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Monday, March 28, 2011

Writ of Mandamus issues when District Court refuses to instruct jury on all elements of charged offense.

While reiterating its general rule that mandamus is “a drastic remedy that is seldom issued and its use is discouraged,” the Third Circuit nevertheless found “the kind of extraordinary situation in which we are empowered to issue the writ of mandamus,” in United States v. Higden, No. 10-3882 (March 17, 2011).

Defendant was tried for violating 18 U.S.C. § 922 (g)(1), which has three elements: (1) that defendant possessed a firearm; 2) that defendant was a convicted felon; and 3) that the firearm had traveled in interstate commerce. Before trial, Defendant and the Government stipulated that Defendant had satisfied the last two of those three elements, and that the jury should be informed of that stipulation. The District Court refused to permit the Government to mention the stipulation during voir dire, and instructed the jury without mentioning either the convicted felony or interstate commerce elements of the charge. Similarly, at trial, despite several requests by the AUSA, the District Court refused to permit the jury to hear about the stipulation or provide a more complete instruction on the elements of the charged offense. At the end of the trial, the District Court refused again to instruct the jury on all elements of the charge, charging only that “”your job is to decide whether the evidence which was actually presented does or does not establish beyond a reasonable doubt that the defendant, Mr. Higden, had possession of this firearm, that he knew he had possession and knew it was a firearm.”

After a day of deliberation, the jury reported a deadlock. The District Court proposed that the parties accept a majority vote for a verdict. Both counsel rejected the proposal, noting the requirement of a unanimous verdict in criminal cases.

The District Court then scheduled a second trial. Before the second trial, the Government filed a motion in limine to ensure that the jury was properly instructed on all three elements of the charge, and that the Government could present evidence (including the stipulation) on all three elements. The District Court denied the motion. The Government appealed and petitioned for mandamus.

As a threshold matter, the Court of Appeals addressed its jurisdiction. It ruled, first, that it had jurisdiction to hear the Government’s interlocutory appeal concerning the stipulation, because it was a pretrial evidentiary ruling to exclude evidence, under 18 U.S.C. § 3731, but that it did not have jurisdiction to hear an appeal on the refusal to charge the elements of the offense. The Court ruled, however, that it did have jurisdiction to consider the refusal to charge for purposes of mandamus.

On the merits of the appeal, the Third Circuit ruled that a district court may not entirely exclude a stipulated fact from the jury’s consideration when that fact constitutes an element of an offense. So, while a defendant’s stipulation can prevent the jury from hearing the underlying facts of the prior felony, it cannot prevent the jury from hearing the fact of the prior felony conviction. The Court noted that “an appropriately forceful limiting instruction” can cure any prejudice arising from evidence of the prior felony.

As for mandamus, the Court ruled that the Government had met both requirements for issuing a writ: 1) that the Government had no other adequate means for relief; and 2) that the Government’s right to the writ was clear and indisputable. The Court stated that “it is crystal clear” that the Government had no other avenue to compel the District Court to instruct the jury on all three elements of the charge. And the Court stated further that the District Court’s insistence on giving an improper jury charge was “clear and indisputable error”. Therefore, finding this “an extraordinary situation”, the Court granted the petition for mandamus, and remanded, directing the Chief Judge of the Eastern District of Pennsylvania to reassign the case to another district court judge.

Finally, on an editorial note, it is clear from Chief Judge McKee’s opinion that the Court granted the petition for mandamus because of the extreme circumstances, characterizing the situation “as unfortunate as it is regrettable.” Although stating that the Court was “simply at a loss to explain the [district] court's behavior," the Court did observe that “Judge Fullam is a very experienced and hard working jurist and he has devoted decades of service to the federal bench.” Six days after this decision was issued, Judge Fullam stated his intention to resign.

Borrower of rental car generally lacks expectation of privacy in that rental car.

In United States v. Kennedy, No. 09-1980 (March 16, 2011), the Third Circuit affirmed the denial of a suppression motion by a driver of a rental car that was not rented in his name. Police had arrested defendant Kennedy on an outstanding warrant, and searching a nearby rental car that he had borrowed from his girlfriend – the authorized driver – police found guns and drugs inside the car. Defendant moved to suppress the evidence found in the car, asserting a legitimate expectation of privacy in its contents. The District Court denied the motion. After a two-day trial, the jury found Kennedy guilty on three counts of drug and firearms charges. The District Court sentenced him to 300 months in prison.

On appeal, the Third Circuit affirmed. Surveying decisions in the Circuits, the Court observed that while there may be agreement that an authorized driver on the rental agreement will generally have an expectation of privacy “due to his possessory and property interest in the vehicle,” the Circuits are split on whether that same expectation of privacy should be accorded to a driver who has been lent the car by the renter, but is not listed on the rental agreement as an authorized driver. The Court noted that the Eighth and Ninth Circuits have held that an unauthorized driver has an expectation of privacy when he has the renter’s permission, but that the majority of Circuits – Fourth, Fifth, Sixth, Seventh, and Tenth Circuits – hold to the contrary. The Third Circuit joined the majority in holding that “the lack of a cognizable property interest in the rental vehicle . . . makes it generally unreasonable for an unauthorized driver to expect privacy in the vehicle.”

The Court did note, however, that an extraordinary circumstance – not present here – might give rise to an exception to that general rule; as, for example, where the unauthorized driver was not only the authorized driver's spouse, but he had also contacted the rental car company to reserve the car in his name with his credit card, which was billed for the rental.

Monday, March 07, 2011

Court rejects Second Amendment challenges to 18 U.S.C. § 922(g)(1)

Defendant James Barton entered a conditional guilty plea to two counts of being a felon-in-possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), reserving the right to argue on appeal that those convictions violated his Second Amendment right to keep and bear arms. The Third Circuit rejected Barton's challenges, holding that § 922(g)(1) was constitutional both on its face and as applied to Barton. See United States v. Barton, No. 09-2211 (3d Cir. March 4, 2011).

With respect to Barton's facial challenge, the Third Circuit concluded that it was bound by the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), to reject that challenge. The Heller Court found that the individual right to keep and bear arms, while fundamental, was not unlimited, id. at 626, and certain "longstanding prohibitions on the possession of firearms" are "presumptively lawful." id. at 626-27 n. 26. This includes a prohibition on the possession of firearms by felons. Id. at 626-27. The Third Circuit rejected Barton's argument that Heller's list of "presumptively lawful" regulations was dicta and, instead, found that discussion outcome-determinative. Accordingly, the Court held that it was bound by Heller to deny Barton's facial constitutional challenge to § 922(g)(1).

With respect to Barton's as-applied challenge, the Third Circuit "look[ed] to the historical pedigree of 18 U.S.C. § 922(g) to determine whether the traditional justifications underlying the statute support a finding of permanent disability in this case." Op. at 9. The Court found that "the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses." Op. at 10 (emphasis added). Thus, a felon convicted of a minor, non-violent crime or a felon whose crime of conviction was decades old who was able to show that he was no more dangerous than a typical, law-abiding citizen and posed no continuing threat to society could possibly raise a successful as-applied challenge to § 922(g)(1). Barton's criminal history, which included convictions for drug-trafficking and receiving stolen weapons in the recent past, precluded him from raising a successful as-applied challenge. Accordingly, the Third Circuit found no error in the district court's dismissal of this challenge.

Finally, Barton maintained that even if his prior convictions precluded him from possessing a firearm, he should retain the right to keep a firearm in his home for self-defense. The Third Circuit noted that this argument was foreclosed by its decision in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which holds that "a felony conviction disqualifies an individual from asserting" his fundamental right to "defense of hearth and home." Id. at 92.

Thursday, March 03, 2011

Search warrant affidavit sufficient to establish probable cause in child pornography case despite deficiencies

In United States v. Miknevich, 09-3059 (March 1, 2011), the Third Circuit was asked to determine whether an affidavit prepared by a law enforcement officer in child pornography case supported the district court's finding of probable cause. Defendant was charged with possession of child pornography after police executed a search warrant at his home and seized his computer. He entered a conditional guilty plea, reserving the right to challenge the district court's probable cause determination on appeal. In challenging the sufficiency of the affidavit, the defendant noted the following deficiencies: (1) the affidavit did not indicate that any investigating officer actually downloaded the suspect video file, (2) the affidavit did not indicate that anyone, including any other officers or the magistrate judge, ever actually viewed the suspect file, and (3) the affidavit contained no description of the suspected images or actions in the file.

While the Third Circuit agreed that parts of the affidavit were "imprecise" and "inartfully drafted," it nevertheless found that, even given the infirmities identified, the affidavit still contained information sufficient to support a finding of probable cause. The Court rejected any suggestion that a magistrate judge must review the contents of the actual files or that a search warrant must include copies of the images giving rise to the request for the warrant in order for probable cause to be established. Nor does the investigating officer necessarily need to review the images himself, although this remains, in the Court's view, the best procedure for investigating officers to follow. Instead, the Court found that the title of the computer file at issue, which contained highly graphic references to specific graphic sexual acts involving "6yo" and "7yo" children, coupled with the file's SHA 1 value (i.e., a digital fingerprint identifying the file as one known to contain images of child pornography), provided the magistrate judge with a substantial basis for finding probable cause to issue a search warrant. Accordingly, the Third Circuit affirmed the defendant's conviction and sentence.