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Tuesday, April 24, 2012

Guideline Enhancement Not Mentioned in Rule 11(c)(1)(C) Plea Agreement Applies to Defendant

In United States v. Dahmen, No. 11-1521 (March 27, 2012), the Third Circuit addressed an interesting issue of whether the Government violated a Rule 11(c)(1)(C) plea agreement when it recommended a Chapter 4 enhancement that was not specifically mentioned in the plea agreement.

The Defendant pleaded guilty to transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) and possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). The agreement specified the base offense level for each count and referenced certain sentencing enhancements pursuant to Chapters 2 and 3 of the Guidelines, but made no mention of any enhancements pursuant to Chapter 4. The agreement also contained a waiver of appellate rights subject to three limited exceptions: (1) if the Government appealed; (2) if the sentence exceeded the statutory maximum; or (3) if the sentence exceeded the applicable Guidelines range. The agreement also noted that its “stipulations [were] not binding on the Court and [did] not preclude the parties from bringing to the attention of the United States Probation Office or the Court any other information.”

Before accepting the plea, the District Court clarified that although the plea agreement indicated that the stipulations made between the parties were not binding on the court, that language was incorrect. The Court explained that if it accepted the plea, the stipulations would be binding because the nature of the stipulations fall under the classifications set forth in Rule 11(c)(1)(C).

The Government objected to the PSR claiming that the Guidelines were subject to enhancement pursuant to USSG §4B1.5(b), which applies to defendants who engaged in a pattern of activity involving prohibited sexual conduct. The Probation Officer agreed and amended the PSR.

The Defendant did not contest the application of the enhancement but instead argued for a variance on the basis that USSG §4B1.5(b) was redundant because the factors it addressed were already contemplated by USSG §§2G1.3, 2G2.2 and 4A1.1, all of which were included in the plea agreement. The Court disagreed, denied the variance and sentenced the Defendant within the enhanced guideline imprisonment range.

First, the Third Circuit determined that the appropriate standard of review was plain error because of the Defendant’s failure to object in the District Court, citing Puckett v. United States, 556 U.S. 129, 134 (2009).

Second, the Circuit rejected the defense argument that once the District Court deemed itself bound by a written plea agreement that made no mention of the enhancement in question, it was prohibited from applying the unmentioned enhancement at sentencing. The District Court referred only to the paragraphs of the plea agreement which addressed only Chapters 2 and 3 of the Guidelines, relating to calculations of base offense level, conduct-related enhancements, and adjustments for multiple counts. Neither the District Court nor the written plea agreement mentioned §4B1.5(b) or any other Chapter 4 enhancements, which relate to criminal history.

Finally, the Circuit did not reach the Defendant’s issue that his sentence was unreasonable, as his appellate waiver prevented such review.



Thursday, April 19, 2012

Court rejects sufficiency challenge to knowledge of conspiracy; finds no error in not granting new trial, use immunity, or suppression

Court rejects sufficiency challenge to knowledge of the conspiracy; finds no error in not granting a new trial, refusing to grant use immunity to a co-conspirator, and not suppressing statements and weapons; and affirms sentences.

In United States v. Whiteford, 10-1023 & 10-1373 (3d Cir. Apr. 13, 2012), two defendants were convicted after a jury trial of conspiracy, 18 U.S.C. § 371, involving bid rigging and contract steering, and related offenses. Both defendants were officers in the U.S. Army Reserves deployed to Iraq from 2003 to 2004 who held positions in a regional office of the Coalition Provisional Authority which made them responsible for selecting and managing reconstruction projects and overseeing disbursement of millions of dollars. Six other people, including two businessmen, other reserve officers, and contract employees, were also charged with and pleaded guilty to this conspiracy. The Third Circuit affirmed the convictions and sentences.

First, the Court found there was sufficient evidence to establish each defendant’s participation in the conspiracy. The defendants conceded there was adequate proof of an agreement and an overt act but contested knowledge. The Court noted that willful blindness can satisfy the knowledge prong of a conspiracy charge. See also Third Circuit Model Criminal Jury Instructions § 5.06 (“No one can avoid responsibility for a crime by deliberately ignoring what is obvious.”). The Court also rejected that the government had to prove the United States was an intended target of the conspiratorial scheme because the defendants had been charged with the offenses, not defraud, prong of the conspiracy statute, which only required an intent to violate federal law.

The Court rejected that the jury charge was deficient because it failed to name the co-conspirators. The indictment included the names of more than one co-conspirator and so the identity of the co-conspirators was not treated as an element of the offense.

The Court rejected that the trial court erred in not granting a new trial because a private attorney (a new associate not yet barred) might have appeared to be coaching a key government witness from the audience during trial. If this information could be considered newly discovered evidence, it would not “probably produce an acquittal” because there was no evidence the witness falsified his testimony.

The Court rejected that it was error for the court to refuse to grant use immunity to a co-conspirator. The government was not intentionally disrupting the fact-finding process by not granting immunity but instead wanted to avoid having a Kastigar hearing when it prosecuted this co-conspirator. The testimony was not essential to the defense because it was not “clearly exculpatory”: multiple portions of the witness’s statements to the police had inculpated the defendant.

The Court rejected defendant Wheeler’s argument that his motion to suppress statements and weapons was erroneously denied. Some of the conspirators considered starting their own company and received a shipment of weapons in the United States that they moved them from one location to another. Wheeler kept some of the weapons. FBI agents contacted Wheeler and eventually went to his home to investigate. When the agents arrived, Wheeler informed them he had consulted an attorney and that the attorney directed him to cooperate unless he “got stumped.” The Court determined these remarks were not an objectively identifiable request for counsel, and did not amount to invocation of Fifth Amendment rights. In addition, Wheeler’s Miranda waiver was sufficient because he signed an Advice of Rights form, and there was no evidence of intimidation or coercion. The Court rejected the proposition that a defendant must know the charges against him to validate a Miranda waiver.

Finally, the Court affirmed that the loss calculations appropriately attributed to defendants the value of the bribes they reasonably could have foreseen their co-conspirators receiving.

Sunday, April 15, 2012

Rules of Evidence (not Bruton) apply to admission of non-testimonial statements, § 924(j) incorporates 924(c)'s consecutive sentencing scheme . . .

The Rules of Evidence (not Bruton) apply to admission of non-testimonial statements by co-defendants, 18 U.S.C. § 924(j) incorporates the consecutive sentencing scheme of 924(c), and other trial issues deemed not reversible error (improper admission of 404(b) evidence, prosecutorial misconduct and jury charges).

United States & Gov’t of Virgin Islands v. Berrios, Nos. 07-2818, 07-2887, 07-2888 and 07-2904 (3d Cir. Apr. 10, 2012), is an appeal from a four defendant trial for the federal charges of carjacking, attempted robbery, 18 U.S.C. § 924(c), and causing the death of a person through use of a firearm, 18 U.S.C. § 924(j), and the Virgin Island charges of felony murder and unauthorized use of a firearm. The Court affirmed the convictions and sentences. While the Court primarily addressed the intersection between the Confrontation Clause and Federal Rules of Evidence and between 18 U.S.C. §§ 924(c) and (j), this case provides a good outline of the relevant appellate analysis of prosecutorial misconduct (vouching during witness examination and closing argument) and faulty jury instructions.

Some of the evidence admitted at trial came from a Title III recording of two of the defendants made while they detained and being investigated for unrelated charges. The question was what could be admitted against the non-recorded co-defendants. In light of Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143 (2011), the Court set forth a twofold inquiry. First, determine whether an out-of-court statement or portions of it are testimonial. If the statement is testimonial, the Confrontation Clause prohibits admissibility unless a witness is unavailable and there was a prior opportunity for cross-examine. If the statement is non-testimonial, admissibility is governed solely by the Rules of Evidence and not the Roberts “indicia of reliability” test. (Rejecting contrary interpretation in United States v. Jiminez, 513 F.3d 62 (3d Cir. 2008) and Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007)). The Court acknowledged that the Rules of Evidence address similar concerns of reliability as Roberts.

This distinction requires different standards of appellate review. Fundamental constitutional errors – that affect substantial rights – require automatic reversal. All other constitutional errors may be disregarded if they are harmless beyond a reasonable doubt. Non-constitutional errors are harmless when it is highly probable that the error did not prejudice the defendant. See United States v. Diallo, 575 F.3d 252, 264 (3d Cir. 2009).

The Court determined that, here (not categorically), the Title III recordings were non-testimonial. Thus, because Bruton v. United States, 391 U.S. 123 (1968)) was a “by-product” of the Confrontation Clause, and the statements on the Title III recording were non-testimonial, Bruton did not preclude admission of the statements against the non-recorded co-defendants. The Court rejected cases that had held otherwise. See Monachelli v. Graterford, 884 F.2d 749 (3d Cir. 1989) and United States v. Ruff, 717 F.2d 855 (3d Cir. 1983). Under the Rules of Evidence, the recordings were admissible as statements against penal interest, Rule 804(b)(3) – braggadocio that inculpated the speakers as well as other co-defendants.

The Court rejected the double jeopardy challenge to imposition of consecutive life term sentences for felony murder (V.I. law) and 18 U.S.C. § 924(j)(1). The Court found clear legislative intent to impose multiple punishments for a single underlying transaction. 924(j) expressly requires a 924(c) violation, penalizing a person who causes a death “in the course of committing a violation of subsection (c).” The Third Circuit concluded that 924(j) extends the penalty regime “imposed under” subsection (c), incorporating the consecutive sentence mandate in 924(c)(1)(D)(ii), which is the “veritable raison d’etre” of the statutory scheme. Such an interpretation avoids the anomalous result that 924(c) requires a consecutive sentence except when a firearm was used during a violent crime and a murder occurred. Although the Court concluded 924(j) was not merely a sentencing enhancement for (c), it also declined to resolve here whether 924(j) was a discrete offense.

The Court also found that 404(b) evidence, statements by one defendant about loose ammunition, was too attenuated to fall into the government’s suggested pattern of false exculpatory statements to show consciousness of guilt – but that the error was harmless. The Court rejected that the government had improperly vouched for two witnesses by its examination of a detective. The Court found the alleged vouching was a reasonable response to rehabilitate a witness after it was suggested her grand jury testimony was coerced. The Court agreed that the reading of a commemorative poem about the victim, use of an enlarged photo of him made into a puzzle, and references to one of the defendants being in jail was “rife with misconduct, and to a degree that should not be tolerated by a district court.” However, the prejudice was minimal and did not merit reversal where the conduct was a brief part of the seventy five pages of closing argument and thousands of pages of trial testimony and the judge repeatedly instructed the jury not to be swayed by bias or sympathy. Finally, the Court concluded that the objective, specific intent of carjacking was correctly charged when examining the whole instruction even though a juror might have mistaken the challenged part of the charge as relying on the victim’s subjective perception (and thus allowing a conviction based on empty threats or bluffs).

Friday, April 13, 2012

Clear Error Standard of Review Applies to a District Court's Application of U.S.S.G. Section 2C1.2(b)(3)

In, United States v. Richards, No. 10-4767, the Third Circuit affirmed the district court's application of U.S.S.G. Section 2C1.2(b)(3) to the defendant.

Richards, the former Director of Human Resources for the government of Luzerne County, pled guilty to violating 18 U.S.C. § 666(a)(1)(B), for accepting a bribe in excess of $1,000 but less than $5,000 in connection with assistance given a consulting firm interested in contracting with Luzerne County. Richards accepted $1,000 and free New York Mets tickets. In exchange, he helped Continental Consultants to obtain a contract with Luzerne County to provide temporary employment services for individuals hired to perform cleanup work in the aftermath of a 2006 flood. At the sentencing hearing, Richards objected to the court’s application of a four-level enhancement pursuant to § 2C1.2(b)(3), which applies to “an elected public official or any public official in a high-level decision-making or sensitive position.” The commentary defines the term in part, “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.”

Richards argued the enhancement was inapplicable to him because: (1) he had no hiring/firing authority; (2) he could not bind Luzerne County; (3) he could not take official action on Luzerne County’s behalf; (4) his duties were administrative, and not policymaking; (5) he had superiors who reported to the County Commissioners; and (6) his superior did not receive the enhancement when he was sentenced for his role in the bribery scheme. Richards did admit, however, that he was responsible for referring three or four top candidates for jobs to the County Commissioners. He also was responsible for administering the Human Resources Department and made various recommendations to his superiors, the Deputy County Clerk, and the County Commissioners. These facts, along with his job description, would later prove fatal to his argument.

On appeal, Richards argued that application of the enhancement was subject to de novo review, because the issue involves an interpretation of the Guidelines. The Third Circuit disagreed, finding that the deferential clearly erroneous standard applied “when considering a district court's application of the Sentencing Guidelines to a specific set of facts, that is, where the district court determined whether the facts ‘fit’ within what the Guidelines prescribe.” The Court also noted that its “review of these decisions will be of little help in future cases because the next government official inevitably will be in a different position and have different job responsibilities than the defendant does here,” further supporting application of the clearly erroneous standard of review. Finally, the Court reasoned that many other enhancements that require the district court to make similar factual determinations are also reviewed for clear error.

The Court then held that the district court’s application of the enhancement was not clear error, citing Richards’ responsibilities as director including referring top candidates to the County Commissioners for their ultimate hiring; designing, implementing and maintaining a centralized Human Resource Department; and writing, maintaining and applying county policies and guidelines. Finally, the Court rejected Richards’ argument that the enhancement should not be applied to him because it was not applied to his superior. The Court reasoned that “[w]ithout showing that [his superior’s] ‘circumstances exactly paralleled’ Richards’s, a ‘court should not consider sentences imposed on defendants in other cases in the absence of such a showing’ by Richards.” See United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008); United States v. Robinson, 603 F.3d 230, 234-35 (3d Cir. 2010).

Wednesday, April 04, 2012

Supervised Release Statute Specifies No Aggregate Limit on Post-Revocation Imprisonment

Joining two other circuits, the Third Circuit rules in United States v. Williams, No. 11-2267 (Apr. 3, 2012), that the principal federal supervised release statute does not specify any aggregate limit on the length of imprisonment that may be imposed for successive violations. Instead, the Court holds, the maximum sentences specified in the statute may be freshly imposed upon each and every revocation.

Under 18 U.S.C. § 3583(e)(3), a defendant whose supervised release is revoked may be required "to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release." The "term of supervised release authorized by statute" depends on the classification of the underlying offense. For a Class A felony, for example, the maximum is ordinarily five years; for a Class C felony, it is three years. See 18 U.S.C. § 3583(b).

Ms. Williams argued that these limits apply in the aggregate to all post-revocation sentences. Thus, if a defendant convicted of a Class C felony violates and is sentenced to 18 months’ imprisonment to be followed by another 18 months’ supervised release, any further violation occurring during the renewed period of supervised release subjects the defendant to no more than an additional 18 months’ imprisonment, i.e., no more than three years’ imprisonment in total.

Separately, however, § 3583(e)(3) provides that a defendant convicted of a Class C felony whose supervised release is revoked may be sentenced to up to two years’ imprisonment "on any such revocation." Relying on "the ‘legislative history and the atmosphere in which the statute was enacted,’" the Court holds that district courts may impose up to two years’ imprisonment upon each successive revocation, regardless of whether the aggregate length of all post-revocation imprisonment exceeds the initially authorized supervised release term of three years. The Court rejects Ms. Williams’s argument that this construction offends the rule that courts "should attempt to reconcile two seemingly conflicting statutory provisions whenever possible, instead of allowing one provision effectively to nullify the other provision." It also reads subsection (e)(3) as "unambiguous" and thus holds the rule of lenity inapplicable.