In US v. Powell, No. 11-2432 (Aug. 30, 2012), the Court looks again at sufficiency of the evidence to prove interstate commerce in a Hobbs Act prosecution. Powell and his co-defendant followed merchants from their businesses to their homes to rob them. The Court characterized the question on appeal as: whether a robbery of an individual in her home requires proof of a more substantial connection to interstate commerce than a robbery committed at a place of business. Here, because Powell specifically targeted his victims because they were business owners and he believed they would be in possessions of business proceeds, his crimes satisfied the Hobbs Act’s jurisdictional nexus. The natural consequence of this would be an actual or potential effect on interstate commerce. The Court also noted that the convictions could have been sustained under a "depletion of assets" theory.
Giving the Third Circuit model instruction in this case was appropriate (the defense had wanted an instruction that when the robbery takes place in a home, the effect on commerce must be substantial). In the Court’s view, this case demonstrates the hazard in adopting any bright-line rule about business v. personal premises in Hobbs Act cases. Each case must be decided on its facts, the Court notes, citing examples of cases that have not been held to fulfil the jurisdictional nexus.
See the Court's opinion earlier this week in Shavers for more on the Hobbs Act & ISC.
Friday, August 31, 2012
Court Rejects Third-Party Appeal; No Implied Right to Victim Appeal Under MVRA
In U.S. v. Stoerr, No. 11-2787 (Aug. 28, 2012), Stoerr’s employer, Sevenson Environmental Services, appealed the restitution order in his case, arguing that because it had voluntarily repaid Stoerr’s victim, the restitution order should have been to Sevenson, instead of the victim. The Court dismissed the appeal, finding that Sevenson, as a non-party, lacked standing to appeal.
Stoerr solicited and accepted kickbacks in his work overseeing a Superfund cleanup, and he passed the cost of the kickbacks on to victim Tierra, a company not receiving kickbacks, and to the EPA. When Sevenson learned of this, it compensated Tierra, and both brought a civil action against Stoerr and sought restitution in this proceeding. The district court denied restitution, holding that Tierra was the victim, and that Sevenson could pursue the civil remedy. The government moved to dismiss Sevenson’s appeal.
Sevenson acknowledged the presumptive rule that, as a non-party, it could not appeal; however, it argued that it was aggrieved, and should be permitted to appeal in this circumstance. The Court joined all the other Circuits to consider the question (DC, 8th, 9th, 10th, 11th) in holding that it would not permit a third party to disturb a defendant’s sentence. In so doing, it (1) held that the MVRA does not contain an implicit right to victim appeals (distinguishing the 6th Cir. case, Perry, which permitted a victim suit over a lien under the MVRA); and (2) noted that precedent on third-party appeals is generally in civil, not criminal, cases.
Stoerr solicited and accepted kickbacks in his work overseeing a Superfund cleanup, and he passed the cost of the kickbacks on to victim Tierra, a company not receiving kickbacks, and to the EPA. When Sevenson learned of this, it compensated Tierra, and both brought a civil action against Stoerr and sought restitution in this proceeding. The district court denied restitution, holding that Tierra was the victim, and that Sevenson could pursue the civil remedy. The government moved to dismiss Sevenson’s appeal.
Sevenson acknowledged the presumptive rule that, as a non-party, it could not appeal; however, it argued that it was aggrieved, and should be permitted to appeal in this circumstance. The Court joined all the other Circuits to consider the question (DC, 8th, 9th, 10th, 11th) in holding that it would not permit a third party to disturb a defendant’s sentence. In so doing, it (1) held that the MVRA does not contain an implicit right to victim appeals (distinguishing the 6th Cir. case, Perry, which permitted a victim suit over a lien under the MVRA); and (2) noted that precedent on third-party appeals is generally in civil, not criminal, cases.
Court Rejects Challenge to USVI Gun Statute
In U.S. v. Fontaine, No. 11-2602 (August 28, 2012), a Virgin Islands case, the Circuit held that the local statute criminalizing unauthorized possession of an "imitation" firearm during a crime of violence was not void for vagueness. It also held that the government had proved its case against Fontaine.
The statute reads: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm . . . loaded or unloaded . . . shall be sentenced to imprisonment of not less than one year nor more than five years except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be . . . imprisoned not less than fifteen (15) years nor more than twenty (20) years.
Fontaine and an accomplice robbed two victims at gunpoint. Police arrested Fontaine nine days later, but never recovered the gun. Although Fontaine threated to shoot the gun during the robbery, when he pulled the trigger, it didn’t fire. There was thus no evidence of its operability, and the government was forced to proceed on the "imitation" prong of the statute.
Fontaine argued that the statute was vague. The Court dispatched this argument readily. It noted that the plain meaning of "imitation" gave ample notice who might be punished. Particularly in a case like Fontaine’s, where the imitation gun was used just like a real gun would be, the Court continued, a defendant could have no complaint.
Fontaine also argued that the government had the burden to prove that he was not "authorized" to possess an imitation firearm. The Court held that the statute should be read simply to require proof that the defendant is not authorized to possess a firearm. Persons who are not authorized to possess firearms are also not authorized to possess a firearm in a crime of violence or possess an imitation firearm in a crime of violence. Any other reading, the Court argues, would be absurd. (Perhaps not so absurd, given that Judge Cowen dissents on this point, in a 10-page opinion?)
The statute reads: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm . . . loaded or unloaded . . . shall be sentenced to imprisonment of not less than one year nor more than five years except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be . . . imprisoned not less than fifteen (15) years nor more than twenty (20) years.
Fontaine and an accomplice robbed two victims at gunpoint. Police arrested Fontaine nine days later, but never recovered the gun. Although Fontaine threated to shoot the gun during the robbery, when he pulled the trigger, it didn’t fire. There was thus no evidence of its operability, and the government was forced to proceed on the "imitation" prong of the statute.
Fontaine argued that the statute was vague. The Court dispatched this argument readily. It noted that the plain meaning of "imitation" gave ample notice who might be punished. Particularly in a case like Fontaine’s, where the imitation gun was used just like a real gun would be, the Court continued, a defendant could have no complaint.
Fontaine also argued that the government had the burden to prove that he was not "authorized" to possess an imitation firearm. The Court held that the statute should be read simply to require proof that the defendant is not authorized to possess a firearm. Persons who are not authorized to possess firearms are also not authorized to possess a firearm in a crime of violence or possess an imitation firearm in a crime of violence. Any other reading, the Court argues, would be absurd. (Perhaps not so absurd, given that Judge Cowen dissents on this point, in a 10-page opinion?)
Court Finds Proof of Witness Tampering Insufficient
In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.
On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate. (This opinion, and Powell, from a few days later, contain good discussions of the case law in this area, thanks to the strong challenges made by the defendants. Check them out for your next ISC case.)
The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.
The Court affirmed the admission of suggestive show-up identifications, ruling that the identifications were reliable enough to justify their admission. It affirmed the admission of testimony regarding a photo array and a lineup, finding neither to be unduly suggestive. It finds a cell-block "mishap" in which one defendant was seen by a witness who had not previously given a reliable description potentially grounds for suppressing the witness’ identification, but finds that admission of the ID was harmless error, given the other evidence against the defendant.
The Court also affirmed admission of 404(b) evidence of an investigation of a Post Office robbery in which the defendants were suspects. The evidence was properly admitted because (1) the government used it to support its witness tampering theory that a federal proceeding was foreseeable; (2) a related search uncovered evidence admitted in the government’s case in chief; and (3) it explained references in recorded calls admitted in the government’s case in chief.
The Court also affirmed the denial of a mistrial after a witness testified: "Having me testify right here, like I’m afraid for my life. By me saying what I said in this courtroom today, there’s no way possible I can stay in Philadelphia. Like that’s a known fact right there. That’s a given, like. For a fact, I know G Bucks [Shavers] is a killer." This was a single comment by a witness who was substantially impeached. The Court gave a stern curative instruction, and there was substantial evidence against Shavers.
The Court rejected a (plain error) Confrontation Clause challenge, citing Berrios, because the statement was not testimonial, it was made in a casual conversation.
Finally, an unincarcerated defendant has no privacy interest against admission of recorded phone calls with incarcerated defendants, particularly when he has been in the same prison before, and presumably knows the rules about recorded conversations.
On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate. (This opinion, and Powell, from a few days later, contain good discussions of the case law in this area, thanks to the strong challenges made by the defendants. Check them out for your next ISC case.)
The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.
The Court affirmed the admission of suggestive show-up identifications, ruling that the identifications were reliable enough to justify their admission. It affirmed the admission of testimony regarding a photo array and a lineup, finding neither to be unduly suggestive. It finds a cell-block "mishap" in which one defendant was seen by a witness who had not previously given a reliable description potentially grounds for suppressing the witness’ identification, but finds that admission of the ID was harmless error, given the other evidence against the defendant.
The Court also affirmed admission of 404(b) evidence of an investigation of a Post Office robbery in which the defendants were suspects. The evidence was properly admitted because (1) the government used it to support its witness tampering theory that a federal proceeding was foreseeable; (2) a related search uncovered evidence admitted in the government’s case in chief; and (3) it explained references in recorded calls admitted in the government’s case in chief.
The Court also affirmed the denial of a mistrial after a witness testified: "Having me testify right here, like I’m afraid for my life. By me saying what I said in this courtroom today, there’s no way possible I can stay in Philadelphia. Like that’s a known fact right there. That’s a given, like. For a fact, I know G Bucks [Shavers] is a killer." This was a single comment by a witness who was substantially impeached. The Court gave a stern curative instruction, and there was substantial evidence against Shavers.
The Court rejected a (plain error) Confrontation Clause challenge, citing Berrios, because the statement was not testimonial, it was made in a casual conversation.
Finally, an unincarcerated defendant has no privacy interest against admission of recorded phone calls with incarcerated defendants, particularly when he has been in the same prison before, and presumably knows the rules about recorded conversations.
Wednesday, August 22, 2012
Implied bias doctrine disqualifies jurors who are close relatives of the parties involved in a trial, but does not categorically impute bias to coworkers of key trial witnesses.
In U.S. v. Ricardo Mitchell, No. 11-2420 (3d Cir. Aug. 7, 2012), Defendant Mitchell was convicted on charges relating to his possession of a firearm with an obliterated serial number. During the judge’s voir dire, Juror No. 28 said that she was a "close cousin" of the prosecutor, and Juror No. 97 said that he was an employee of the police department who worked with Government witnesses. Neither party posed additional questions to the jurors, challenged them for cause, or used a peremptory strike, and both were seated as members of the jury.
Later that day, Mitchell filed a motion to strike Juror 97 for cause. The District Court denied the motion. The jury found Mitchell guilty, and he was sentenced to 15-years’ imprisonment. Mitchell appealed to challenge the presence of both Juror 28 and Juror 97 on the jury.
Addressing the doctrine of implied juror bias — a legal question focusing on whether an average person in the juror’s position would be prejudiced, regardless of actual prejudice — the Court held that it can disqualify jurors "whose connection with the litigation makes it highly unlikely that they can remain impartial adjudicators," citing its earlier dicta in U.S. v. Calabrese, 942 F.2d 218, 224 n.2 (3d Cir. 1991).
Because Mitchell first challenged Juror 28 on appeal – arguing that she should have been excused for cause because, as a "close cousin" to the prosecutor the law categorically imputes bias — the Court reviewed the issue for plain error. The Court observed that a juror’s "consanguinity is the classic example of implied bias," noting Chief Justice Marshall’s discussion in Aaron Burr’s trial for treason. See U.S. v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807). But the Court limited the parameters of the implied juror bias doctrine to "close" relatives, rather than distant relatives "whose relationship is sufficiently attenuated so as not to undermine the appearance of fairness in judicial proceedings." Here, the Court found that the record provided only a "bare-bones" description of Juror 28's relationship with the prosecutor, precluding a clear finding as to whether she was a close or distant relative. Therefore, the Court remanded to the District Court for an evidentiary hearing, and if Juror 28 were found to be a close relative, then seating her was plain error requiring a new trial.
As to Juror 97, the Court found that the District Court did not abuse its discretion in denying the motion to strike. The Court found no basis to "fashion a new category of implied bias for coworkers of police officers who testify as witnesses in a criminal trial."
In a partial dissent, Judge Jordan asserted that Juror 97 should have been presumptively excluded under the implied bias doctrine.
Later that day, Mitchell filed a motion to strike Juror 97 for cause. The District Court denied the motion. The jury found Mitchell guilty, and he was sentenced to 15-years’ imprisonment. Mitchell appealed to challenge the presence of both Juror 28 and Juror 97 on the jury.
Addressing the doctrine of implied juror bias — a legal question focusing on whether an average person in the juror’s position would be prejudiced, regardless of actual prejudice — the Court held that it can disqualify jurors "whose connection with the litigation makes it highly unlikely that they can remain impartial adjudicators," citing its earlier dicta in U.S. v. Calabrese, 942 F.2d 218, 224 n.2 (3d Cir. 1991).
Because Mitchell first challenged Juror 28 on appeal – arguing that she should have been excused for cause because, as a "close cousin" to the prosecutor the law categorically imputes bias — the Court reviewed the issue for plain error. The Court observed that a juror’s "consanguinity is the classic example of implied bias," noting Chief Justice Marshall’s discussion in Aaron Burr’s trial for treason. See U.S. v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807). But the Court limited the parameters of the implied juror bias doctrine to "close" relatives, rather than distant relatives "whose relationship is sufficiently attenuated so as not to undermine the appearance of fairness in judicial proceedings." Here, the Court found that the record provided only a "bare-bones" description of Juror 28's relationship with the prosecutor, precluding a clear finding as to whether she was a close or distant relative. Therefore, the Court remanded to the District Court for an evidentiary hearing, and if Juror 28 were found to be a close relative, then seating her was plain error requiring a new trial.
As to Juror 97, the Court found that the District Court did not abuse its discretion in denying the motion to strike. The Court found no basis to "fashion a new category of implied bias for coworkers of police officers who testify as witnesses in a criminal trial."
In a partial dissent, Judge Jordan asserted that Juror 97 should have been presumptively excluded under the implied bias doctrine.
Evidence seized in warrantless search of house admissible where police had mistaken but reasonable belief that the house was abandoned, based on totality of circumstances.
In U.S. v. Harrison, No. 11-2566 (3d Cir. Aug. 7, 2012), Defendant Khayree Harrison was charged with possessing crack cocaine with intent to distribute. The physical evidence against him — a gun, scales, pills, and crack cocaine on a table next to the recliner in which he was sitting — was obtained when police surprised Harrison in his rented house, having walked through the open front door without a warrant. Harrison moved to suppress the evidence seized during arrest without a warrant as violating the Fourth Amendment right against unreasonable search and seizure. The District Court denied Harrison’s motion to suppress, finding that although Harrison had a reasonable expectation of privacy in his rented house, the police acted under the reasonable (but mistaken) belief that the house was abandoned. Harrison was convicted at trial and sentenced to 62 months’ imprisonment. On appeal, the Third Circuit affirmed the conviction, holding that the District Court properly denied the suppression motion.
The Court recognized that establishing that a person has lost his reasonable expectation of privacy in real property by abandoning it is difficult to establish, but not impossible. Circuit Judge Fuentes wrote that "[b]efore the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned." Although the Court found that Harrison had not actually abandoned the rented house and so did possess a reasonable expectation of privacy, for Fourth Amendment purposes the issue was whether the police officers' mistaken belief that the house was abandoned was reasonable enough, under the totality of the circumstances, to justify their warrantless entry.
The police testified that they had observed this particular house over several months to be in a dilapidated condition, its backyard full of trash and overrun by weeds, and the front door unlocked and open.
The Court stated that it would be unreasonable for police to assume that a house is abandoned solely because it is poorly maintained — there is no "trashy house exception" under the Fourth Amendment. But here, police knew that the house had a history as a drug den and had evicted squatters in previous months, so they were familiar with its condition: they observed that the only furnishing was a single mattress on the top floor, drug debris was littered throughout the house, human waste filled the bathtub and toilets, and there was no evidence of running water or electricity.
The Court concluded that "[i]t is one thing to infer that person has abandoned his expectation of privacy in his home based on a one-time observation. It is quite another to observe that same property in that same dilapidated condition with a front door that is always open over the course of several months . . . . Given the combination of the rundown exterior, the always open door, the trashed interior, and the extended observations over time, the police officers were reasonable in their mistaken belief that the house was abandoned."
The Court recognized that establishing that a person has lost his reasonable expectation of privacy in real property by abandoning it is difficult to establish, but not impossible. Circuit Judge Fuentes wrote that "[b]efore the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned." Although the Court found that Harrison had not actually abandoned the rented house and so did possess a reasonable expectation of privacy, for Fourth Amendment purposes the issue was whether the police officers' mistaken belief that the house was abandoned was reasonable enough, under the totality of the circumstances, to justify their warrantless entry.
The police testified that they had observed this particular house over several months to be in a dilapidated condition, its backyard full of trash and overrun by weeds, and the front door unlocked and open.
The Court stated that it would be unreasonable for police to assume that a house is abandoned solely because it is poorly maintained — there is no "trashy house exception" under the Fourth Amendment. But here, police knew that the house had a history as a drug den and had evicted squatters in previous months, so they were familiar with its condition: they observed that the only furnishing was a single mattress on the top floor, drug debris was littered throughout the house, human waste filled the bathtub and toilets, and there was no evidence of running water or electricity.
The Court concluded that "[i]t is one thing to infer that person has abandoned his expectation of privacy in his home based on a one-time observation. It is quite another to observe that same property in that same dilapidated condition with a front door that is always open over the course of several months . . . . Given the combination of the rundown exterior, the always open door, the trashed interior, and the extended observations over time, the police officers were reasonable in their mistaken belief that the house was abandoned."
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