Tuesday, February 15, 2011

State Court Unreasonably Denied Brady Relief for Commonwealth’s Concealment of Evidence

In Lambert v. Beard, ___ F.3d ___, 2011 WL 353209 (3d Cir. Feb. 7, 2011), Judge Barry authored the panel opinion granting guilt-innocence phase relief in this 1984 Philadelphia capital case. The state’s star witness, Jackson, who initially was identified as one of the shooters in a barroom robbery-murder, identified petitioner as one of two robbers who entered the bar while Jackson waited in the getaway car. Jackson was extensively impeached at trial, but the prosecution argued that one aspect of his testimony—his identification of Lambert and a second party as the two men who committed the crime—had never changed. In postconviction and habeas petitions, Lambert presented evidence that the prosecutor’s claim was untrue. The Commonwealth had never disclosed a police activity sheet showing that Jackson at one time named a third party, not Lambert or the second party he identified at trial, as a “co-defendant” responsible for the shooting.

The Commonwealth conceded that the prosecution should have disclosed this information, and the Circuit panel held that the state courts had unreasonably found that the information was not material. The court acknowledged Harrington v. Richter’s holding that a state court merits ruling precludes federal habeas relief as long as “fairminded jurists could disagree” about the correctness of the ruling. Nevertheless, the panel held, it had found constitutional error and had a duty to correct it. Unlike all of the other impeachment evidence introduced at trial, the information in the police activity sheet would have opened “an entirely new line of impeachment” and thus was not cumulative. For that reason, the evidence was material and the state courts’ failure to grant relief for its nondisclosure was unreasonable.

The panel had issued an extraordinary order in November, stating that Lambert was clearly entitled to penalty phase relief because of Mills v. Maryland error, and should be taken off death row while the court drafted a full opinion that would address both the guilt-innocence and penalty phase issues. The Commonwealth’s petition for panel rehearing or rehearing en banc of that order was pending when the panel issued its February opinion. It vacated the November order and dismissed the Commonwealth’s petition on the ground that both were now moot.

Digest by Claudia Van Wyk, EDPA

Monday, February 14, 2011

Pro se notice of appeal liberally construed

In US v. Aswa Mills, No. 10-1542 (Feb. 9, 2011) (click here), the Circuit ruled that a notice of appeal, especially if pro se, should be construed liberally and should be deemed adequate as long as it is "reasonably clear" under all the circumstances which judgment the party seeks to appeal.

Mills filed pro se notice of appeal shortly after his murder conviction, but gave the case number and trial date for an earlier assault case -- a case for which he had already fully served his sentence and had withdrawn an appeal. The Court reasoned that under the circumstances it should have been clear to the government that Mills intended to appeal from his murder conviction, not the expired assault conviction. In addition, the Court noted that the government could not show it was in any way prejudiced. "[A]s long as the judgment the party intends to appeal is fairly discernible, a notice of appeal will be deemed sufficient even though it references the wrong case number, or the wrong judgment date."

Tuesday, February 08, 2011

Court Finds File Names are in Plain View; Looks at Consent, Inevitable Discovery and Independent Source Doctrines

In a lengthy c.p. opinion in U.S. v. Stabile, --- F.3d ----, 2011 WL 294036 (Feb. 1, 2011), the Third Circuit found the following:
(1) Consent to a warrantless search by cohabitant who had common authority over the property, including seizure of hard drives in common area which were not password protected, was valid; (2) the search of entire contents of the hard drives was reasonable and was not required to be done on-site;
(3) the subsequent revocation of cohabitant's consent by defendant was ineffective;
(4) a three-month delay between seizure of hard drives and obtaining search warrant was not unreasonable given that property was turned over by consent, defendant did not request return of the property, and government's rationale for the delay was reasonable;
(5) file names, which appeared when a folder on defendant’s hard drive was highlighted, indicating child pornography were in "plain view" during search for financial fraud evidence; and
(6) although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

In brief, during a counterfeit check investigation, secret service agents and members of a New Jersey sheriff’s office obtained consent from a cohabitant (“Deetz”) to search the house she shared with Stabile to search for evidence of financial crimes. Next to one of several computers and hard drives, the agents found check stock, check writing software, photocopies of checks, copies of previously-passed fraudulent checks, two printers, and checks with an alias. Agents also located DVD’s bearing titles believed to represent child pornography. When Stabile arrived, he refused to answer questions and attempted to revoke Deetz's consent by stating “I take it back,” but did not request return of his seized property until months later.

Although the agent obtained the six hard drives on July 24, 2006, he did not apply for a state search warrant until October 2006 because of another assigned detail. The warrant authorized search of the computer hard drives for evidence of financial crimes and child pornography. However, the DVDs at this point had already been determined to not contain child pornography, and the detective who would perform the forensic search, was told that there was a problem with the warrant as it related to child pornography and to search only for evidence of financial crimes. During the search, the detective noted numerous suspicious folders, including one “Kazvid,” which he understood to reference a file sharing program used often to share child pornography. He then highlighted the Kazvid folder, which allowed him to view a list of file names contained in the folder. The detective later testified that he highlighted the Kazvid folder not because it necessarily contained child pornography but because-as a suspicious folder-it could harbor evidence of any sort of crime, including a financial crime. He then observed a list of file names suggestive of child pornography and opened twelve different video files to “confirm” that they contained child pornography. He then notified the agent who obtained a federal search warrant based on only the names of the files in the Kazvid folder. This ultimately led to warrants to search the other drives and the child pornography indictment.

Stabile moved to suppress the evidence but the district court concluded that the search of Stabile's house was a valid consent search, that Stabile could not “revoke” Deetz's prior consent under Georgia v. Randolph, that the Government's delay in obtaining a state search warrant was not unreasonably long, and that, under the inevitable discovery doctrine, the evidence obtained from the search of the first hard drive need not be suppressed.

The Circuit affirmed, agreeing that Deetz ( who had common authority over the property) could consent to the warrantless search, including seizure of hard drives in common area which were not password protected. The court further rejected Stabile’s argument that the search of the hard drives should have been done on-site and found that his subsequent revocation of Deetz’s consent was ineffective. The Court also found the three-month delay between the seizure of the hard drives and obtaining of the search warrant reasonable, given that the property was turned over by consent, Stabile did not request return of the property, and government's rationale - that the agent was unavailable due to another assignment - for the delay was reasonable. Finally, the Court held that the file names in the Kizvid folder indicating child pornography were in "plain view" during search for financial fraud evidence because the officer [a] validly arrived at the place where file names were listed, [b] the incriminating character was immediately apparent, and [c] the officer had a lawful right to access the harddrive and, although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

Tuesday, February 01, 2011

Clear-Error Standard of Review Applies to a District Court’s Determination of Recklessness Under Franks

In United States v. Brown, No. 09-3643, the Third Circuit affirmed the District Court’s opinion granting the defendant’s motion to suppress a sample of his DNA pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Two men wearing masks from the movie “Scream” robbed a bank in Western Pennsylvania at gunpoint and fled to a nearby school district building, where they stole a school district van. Police found the van abandoned by the road only a half-mile from the school district building. A “Scream” mask with DNA material was later found in the van. Witnesses reported seeing a silver Volkswagen Jetta driving in the area that morning. The Jetta was described as having white license plates; one witness specifically stated that the Jetta had Maryland plates. A bank teller recognized one of the robbers’ voices as belonging to a regular customer. His acquaintance informed a State Trooper that he had a nephew (Mr. Brown) who had a silver Jetta and visited the area frequently. Further investigations revealed that Mr. Brown, a Maryland resident, may have been visiting the area on the date of the robbery, and left his uncle’s house for a few hours that morning in his silver Jetta.

The Trooper and an FBI Agent sought a warrant to obtain a DNA sample from Mr. Brown in the hopes it would match the DNA found on the “Scream” mask. The Agent never interviewed any of the witnesses. The Trooper filled him in via telephone and provided him with his written reports from the investigation. The Agent never read the witness statements and did not review the investigation reports in detail. The resulting affidavit contained an abbreviated version of the facts of the case. It also contained an averment that witnesses reported seeing the stolen school district van meet up with a silver Jetta with possible Maryland registration. The Agent failed to cross-check the affidavit’s contents with the investigation reports and never asked the Trooper to check the affidavit for accuracy. An Agent in Maryland took the affidavit to a United States Magistrate Judge, who issued the warrant. Mr. Brown’s DNA matched the DNA on the “Scream” mask.

The averment mentioned above turned out to be false. The Trooper testified at the Franks hearing that he never told the Agent that various witnesses saw the van meet up with the Jetta. The District Court granted Mr. Brown’s motion to suppress, finding that the Agent had acted with reckless disregard for the truth and that, in the absence of the “meet-up” between the vehicles, the affidavit lacked probable cause. On appeal, the government conceded falsehood and materiality under Franks and Mr. Brown conceded that the Agent’s actions were not knowing and intentional. The only issue on appeal was whether the Agent’s conduct evinced a reckless disregard for the truth.

The Third Circuit first held that the recklessness determination under Franks is subject to the clear-error standard of review. The Court explained that unlike First Amendment “actual malice” cases (from which Franks recklessness is derived) which are subject to de novo review, the exclusionary rule does not implicate a constitutional right. Rather, the recklessness inquiry goes to whether a violation of the Fourth Amendment requires exclusion of the evidence.

Applying the clear-error standard of review, the Third Circuit held that the District Court properly concluded that the recklessness standard had been met in this case. The Court reiterated that pursuant to Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000), “[a]n assertion is made with reckless disregard when ‘viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.’” In doing so, the Court held that “a court may properly infer that an affiant acted with reckless disregard for the truth where his affidavit contains an averment that was without sufficient basis at the time he drafted it.” The Court reasoned that where a law enforcement officer lacks sufficient grounding to support his averment, “it constitutes an ‘obvious reason[] for doubt’ under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth.”

The Agent basically admitted on the stand that he had no basis for his assertion that the two vehicles met up. Nor was there any basis for such an averment in the materials the Trooper provided to him. Therefore, the District Court did not clearly err in finding that the Agent’s conduct rose to the level of recklessness under Franks.

Christofer Bates, E.D. Pa.