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Tuesday, May 08, 2012

Where a quasi Anders brief was filed by counsel along with pro se filings by appellant, Court of Appeals reiterates that there is no constitutional right to hybrid representation and that to do so is also in violation of Local Appellate Rule 31.3

Mr. Turner was indicted on three weapons offenses including 924(e) and was convicted after trial. In United States v. Turner, No. 10-4573 (E.D.PA 04/19/12), the Court of Appeals affirmed the conviction. In doing so, the Court noted the "unusual turns" this case took on appeal and addressed several issues that were raised as a result.

On appeal, the "unusual turns" are as follows: First, Mr. Turner’s counsel filed a "quasi Anders brief" which raised two colorable arguments and nine frivolous arguments - in it there was no request to withdraw as counsel; Second, Mr. Turner filed a pro se pleading that the Court construed to be a motion for leave to file supplemental brief - in it he requested that counsel withdraw and he raised new arguments on the merits; Third, and in response to Turner’s pro se filing, his counsel filed a Motion for Leave for Appellant to File a Pro Se Supplemental Brief, noting that Third Circuit Local Appellate Rule 31.3 permitted the filing of a supplement brief, "if appropriate." Both the "quasi Anders brief" and the pro se document were forwarded to the merits panel. In response, the Government asked the Court to reconsider, arguing that Turner was seeking "hybrid representation." Turner responded pro se and argued that he was entitled to "hybrid representation" because he and his counsel were divided on meritorious issues. His counsel then filed a response reiterating that this was an "unusual case," adding that a "quasi Anders brief" was filed in order to make any arguments possible on behalf of the client while also addressing arguments the client insisted be made despite the advice of counsel. The motions panel denied the Government’s motion for reconsideration. Thereafter the Government filed a merits brief addressing the two colorable claims filed by Mr. Turner’s counsel but refusing to address the remaining claims arguing that it was prohibited by Local Appellate Rule 31.3. Turner’s counsel filed a reply brief arguing that Rule 31.3 was ambiguous and permitted the filing of a supplement brief in the unusual case. The Court of Appeals then granted a yet to be ruled on request for leave for Turner to file a supplemental brief. In response, Turner filed another brief which raised four additional issues but without any legal support. The Government, confused, argued that the Court should not consider the pro se arguments while Turner was represented by counsel.

The Court of Appeals then turned to the two non-frivolous claims raised by Turner’s counsel. With little discussion, the Court found no plain error in both his argument that a limiting instruction should have been given regarding a cooperating witnesses and in its admission of evidence it deemed relevant.

The Court then took the opportunity to explain the proper procedure counsel should follow when a disagreement exists with their clients as to which arguments to present to the Court on appeal.

First, the Court of Appeals held that a "quasi Anders brief," though well intentioned, was improper. The Court noted that there is no constitutional obligation for counsel to present frivolous arguments. The Court also found that the Rules of Professional Responsibility do not propose such a solution to these types of disagreements. To the contrary, the Rules suggest counsel has an ethical obligation to not pursue frivolous appeals. An Anders brief is not a "substitute for an advocate’s brief on the merits." To do otherwise, vis-a-vis a "quasi Anders brief" runs afoul of these principles. The Rules of Professional Responsibility propose that if such disagreements exist the client should discharge their lawyer - although the Court cautioned that an indigent appellant does not have a right to counsel of choice nor does an appellant have a right to proceed pro se.

Second, the Court of Appeals held that it would not accept the invitation to consider Mr. Turner’s pro se filings as it is prohibited by Local Rule 31.3 which forbids such consideration when he was represented by counsel. The Court noted that it may have considered such filings in the past, but that practice should have been abrogated once Local Rule 31.3 was adopted in 2002. It also clarified that the Local Rule permits supplemental filings by "counsel" and not by represented party. This ensures that "counsel and the client speak with one voice" and avoids the "morass of hybrid advocacy" that this case presented.

Gagnon applies to the voir dire process.

Mr. Johnson was convicted after a jury trial on charges of cocaine distribution, possession of a firearm by a convicted felon and carrying a firearm during in relation to a drug trafficking offense. In United States v. Johnson, 11-2170 (E.D.PA 04/19/12), the Court of Appeals affirmed the judgement and 120 months sentence of imprisonment imposed by the District Court.

On appeal, Johnson made four arguments. First, he argued that during the voir dire process the district violated his right to be present at all stages of trial under the United States Constitution as well as Federal Rules of Criminal Procedure 43. Specifically, his complaint rested with the district court’s questioning of prospective jurors at sidebar outside his presence. The Court of Appeals noted that during jury selection, neither Johnson nor his counsel objected to this practice. As a result, Johnson’s lawyer was deemed to have consented to this practice and therefore waived Mr. Johnson’s right to challenge it on appeal. Likewise, because no objection was made, the challenge under Rule 43 was also deemed to be waived. The Court further held that no warning of this right need be given. In so finding, the Court of Appeals joined several other Circuits in applying United States v. Gagnon, 470 U.S. 522 (1985). Hence, the failure to invoke one’s right to be present at a conference between an judge and juror is deemed to be a waiver of that right.

Second, Johnson argued that trial court abused its discretion by denying the disclosure of the confidential informant’s identity. The Court of Appeals disagreed finding that Mr. Johnson had not met his burden set forth under Roviaro v. United States, 353 U.S. 53 (1957).


Third, Johnson argued that the evidence was insufficient to convict him of possession of a firearm in furtherance of a drug-trafficking offense. The Court of Appeals held that his illegal possession of a loaded firearm in his waistband was selling drugs was sufficient evidence.

Finally, Johnson argued that lower court erred by imposing an upward variance to 120 months from 97 to 106 months. Again, the Court of Appeals, disagreed, finding no abuse of discretion in an upward variance where the sentencing court concluded that previously imposed shorter sentences had not proven to be enough of a deterrent.

Friday, May 04, 2012

Convictions in Pennsylvania state court for simple assault and third-degree murder can qualify as “crimes of violence” for purposes of career offender designation under U.S.S.G. § 4B1.1.

In United States v. Marrero, No. 11-2351 (3d Cir. April 25, 2012), Ricardo Marrero, who pleaded guilty to two counts of bank robbery, appealed his sentence, arguing that the District Court erred in classifying him as a career offender under U.S.S.G. § 4B1.1, because two of the required three convictions for career offender status were not "crimes of violence": (1) simple assault (18 Pa. Cons. Stat. Ann. § 2701(a)(1)); and (2) third-degree murder (18 Pa. Cons. Stat. Ann. § 2502(c)). Marrero argued that neither conviction qualified as a crime of violence because both of his convictions could have been based on conduct that was reckless, rather than intentional. And if either one of these prior offenses were not a crime of violence, then he should not have been designated and sentenced as a career offender.

The Third Circuit rejected Marrero’s argument as to both convictions, finding that the District Court properly ruled that both were crimes of violence.

As to simple assault, the Court reasoned that for the simple assault conviction to satisfy the "residual clause" in § 4B1.2(a)(2), referring to offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another," the Court would have to find that it "typically involve[s] purposeful, violent, and aggressive conduct." To determine whether the simple assault conviction was for intentional or knowing conduct, rather than merely reckless or negligent conduct, the Court applied the "modified categorical approach," in which the Court can examine "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Here, in the plea colloquy, Marrero admitted to placing his hands around his wife’s neck and attempting to pull her up a flight of stairs. The Court found that the District Court properly ruled that this conduct constituted intent to cause bodily harm, which the Third Circuit has already held to qualify as a crime of violence.

As to third-degree murder, the Court looked to § 4B1.2 (Application Note 1), which states that the term "‘crime of violence’ includes murder," and so is an "enumerated" offense for purposes of the crime-of-violence analysis. For such enumerated offenses, the categorical approach of United States v. Taylor, 495 U.S. 575, 602 (1990) applies, and so "no inquiry into the facts of the predicate offense is permitted . . . ." The Court concluded that third-degree murder under Pennsylvania law is equivalent to the enumerated offense of "murder" and thus qualifies as a crime of violence for purposes of the career offender designation.

Signatories of trust fund account not in position of trust vis-a-vis the IRS for purposes of 3B1.3 sentencing guidelines enhancement.

In United States v. DeMuro, Nos. 11-1887, 11-1941 (3d Cir. April 23, 2012), the Third Circuit affirmed convictions of James and Theresa DeMuro for conspiracy to defraud the United States, and failure to turn over more than $500,000 in federal employment taxes collected from employees at their engineering company, much of which was spent on purchases from QVC and Home Shopping Network. But the Court remanded for resentencing because the District Court erroneously applied the two-level enhancement of U.S.S.G.
§ 3B1.3 for abuse of a position of trust.

The DeMuros challenged their convictions based on several evidentiary rulings admitting and excluding various evidence. None of the rulings seem remarkable, and so not surprisingly, the Court concluded that none were an abuse of discretion. That conclusion may have been inevitable in light of the additional red-flag argument that even if no single error alone would support relief, the cumulative effect of the rulings so infected the jury’s deliberations, etc. A very quick LEXIS check of the past 20 years found no cases in which the Third Circuit accepted that argument, which seems to be the appellate equivalent of a last-second Hail Mary pass from your own 1-yard line.

But what did find success (and presumably the reason the Court designated this case precedential) was the sentencing argument that the District Court erred in applying a two-level enhancement to the base offense level for abuse of position of trust, under U.S.S.G. § 3B1.3. The District Court applied the enhancement based on the DeMuros’ conduct with respect to the trust fund account imposed by the IRS, into which the DeMuros were obliged to pay company trust fund taxes within two days of withholding the taxes, but instead, withdrew from this account and closed it without IRS permission.

The Third Circuit ruled that the enhancement did not apply because the DeMuros did not satisfy any one of the three factors required for finding that they occupied a position of public or private trust, which requires considering: (1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests defendant vis-a-vis the object of the wrongful act; and (3) whether there has been a reliance on the integrity of the person occupying the position. Although the Government argued that the error was harmless because the ultimate sentence happened to fall within the correct sentence range (i.e., as if calculated without the 3B1.3 enhancement), the Third Circuit refused to find harmless error where the calculated Guidelines range was erroneous.