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Monday, August 22, 2011

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.

Wednesday, August 17, 2011

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.)

Tuesday, August 16, 2011

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.