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Showing posts from February, 2012

Delay in delivering court order caused by prison authorities excluded from time to file motion for reconsideration

Prisoner who through no fault of his own did not receive notice of district court order dismissing his civil action not entitled to file a late appeal to the court of appeals

The lesson of Baker v. United States Government Officials, Nos. 08-2288 and 08-2365 (February 13, 2012)— which applies to appeals of civil orders (including those under §§2244 and 2255)— is that no news for five months means check the district court dockets.  Baker filed a tort claim in the U.S. District Court for the Western District of Pennsylvania alleging he was harmed by second hand smoke in his prison.  While the case was pending in 2005, Baker was transferred from FCI Lisbon (the opinion notes that there is no FCI Lisbon but rather an FCI Elkton in Lisbon, Ohio, but in order to avoid confusion, the opinion adopted the prison name used in the docket entries) to FCI Lewisburg.  On July 11, 2006, the district court granted the government’s Fed.R.Civ.Pro 12(b)(6) motion, but sent the dismissal order to FCI Lisbon, [and] as a result, the order was returned to the district court.  No one in the clerk’s office made any attempt to locate Baker.  Seven months later, on February 9, 2007…

Defendants in Multi-National, Internet-Based, Controlled-Substance-Distribution Case Seek Relief on Multiple Grounds Without Success

In United States v. Bansal, Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526, 07-4618, 09-1827 (3d. Cir. December 14, 2011), the Third Circuit discussed and then denied 13 of the 75 issues presented in this case involving a multi-national, internet-based, controlled-substance-distribution scheme. In the interest of brevity, the issues addressed in this 69-page opinion are as follows:

(1) Whether the money laundering convictions impermissibly merge with the underlying predicate felonies under United States v. Santos, 553 U.S. 507 (2008)?

(2) Whether the indictment insufficiently stated the elements of a CCE offense, and whether the conviction was flawed due to improper jury instructions and insufficiency of the evidence?

(3) Whether various emails intercepted pursuant to two warrant-authorized wiretaps should have been suppressed because they were not immediately sealed upon the warrant’s expiration pursuant to 18 U.S.C. § 2518(8)(a), which requires that the recordings of the con…

AMD 691 Vitiates Precedent that USSG §2K2.1(b)(6) Does Not Apply When the Predicate is Burglary of the Firearms that are the Subject of the Conviction

In United States v. Keller, Nos. 11-1172-1173 (3d. Cir. December 14, 2011), the Third Circuit vacated the sentence in this burglary of a gun shop case and remanded to the District Court to recalculate the guidelines range by applying the four-level enhancement in USSG §2K2.1(b)(6) for use or possession of any firearm or ammunition in connection with "another felony offense".

Keller pled guilty to conspiracy against the United States, stealing firearms from a federally licensed firearms dealer and possession of unregistered firearms, in violation of 18 U.S.C. §§ 371, 922(u), and 26 U.S.C. § 5861(d). Although the Probation Office included the four-level enhancement in Keller’s guidelines calculations, the District Court found that the enhancement did not apply. The Government then appealed.

In ruling in favor of Keller, the District Court followed existing Third Circuit precedent in United States v. Fenton, 309 F.3d 825 (3d Cir. 2002), United States v. Lloyd, 361 F.3d 197 (3d Ci…