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Wednesday, February 22, 2012

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



In Long v. Atlantic City Police Department, et al.,  No. 06-4732 (11/9/2011), Mr. Long sought to extend the time for filing an appeal from a Fed.R.Civ.Pro. 59(e) ruling under Fed.R.App.Pro. 4(a)(4)(A) due to prison authorities’ obstruction of the delivery of the Fed.R.Civ.Pro. 59(e) dismissal.  Long had sued the Atlantic City Police Department , the New Jersey State Police, and some police officers and forensic chemists alleging some sort of conspiracy which prevented him from proving his innocence.  Screening the compliant resulted in the district court’s dismissing the complaint sua sponte before the defendants had been served.  The order and memorandum opinion were docketed on August 21, 2006, giving Long until September 4, 2006 to file a motion under Rule 59(e). However, on September 25, 2006, after the expiration of the appeal period, he filed a motion for reconsideration pursuant to Rule 59(e), along with a letter explaining that he had not received the district court’s filings until September 22, 2006. His transfer to another prison facility caused a delay due to the prison forwarding the filings form his old to his new prison. He claimed he told the district court of the move. The district court treated the motion as timely due to the delay, and rejected his motion on the merits.  On appeal, the Court had to consider both the motion for reconsideration was timely and if so, whether it was properly dismissed on the merits.

The Court first noted that it had held in United States v. Grana, 864 F.2d 312 (3d Cir. 1989), abrogated on other grounds by Virgin Islands v. Martinez, 620 F.3d 321 (3d Cir. 2010) the delay caused by prison authorities in delivering an adverse order could be excluded from the time to file a criminal appeal. The Court later applied that rule in a §2255 case to appeals under Fed.R.App.Pro. 4(a)(4)(A). This reasoning led the Court to conclude that the rule excluding delays in delivering an order due to prion delay could also apply to reconsiderations orders under Fed.R.Civ.Pro.59(e) when delivery of district court orders are delayed by prison authorities’ actions. The Court accepted Long’s certification, that stated that false statements would subject him to punishment that the documents were incorrectly mailed to the wrong prison and that his new prison opened legal mail before delivering it to prisoners.

Tuesday, February 21, 2012

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, the docket notes that Baker sent a letter to the clerk in December, 2005 notifying the clerk’s office of his new residence in Lewisburg. A second February 9, 2007 entry notes that Baker wrote to the clerk explaining that he had received word of the dismissal when he received a docket sheet and as a result filed neither an appeal or motion for reconsideration. He asked for a copy of the dismissal order and was sent one — on January 7, 2008!
            Before receiving the dismissal motion, Baker, on May 31, 2007, filed several motions, among them: a post-judgment motion under Fed.R.Civ.Pro. 60(b); a motion to file a notice of appeal under Fed.R.Civ.Pro. 4(a)(1); a motion to toll the time to take an appeal under Fed.R.Civ.Pro. 4(a)(4); and a motion to reopen the time to take an appeal under Fed.R.Civ.Pro. 4(a)(6). On January 16, 2008, Baker supplemented his May 31, 2007 motion, filing a motion to alter or amend the judgment under Fed.R.Civ.Pro. 59(e). In all of these motions Baker blamed the prison for his not receiving the dismissal order, preventing him from filing timely motions.  On January 31, 2008, the District Court denied all of the motions.  Baker filed another motion to reconsider under Fed.R.Civ.Pro. 59(c). This was denied on April 10, 2008, and Baker filed a timely appeal from that order.
Baker sought rulings that his appeal of the July 11, 2006 dismissal was timely pursuant to Fed.R.App.Pro 4(a)(4) and (6). Fed.R.App.Pro 4(a)(4) allows a district court to reopen the appeal period for fourteen days after the date to reopen is entered if it finds that the moving party did not receive notice of the order under Fed.R.Civ.Pro. 77(d) within 21 days of its entry, the motion is filed 180 days after judgment is entered or 14 days after Fed.R.Civ.Pro. 77(d) notice of entry of the judgment is received (whichever is earlier), and the district court finds no party would be prejudiced.  Fed.R.App.Pro 4(a)(6) allows the time to appeal to run from the date of a ruling on a timey filed Fed.R.Civ.Pro. 59 motion.
The Court first dealt with the Fed.R.App.Pro 4(a)(6). Baker asserted that the time to file his Fed.R.Civ.Pro. 59 motion ran from February, 2007, when he learned of the July 11, 2006 order.  Relying on Bowles v. Russell, 551 U.S. 205 (1977), the Court ruled that Rule 4’s time limits cannot be equitably tolled, as the time limit to appeal is derived from a statute, it is jurisdictional, and courts are without power to expand them. The delay caused by the prison sending the notice back to the district court, rather than forwarding it to Baker, could not be subtracted from the time between the issuance of the order and the time the appeal was due.  The mailbox rule for determining when a prisoner files a document does not stretch so far to allow the entry of an order to be the date a prisoner receives it.
The Court then dealt with whether under Fed.R.App.Pro 4(a)(4) his Fed.R.Civ.Pro. 59 motion could be deemed timely, allowing his appeal to proceed.  The Court ruled, on the same day it ruled on Baker’s case, in Long v. Atlantic City Police Department, No. 06-4732 (February 13, 2011), that a Fed.R.Civ.Pro 59(e) motion can be deemed timely when a prisoner alleges and proves that prison official delayed or interfered with the delivery of a final order of the district court.  Baker’s problem was not the prison though.  Rather, the error was the district clerk’s sending the notice of the dismissal to the wrong prison. Charitably, the Court noted, “We recognize that this conclusion works an unfortunate result for Baker.  The result is distressing, given that the clerks office seriously erred in failing to update Bakers address of record until more than a year had passed from when he notified the District Court of his move.”  (Perhaps this soothes Baker’s inner Mr. Bumble.)  As a result the only order the Court could review was the district court’s ruling that the Fed.R.Civ.Pro. 59(e) was not timely filed, and that, the Court of Appeals ruled, was correct.

Tuesday, February 14, 2012

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 contents of any wire, oral or electronic communication obtained pursuant to a search warrant be sealed immediately upon the expiration of the period fo the order?

(4) Whether the District Court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), during sentencing because the jury made no finding of fact as to whether the substances involved in the case were Schedule II, III or IV substances?

(5) Whether the conspiracy convictions are invalid on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time of the indictment?

(6) Whether the money laundering convictions are invalid because the money was laundered from lawful sources, i.e. because it was legal at the time to sell controlled substances over the internet without prescriptions?

(7) Whether the conspiracy conviction was a misdemeanor rather than a felony - - a conclusion that if correct, might undermine the money laundering conviction which requires proceeds to be from specified felonies, alter the Sentencing Guidelines calculations or bear upon the mutual understanding of the forfeiture agreement?

(8) Whether the grand jury proceedings were tainted by the presence of an allegedly improperly appointed Special AUSA; whether prosecutors made material misstatements and elicited false testimony during the grand jury proceedings; whether the indictment insufficiently stated the elements of the CCE charge because it did not allege with particularity three predicate felonies upon which a valid CCE charge must rely; and whether the District Court improperly limited public and press access to the pretrial jury selection procedures when it conducted a portion of the voir dire (individual voir dire) about sensitive subject in the presence of the parties in a closed jury room adjacent to the courtroom?

(9) Whether the District Court erred when it failed to suppress evidence obtained from the internet service providers that managed his email accounts because the five magistrate judges who issued the warrants lacked jurisdiction to do so because the warrants were ultimately executed on internet service providers in California, the warrants were unconstitutional general warrants, the warrants were invalid because they lacked probable cause, and the agents executing the warrants failed to adhere to the notice requirements of Rule 41 when they did not provide the defendant with a copy of the warrants; whether the District Court erred when it failed to suppress evidence obtained during the search of a garage because the garage was beyond the curtilage; whether the District Court erred when it failed to suppress evidence obtained from the defendant’s vehicle after his arrest?

(10) Whether the government presented sufficient evidence at trial to support the jury’s verdict of guilty with respect to the controlled substance distribution and importation charges?

(11) Whether various items of evidence (domestic and foreign business records, Excel spread sheets, bank check and wire-transfer exhibits, testimony of IRS Agent re domestic and international wire transfers, website screenshots, and summary exhibits) were admitted at trial in violation of the 6th Amendment’s Confrontation Clause and the Federal Rules of Evidence?

(12) Whether the District Court erred when it instructed the jury on certain matters including, advising them as a matter of law that each of the drugs listed in the indictment were controlled substances, the definition of "business enterprises involving narcotics", a cautionary instruction re cooperating witnesses and its instruction to consider whether witnesses who have pleaded guilty have an incentive to lie, instructing the jurors to "seek the truth", a "willful blindness" instruction re deliberate indifference, and an instruction on the elements of conspiracy and on the intent element of felony misbranding?

(13) Whether the government withheld exculpatory evidence (certain intercepted phone calls, emails, an indictment filed against coconspirators in New York, proffer statements from one of coconspirators and impeachment evidence against a coconspirator) in violation of Brady v. Maryland, 373 U.S. 83 (1963), and whether the government intruded into the defense camp by intercepting telephone calls he made while incarcerated in a federal detention center?

Thursday, February 09, 2012

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 Cir. 2004) and United States v. Navarro, 476 F.3d 188 (3d Cir. 2007).

However, in 2006, the Sentencing Commission proposed an amendment to USSG §2K2.1 in order to resolve a Circuit conflict (Amendment 691). This amendment removed Application Note 15, which said that "another felony offense" refers to offenses other than explosives or firearms possession or trafficking offense, and inserted a new Application Note 14 which said that the enhancement applies if the firearm or ammunition facilitated or had the potential of facilitating "another felony offense" or another offense. It also indicated that the enhancement applies in a case in which a defendant who during the course of a burglary finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm, during the course of the burglary, and in the case of a drug trafficking offense, in which a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia. Amendment 691 noted that the enhancement is warranted because the presence of the firearm has the potential of facilitating "another felony offense" or another offense. The Third Circuit held that it was bound by this commentary, as provided in United States v. Stinson, 508 U.S. 36 (1993).

Despite that fact that the Circuit held in Fenton that the offense of burglary to steal firearms could not serve as the predicate for a USSG §2K2.1(b)(6) enhancement, the Commission sided with those courts of appeal that had held to the contrary. Therefore, the rule stated in Fenton and reaffirmed in Lloyd and Navarro is no longer valid to the extent it was applied to the burglary and drug trafficking offenses referenced in Application Note 14.

Finally, the Court determined that Amendment 691 is not plainly erroneous or inconsistent with USSG §2K2.1(b)(6), as provided in Stinson, 508 U.S. at 47.