise (BLE) which included four corporations —the law firm Pope, Bergrin & Verdesco, PA (PB & V); the Law Office of Paul W. Bergrin, PC; Premium Realty Investment Corp., Inc.; and Isabella&#…

Third Circuit invalidates robbery conviction based on Brady violations and ineffective assistance of counsel

In Breakiron v. Horn, (April 18, 2011), after the District Court had invalidated Breakiron's murder conviction and death sentence, the Third Circuit found three reasons to invalidate the robbery conviction: (1) the Brady violations that had caused the District Court to invalidate the murder conviction were also material to the robbery conviction; (2) trial counsel had been constitutionally ineffective in failing to request the lesser-included offense of theft; and (3) trial counsel had been constitutionally ineffective in failing to take corrective action when a venire panel member was exposed to evidence about Breakiron’s propensity to commit robberies and then served on the jury.

Mark Breakiron killed the bartender of a bar in Uniontown, Pennsylvania, and stole money from the bar. He was charged with first-degree murder and robbery. At trial, Breakiron argued, based on a voluntary intoxication/diminished capacity defense, that he did not have the specific intent to kill and so wa…

Court Emphasizes the Strict Standard of Relief under Writ of Error Coram Nobis.

Following his conviction for possession with intent to distribute 50 grams of cocaine base, Petitioner Gary Rhines continued to challenge his conviction and life sentence. After his conviction and sentence were affirmed by the Third Circuit, his writ of certiorari was denied by the Supreme Court, his motion under 28 U.S.C. §2255 was denied, and his application to file a second and successive §2255 motion were rejected, Rhine filed a writ of error coram nobis. In the writ he claimed that the arresting officers fabricated evidence and gave false testimony at trial. The basis for his claim was the 2007 indictment of the officers on charges that included tampering with records and perjury. Rhines additionally argued ineffective assistance of counsel for failure to discover the indictments against the officers. The district court dismissed the petition. In United States v. Rhines, 10-4077, the Third Circuit summarily affirmed the district court’s decision because the appeal did not p…