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Showing posts from May, 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 th…

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 o…

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 assaul…

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…