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Showing posts from August, 2012

More from Court on Hobbs Act Sufficiency

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 …

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 a…

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 p…

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 wit…

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…

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 suppres…