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Tuesday, October 16, 2012

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

United States v. Ware, --- F.3d ----, 2012 WL 4216831 (3d Cir. Sept. 21, 2012). 
Defendants, each designated career offenders, were ultimately sentenced based on the crack guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010. In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2)."). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining "applicable guideline range" to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of "based on" in the federal statute as defined by Freeman. The government appealed.

 In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission's new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:
... Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)....
U.S.S.G. § 1B1.10 cmt. 1(A). Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of "based on" in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced "based on" a sentencing range that has been lowered, also requires any reduction be "consistent with applicable policy statements issued by the Sentencing Commission." Therefore, the plain language of the statute incorporates the Commission's statements which, although narrowing eligibility, do not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term "based on," but instead an additional limit on eligibility, therefore the meaning of the term "based on"—and the holding of Freeman—were not relevant.

 

Court Reverses in CP Case where Court did not View Challenged CP Evidence / Finds Unfair Prejudice

United States v. Cunningham, --- F.3d ----, 2012 WL 4075875 (3d Cir. Sept. 18, 2012).  Cunningham was charged in a three count indictment with receiving, possessing, and  distributing child pornography. Prior to trial, Cunningham filed a motion to preclude the government from showing the jury any of the child pornography videos recovered from his computer. He asserted that because he was stipulating that the government exhibits constituted child pornography the probative value of the evidence was diminished. The district court denied the motion, permitting the government to present "representative samples"and file names. The Court also directed the parties to meet and attempt to reach a stipulation and a joint cautionary jury instruction. The parties agreed to a stipulation advising the jury that the video files obtained from Cunningham’s IP address and physical address depicted real children under the age of 18 engaging in sexually explicit content.

After the government provided defense counsel with the video clips that it intended to present at trial, Cunningham filed another motion to limit the evidence, describing the extraordinarily violent videos in graphic detail. Cunningham objected to admission of the excerpts and alternatively proposed that the evidence should be to still images, absent any display of bondage or actual violence, absent any audio, and with faces obscured. In response, the government agreed not to use audio, but objected to the other limitations as an attempt to "sanitize" and mitigate the force of its evidence. The government proposed to present seven, several-second video clips.

The district court denied Cunningham's motion on the papers, without viewing the evidence, concluding that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Cunningham filed another motion to reconsider admissibility, arguing that his defense was that someone else had downloaded, possessed, and distributed the child pornography at issue, and, with the stipulation already made, there was little value in presenting the video excerpts. He also requested that the Court view the videos prior to ruling on his motion. The district court again denied the motion, stating that the descriptions of the video excerpts were sufficient for the court to rule.

Prior to voir dire, Cunningham requested that the district court advise all potential jurors that, if selected, they would "see a movie that shows a prepubescent minor being sexually penetrated by an adult," and "see graphic images of children, their genitals, and videos of illegal sexual acts, including oral sex, sexual intercourse, and graphic, violent, sexual images." Instead, the court advised and asked all of the potential jurors:

[T]his case involves an accusation that the Defendant received, possessed and distributed child pornography. During this trial you will be shown child pornography including graphic images and hear descriptions of computer files including graphic and offensive file names which will certainly be disturbing to most if not all of you. Regardless of your feelings on this subject matter and the graphic nature of the material presented, are you able to render a fair and impartial verdict based solely on the evidence presented in this court and my instructions to you on the law?
 

Some jurors were excused for cause. Other jurors were further questioned individually at sidebar, where more detailed information on the pornography was revealed, several of those were also excused.

During the trial the government presented two separate videos, containing seven video excerpts, including pre-pubescent children being bound, raped, and violently assaulted. Before and after each of the video excerpts were played, the district court read a cautionary instruction, which directed the jury to view the images in a fair and impartial manner. The jury convicted Cunningham on all counts.

On appeal, Cunningham argued that the district court erred in both failing to view the video excerpts before ruling on their admissibility and in failing to exclude or limit them given his stipulation to their criminal content. He further argued that the Court abused its discretion during voir dire by refusing to provide potential jurors with more detail describing the videos that would be presented during trial.

Procedural Error. The Circuit first found procedural error in the district court’s failure to view the challenged evidence. Relying on similar cases from the Ninth and Seventh Circuits, the Court found that the court "could not have fully assessed the potential prejudice" to Cunningham "and weighed it against the evidence's probative value" without looking at the video excerpts. Having read the written descriptions was not sufficient and should have "heightened the District Court's awareness of the need to see the videos to assess their prejudicial impact before it decided to admit them."

Substantive Error. The Court next held that the district court abused its discretion under Rule 403 by not limiting or excluding the video excerpts. The Court looked at both the elements of the charged crimes and the stipulations between the parties. Although limited by the stipulation, the Court found some probative value in the video clips, "a tendency to show that the offender knew the videos contain child pornography" and the persuasive impact of evidence. This minimal probative value, however, was subject to the law of diminishing returns, and the value of each clip was reduced by the one that preceded it. The aggregate risk of unfair prejudice was "tremendous," as the Circuit could tell just from the descriptions. Two clips in particular, caused the Court to conclude: "Even in the cesspool of evidence presented here, Excerpts 1 and 3 in the second set of video clips stand out. We will not repeat the description of them but note simply that their violent and sadistic character likely created "disgust and antagonism" toward Cunningham which risked "overwhelming prejudice" toward him." Therefore, the Court concluded, the district court abused its discretion in admitting those particular videos. Further, the Court could not conclude their admission was harmless.

Voir Dire. The Court rejected Cunningham’s argument that the district court abused its discretion by failing to publish the video excerpts to potential jurors, citing the district court’s efforts to inform the potential jurors of the graphic evidence to be expected and excusing those who indicated they could not be fair and impartial. The Court left it to the district court’s discretion on remand "to determine if more detailed information about the case would be advisable to ensure a fair and impartial jury."

Discovery for Organizational Defendants / Invited Error / Inconsistent Verdicts

United States v. Maury, --- F.3d ----, 2012 WL 4074565 (3d Cir. Sept. 17, 2012).  In a lengthy decision affirming convictions for organization and multiple individual defendants under the Clean Water Act, the Court addresses multiple issues and, in short, held: (1) Rule governing discovery rights of organizational defendants mandated disclosure only of the binding statements (Fed. R. Crim. P. 16(a)(1)(C)(i), (ii)), that related to alleged misconduct and not of all statements made by employees; (2) "invited error" doctrine applied and prevented defendants from objecting to district court's actions in giving the lesser-included offense and simple negligence instructions which they had requested; and (3) fact that the jury convicted defendants only of lesser-included offense of negligently violating the Clean Water Act, rather than any willful violation, and at same time found them guilty of knowingly participating in conspiracy to violate the CWA, was not necessarily inconsistent.

After an eight-month trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of violations of the Clean Water Act (CWA) and Clean Air Act (CAA), including conspiring to commit environmental pollution and worker safety violations, impeding their investigation, and substantive violations of the CWA and CAA. These offenses included unlawfully pumping contaminated water, burning drums of paint waste, and concealing several work-related accidents, one resulting in the death of an employee. Defendants raised multiple arguments both jointly and individually. The Court principally addressed the adequacy of pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure, the sufficiency of the jury instructions, and the alleged inconsistency of the verdict.

DiscoveryDiscovery in the case was contentious, particularly regarding statements of company employees. Initially, the district court granted a protective order allowing the government to defer production of discoverable statements by current and former employees until 30 days before the start of trial. Defendant’s subsequently filed several motions to compel discovery and also argued that, despite the protective order, they were entitled to all statements made by "co-conspirators," as the government intended to "bind" the company by the statements of those co-conspirators, as well as statements of employees whose conduct would bind the company. The Circuit noted that these requests did not concern the scope of Rule 16(a)(1)(C), but what Defendants were entitled to prior to 30 days before trial. The district court denied the motion to reconsider the protective order.

Consistent with the protective order, the government ultimately produced the withheld Rule 16(a)(1)(C) materials for 24 witnesses. Portions were heavily redacted, purportedly pursuant to the scope of Rule 16(a)(1)(C) which reads:
(C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:
(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

For employees who would bind the company under subsection (i), the government produced all oral statements that it intended to use at trial, and all written statements discussing issues on which the employee had the authority to bind the Company. For those who would bind the company because of their participation in specific conduct under subsection (ii), the government produced all oral and written statements discussing that specific conduct. Other statements from these individuals – statements unrelated to the charged conduct or observations of the conduct of others – were redacted. Defendants objected to the redactions, but did not object to the scope of the government's reading of Rule 16(a)(1)(C). Unredacted copies were produced as Jencks material prior to the testimony of each witness.

On appeal, Defendants argued that the district court erred in its reading of Rule 16(a)(1)(C) and deprived defendants of critical discovery, arguing that the discovery received under subsection (ii) was erroneously limited to statements by employees about specific misconduct, rather than any statements made by the employees. Finding that defendant’s did not preserve an objection to the actual scope of discovery under subsection (ii), the Circuit reviewed for plain error and rejected defendants’ claim.

The Court looked at the purpose of Rule 16(a)(1)(C), to apply the individual-defendant discovery rules to organizational defendants. Looking at subsection (ii), applying those rules to employees who engage in illegal conduct within the scope of their jobs and then make some statement about having done so, the Court held that the "conduct constituting the offense" and the ability "to bind the defendant in respect to that alleged conduct" contemplates statements regarding only the conduct itself. It is only in this context that the employee "speaks" on the behalf of the company. In addition, a broader interpretation would provide an organizational defendant with broader rights than those of individual defendants.

Jury InstructionsDefendants also challenged the district court's instructions to the jury, arguing that the court erred, first, in defining the mens rea for a misdemeanor violation of the CWA, and second, in refusing to include language stating that a showing of recklessness could not meet the mens rea for the charged offenses which required a "knowing" or "willful" violation.

Although the indictment charged felony (knowing) violations of the CWA, defendants requested that the trial court also instruct on the lesser-included misdemeanor offense, which penalizes negligent violations of the Act. In that regard, defendants requested that the court instruct the jury that a "person negligently violates the Clean Water Act by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances." A simple negligence instruction.

On appeal, defendants objected to the simple negligence instruction arguing that a showing of gross negligence was required, based on the subsequently adopted Third Circuit Model Jury Instructions and Supreme Court decision in Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007), a case analyzing and comparing use of the terms "willful" and "reckless" in the civil and criminal provisions of the Fair Credit Reporting Act. The Circuit declined to find that Safeco – addressing an entirely different statute – constitutionally altered, or altered at all, prior caselaw addressing the CWA. Accordingly, defendants were barred from relief by the invited error doctrine, and in any event, would not have overcome plain error review.

The Court also rejected defendants’ assertion that, in addition to an instruction that negligence was not a valid theory of liability on the felony counts, the district court should have included an instruction explaining that "recklessness" was likewise not sufficient to prove "knowing" conduct for a felony conviction. The Court found that the district court was well within its discretion to decline out of concern about confusing the jury and because the required intent was already addressed in other instructions defining "knowing," "willful" and "intentional" conduct.

 
Inconsistent VerdictsThough charged with felony violations of the CWA, (§ 1319(c)(2)) , two defendants, Prisque and Davidson, were convicted of lesser-included misdemeanor or negligent violations (§ 1319(c)(1)(A)). The two were also convicted, however, of knowingly and willfully participating in a conspiracy with the specific objective of violating the CWA. Defendants argued that these verdicts were mutually exclusive and that the conspiracy convictions should be vacated. The Court declined, explaining that the two were convicted of multiple objectives underlying the conspiracy charge, and even if some degree of inconsistency existed between the misdemeanor convictions under § 1319(c)(1) of the CWA and the conspiracy under 18 U.S.C. § 371, the conspiracy conviction could still stand based on the jury's verdict on the remaining underlying offenses. The verdicts were not "fundamentally at odds with one another."