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Showing posts from June, 2012

Double Jeopardy and Due Process did not preclude trial on a bifurcated 922(g) count after the district court declared a mistrial on a 924(c) count.

The defendant in United States v. Figueroa, No. 11-2597 was charged with two counts of drug distribution, carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Figueroa admitted selling narcotics twice to an undercover officer. During the second sale, the officer testified that he saw a few inches of what he thought was a gun in Figueroa’s waistband. He could not be sure what the object was because it was dark outside. After that same sale, the police pulled over Figueroa’s girlfriend’s car, in which he was the passenger. During the stop, the police recovered a handgun from the glove compartment.  Both Figueroa and his girlfriend denied that they owned or even knew about the gun. At trial, the government prosecuted the 924(c) charge under the theory that Figueroa had a gun in his waistband during the controlled buy. They planned to prosecute the felon-in…

Court Emphasizes Scope of Remand / Rejects Multiplicity Findings in Drug/Gun Case

In United States v. Kennedy, 2012 WL 2161380 (June 15, 2012), the government appealed the district court’s decision, on a remand for "re-sentencing only," to vacate and merge several counts of conviction. Kennedy had been convicted on multiple drug counts possession of two handguns. At the initial sentencing, the District Court granted Kennedy's motion for a new trial with respect to four counts of conviction, which the Circuit reversed on appeal. On remand, the district court sua sponte found certain counts of conviction multiplicitous and vacated another count on the basis that its own jury charge was plainly erroneous. Here the Circuit vacates the court's judgment, reinstates all counts of conviction, and remands for resentencing to a different judge.

     The charges stemmed from the search of a home and two vehicles connected with Kennedy. Inside the house was $8,300 in cash, ammunition, and 10 grams of crack. In one care (the Lincoln), they discover…

Third Circuit Does Not Have Jurisdiction To Hear Direct Appeals Of Orders To Produce Supposedly Privileged Documents.

The Third Circuit reaffirmed the jurisdictional requirements for appealing an order to produce allegedly privileged documents in In Re: Grand Jury, ABC Corp.; John Doe 1; John Doe 2, No. 12-1697 (3d Cir. May 24, 2012).  A party cannot directly appeal a district court’s order to produce documents which the party believes are privileged.  Instead, a party must first refuse to comply with the production order, be held in contempt and then appeal the contempt order, asserting its claim of privilege.  The only exception was set forth in Perlman v. United States, 247 U.S. 7 (1918), where the Supreme Court held that when a custodian of records, who is not the privilege holder, is ordered to produce supposedly privileged documents, the privilege holder may directly appeal the order if the holder cannot otherwise disobey the order.  Since the privilege holder cannot personally disobey the order and then challenge a contempt finding, the holder must be allowed to immediately appeal the co…

The Third Circuit Expands Definition Of "a different location" For Application Of The Abduction Enchancement.

In United States v. Reynos, No. 11-1398, (3d Cir. May 22, 2012), the Third Circuit clarified the definition of abduction for purposes of four-level enhancement under U.S.S.G. §2B3.1(b)(4)(A).   According to the Guidelines a victim is “abducted” when he or she is “forced to accompany an offender to a different location.”  Under the Third Circuit’s analysis and ruling in Reynos, a very broad range of actions will qualify as an abduction and lead to the four-point enhancement.  In particular, the circuit court took an expansive view of what constitutes “a different location.” 

    This case involved the armed robbery of a pizzeria in Philadelphia.  During the robbery,  the employees hid, locking themselves in the bathroom.  The assailants, including appellant Reynos, kicked in the bathroom door and, brandishing a weapon, ordered the employees to open the cash register.  Later, all of the employees were able to escape, running out of the front door, while Reynos went to secure the back do…

No Relief for Career Offenders (Sentenced Within § 4B1.1 Range) Seeking Crack Reductions

In United States v. Thompson, defendant pled guilty to distribution of fewer than five grams of crack cocaine, but his sentencing range was ultimately calculated based on his classification as a career offender. Following the 2011 retroactive amendment to the Sentencing Guidelines that lowered the base offense levels for crack cocaine offenses, Thompson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).

     In United States v. Mateo, 560 F.3d 152 (3d Cir.2009), the Third Circuit held that a defendant sentenced under § 4B1.1 was not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” under 18 U.S.C. § 3582(c)(2), because the crack cocaine amendment in §2D1.1 had no effect on Mateo's sentencing range: it altered the calculation of the base offense level for his crack cocaine offense, but not the calculation of the career offender Guidelines range actually used to compute his Guidelines…

S.Ct.: Fair Sentencing Act’s Lower Mandatory Minimums to Apply to the Post-Act Sentencing of Pre-Act Offenders

Consistent with the Third Circuit’s decision in United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011) , the Court held in Dorsey v. United States and Hill v. United States, 2012 WL 2344463 (June 21, 2012), that the Fair Sentencing Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. The Court cited six factors demonstrating Congressional intent to apply the new penalties retroactively: (1) The saving statute permits Congress to apply the new penalties without expressly saying so, where “the “plain import” or “fair implication” of the new statute point clearly in that direction”; (2) the SRA “sets forth a special and different background principle in § 3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter;” (3) the FSA implies that Congress intended to follow that prin…

S.Ct. - Apprendi Applies to Restitution

Southern Union Co. v. United States, http://www.supremecourt.gov/opinions/11pdf/11-94a1b2.pdf


     Petitioner Southern Union Company was convicted of violating a statute that criminalized storing liquid mercury without a permit, punishable by fines of up to $50,000 per day of violation. The indictment covered a period of over 2 years, but the jury's verdict on the single count did not specify how many days. Southern Union had argued below that under Apprendi it could not receive more than a $50,000 fine. The judge below disagreed, found a maximum potential fine of $38.1 million, and imposed a combined fine and community service obligation of $18 million.

     As usual for an Apprendi case, an unusual majority (Sotomayor, joined by Roberts, Scalia, Thomas, Ginsburg, and Kagan) holds that there is no principled distinction between fines and imprisonment or the death penalty, and that Apprendi applies to fines "where a fine is substantial enough to trigger the 6th Amendment'…

BOP and Retaliatory Placement

In Cardona v. Bledsoe, No. 10-2650 (3d Cir. June 19, 2012), the Court held that a suit for retaliatory placement in the special housing unit of a federal prison is properly brought under Bivens, not § 2241; affirms district court’s dismissal of suit.

     In this § 2241 habeas case from the Middle District of Pennsylvania, the petitioner is a federal prisoner who alleged that he was placed in the special management unit of USP-Lewisburg in retaliation for his litigation against the BOP. He petitioned pro se under 28 U.S.C. § 2241. The district court dismissed without prejudice to file as a civil rights lawsuit with the same allegations under Bivens, and Cardona appealed.
     The Third Circuit has held that § 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). In that case, the Circuit defined “execution” as “carrying out…

Court Upholds Challenge to BOP Placement Decision; Addresses 2241 and Exhaustion

In Vasquez v. Strada, No. 12-1114 (3d Cir. June 1, 2012) (published June 20, 2012, at Appellee’s motion), the Court held that BOP did not abuse its discretion in community placement assessment; exception to exhaustion requirement does not apply because issue does not involve only statutory construction.

     In this § 2241 habeas case from the Middle District of Pennsylvania, a federal prisoner challenges the BOP’s determination of his halfway house placement under the Second Chance Act of 2007 and 42 U.S.C. § 17541, the federal prisoner reentry initiative. The regulations implementing the Act require the BOP to make an individual determination of placement time, pursuant to 18 U.S.C. § 3621(b), and give the BOP discretion to consider incentives such as participation in skills development programs.

     The BOP’s assessment recommended Vasquez for community placement, but not for the maximum 12-month period, based partially on his failure to participate in educational programs. V…

Sup. Ct.: Admission of DNA results performed by non-testifying analyst, admissible when relied on by testifying expert.

The Court today (4-1-4) (Justices Alito, Roberts, Kennedy, and Breyer), in Williams v. Illinois, No. 10-8505, upheld an Illinois state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, though defendant had no opportunity to confront the actual analysts, where the statements are related by the testifying expert for the purpose of explaining the assumptions on which the expert’s opinion rests. The Court held such statements (test results) are not offered for their truth and fall outside the scope of the Confrontation Clause.  Moreover, the report was not the type of statement (such as affidavits, depositions, prior testimony, and confessions), that the Confrontation Clause was originally understood to reach. The fifth vote, Justice Thomas, found that the reports had been admitted for their truth, but were not "testimonial" for purposes of the Confrontation Clause.

     Justice Kagan’s dissent (jo…

SUPREME COURT: Reversal of CTA3 Habeas Grant on Jackson v. Virginia

In Coleman v. Johnson, 556 U.S. ___ (May 29, 2012), a non-capital habeas case from the Third Circuit, the Supreme Court reversed a grant of relief under Jackson v. Virginia, 443 U.S. 307 (1979), for insufficient evidence to support the conviction. This is the second Jackson per curiam reversal of this term – see also Cavazos v. Smith, 132 S.Ct. 2 (2011) – although in this case, unlike Cavazos, there are no dissents.


The Court describes a Jackson inquiry on habeas review as “two layers of judicial deference.” On direct appeal, “a reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Then, a federal habeas court can grant relief on a sufficiency of the evidence challenge “only if the state court decision was objectively unreasonable.”

Johnson was convicted for first-degree murder for a shooting death that occurred in an alleyway outside a bar. Johnson was prosecuted as an accomplice and…

Supreme Court: Reversal of Habeas Grant on Jackson and Pros Misconduct Claims

In Parker v. Matthews, http://www.supremecourt.gov/opinions/11pdf/11-845.pdf, Petitioner broke into his estranged wife's home, shot and killed her mother, had sex with the wife and then shot and killed her too. Presented extreme emotional distress defense, on which Commonwealth had burden of proof under Kentucky law, based on expert testimony on his intoxication and adjustment disorder. The Sixth Circuit granted habeas relief because the state court had impermissibly shifted the burden of proving EED to the defense and the CW had failed to disprove it. Circuit also found due process violation in prosecutor's closing argument that the petitioner colluded with his lawyer and his expert to concoct the defense.


SCOTUS, reverses in a per curiam decision. Erasing any doubts that the "double deference" concept applies beyond the IAC context, the Court faults the 6th Circuit for reading the Kentucky Supreme Court opinion as burden-shifting. While there were some portions of …

Anders in Habeas

In Simon v. Gov’t of the Virgin Islands, No. 09-3616 (May 9, 2012), the Circuit held that an Anders brief may be filed in habeas corpus proceedings but that the Virgin Islands Appellate Division court erred in affirming the denial of post-conviction relief based on an inadequate Anders brief, where the lower court had described certain claims as “non-frivolous” and there wsa arguable merit to the appeal.


In this non-capital habeas case from the Virgin Islands, the Third Circuit addresses the question of whether Anders procedures apply in the habeas context. (Because this case is from the Virgin Islands, this case, unlike most habeas cases reviewed by the Third Circuit, is not governed by 28 U.S.C. § 2254 or § 2241.) The Anders brief was filed on the appeal of Simon’s post-conviction petition in the Virgin Islands courts.

The Third Circuit holds that it is not error to apply Anders procedures in habeas, recognizing that there is no right to counsel in state post-conviction proceeding…

Third Circuit affirms drug conviction, but remands for resentencing in light of Fair Sentencing Act

Defendant Haziz Self was convicted on two counts of distributing crack cocaine and sentenced to a mandatory minimum sentence of 120 months' imprisonment. On appeal, Self identified six separate instances of possible error: (1) the disqualification of his counsel of choice; (2) the denial of his motion for a mistrial; (3) the denial of defense counsel's request to interview an alternate juror after the alternate alleged misconduct by other jurors; (4) the district court's refusal to adopt a mitigating role adjustment; (5) the total weight of the drugs involved in the offense; and (6) the use of a pre-Fair Sentencing Act (FSA) mandatory minimum. The Third Circuit, in United States v. Self, No. 11-1763 (3d Cir. May 30, 2012), rejected all but the defendant's FSA challenge. On that ground, the Court held, and the government conceded, that Self was entitled to be resentenced without application of any mandatory minimum because he was sentenced after the FSA was enacted.

Wi…