Thursday, May 19, 2011

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.”