Friday, August 16, 2013

As a matter of first impression, sentencing courts are not required to conduct two separate § 3553(a) analyses when imposing a new term of supervised release in addition to post-revocation imprisonment

United States v. Clark, No. 12-3462 (Aug. 13, 2013): During his term of supervised release, defendant Justin Clark was a passenger in vehicle pulled over out-of-state and found to be in possession of $20,000 in cash. Although no new criminal charges were brought as a result of this incident, Clark was charged with violating the terms of his supervised release for several traffic citations, failing to make payments on various fines and bank loan, and a positive drug test. Clark admitted to violating his supervised release and faced an advisory Guidelines range of 7 to 13 months. He argued for house arrest in lieu of incarceration. The district court sentenced him to 13 months imprisonment and a new 47 month term of supervised release. The sole basis for this sentence was Clark's overall conduct which, according to the court, demonstrated a general pattern of noncompliance with supervision.

On appeal, Clark argued that the district court should have been required to conduct two separate analyses under 18 U.S.C. § 3553(a) - one with respect to Clark's 13 month term of imprisonment and a second, separate analysis with respect to his 47 month term of supervised release. The Third Circuit rejected this argument, concluding that such an added layer of procedural formality would not further any substantive end because a full discussion of the § 3553(a) factors necessarily includes both the punitive purposes post-revocation incarceration as well as the rehabilitative purposes of supervised release. Here, however, the Third Circuit found the district court's procedure lacking. Specifically, while the record revealed a full discussion of the first § 3553(a) factor, the nature and circumstances of the offense and the history and characteristics of the defendant, the court merely enumerated the remaining § 3553(a) factors without discussion. This insufficient development of the record rendered the sentence imposed procedurally unreasonable and required a remand for resentencing.

Crime of knowingly presenting a materially false statement in an immigration form requires a statement made under oath

United States v. Ashurov, No. 12-2711 (Aug. 12, 2013): Defendant, a citizen of Tajikistan, entered the United States under a visitor's visa and subsequently sought to obtain an F-1 student visa that would permit him to enroll in an English language program and temporarily remain in the U.S.. As part of the F-1 student visa application process, Ashurov signed a student certification form (Form I-20) agreeing to comply with the terms and conditions of his admission as a student and certifying that he was seeking admission for the purpose of pursuing a full course of study. Ashurov completed the Form I-20 once a year for three consecutive years. The certification was not made under oath or penalty of perjury. An investigation of Ashurov's school eventually revealed that the school was not in compliance with federal regulations and, further, that Ashurov was not in compliance with the terms and conditions of his student visa, despite repeatedly certifying on his Form I-20 that he was in compliance.

Ashurov was convicted after trial of presenting a materially false statement in an immigration form, in violation of 18 U.S.C. § 1546(a), but the district court entered a judgment of acquittal concluding that the government failed to prove that Ashurov made any statements under oath. The United States appealed, asking that the conviction be reinstated because the "knowingly presents" clause of § 1546(a), which Ashurov was charged with violating, did not require that the materially false statement be made under oath.

After considering the plain language of the statute, various canons of statutory construction, the legislative history of the statute, the statute's purpose, and the single precedential case previously interpreting the statute, the Third Circuit concluded that there remained a grievous ambiguity as to the meaning of the "knowingly presents" clause of § 1546(a) and whether it required that the false statement be made under oath. Accordingly, applying the rule of lenity to the "needlessly  convoluted statute," the Court ruled in Ashurov's favor and upheld the judgment of acquittal.

Congratulations to Brett Sweitzer and the Philadelphia Federal Community Defender Office on the win!

Graphic videos of child pornography are admissible and relevant to show knowledge despite defendant's offer to stipulate videos constituted child pornography

United States v. Finley, No. 12-2524 (Aug. 12, 2013): Defendant Craig Finley appealed his conviction for production, receipt, distribution, and possession of material depicting the sexual exploitation of a minor and sentence of 50 years' imprisonment followed by lifetime supervised release. The Third Circuit affirmed.

(1) Graphic videos and images were admissible and relevant to show knowledge despite defendant's offer to stipulate that videos constituted child pornography.

Before the jury was selected, defense counsel offered to stipulate that the videos and images obtained from the computers in the defendant's apartment were, in fact, child pornography, on the condition that the government not show the videos and images to the jury. The government refused the stipulation. After personally reviewing each proposed exhibit, the district court concluded that the videos and images were relevant and that the possible prejudice in introducing the evidence was outweighed by its probative value. The government, over defendant's objection, showed the jury 13 video segments and two segments of child pornography.

The Third Circuit affirmed the district court's admission of the evidence. The Court agreed that the videos and images were probative of an essential element of the offense, namely, the defendant's knowledge that the videos and images contained child pornography. The Court also found that the district court properly exercised its discretion in admitting a small sampling of the videos and images obtained only after personally reviewing the admitted evidence, weighing any unfair prejudice against the probative value of the images, and cautioning potential jurors about the disturbing nature of the potential evidence as part of the jury selection process.

(2) District court did not err by instructing jury that a sleeping child can "engage in" sexually explicit conduct within the context of 18 U.S.C. § 2251(a).

With respect to his conviction for producing material depicting the sexual exploitation of a minor, the defendant argued that the district court erred in instructing jurors that a sleeping child can "engage in" sexually explicit conduct. He asserted that § 2251(a) requires the minor, as opposed to the perpetrator, to actively engage in sexually explicit conduct. The Third Circuit rejected this argument, holding that the plain language of the statute, public policy, and persuasive case law all compel the conclusion that active involvement on the part of a minor is not essential for a conviction under § 2251(a).

(3) Punishment for both receipt and distribution of material involving the sexual exploitation of a minor did not violate Double Jeopardy.

Finally, the defendant argued that the district court violated his double jeopardy rights by separately considering, for purposes of sentencing, his convictions for receiving and distributing material depicting the sexual exploitation of a minor under 18 U.S.C. § 2252(a)(2). While the Third Circuit agreed that the defendant's convictions were the same in law, because § 2252(a)(2) did not contain multiple subsections or separate clauses indicating separate crimes for receipt and distribution, the convictions were not the same in fact. The Court found that the defendant distributed certain images that he produced separate and apart from images he received, he received images that he did not possess, and he distributed different images that he already possessed, thus making multiple punishments permissible.

Monday, August 12, 2013

En Banc Court Disavows Heightened Standard of Review in Challenges to Sufficiency of Evidence in Drug Conspiracy Prosecutions

United States v. Caraballo-Rodriguez, No. 11-3768.  Sitting en banc, a unanimous Court revisits “a long line of cases” addressing the government’s burden in drug trafficking prosecutions to show that a defendant (commonly, a courier) knew the object of a conspiracy was the distribution of a controlled substance, not just some type of contraband. Reading one line of precedent to have applied an improperly heightened standard, the Court clarifies that review for the sufficiency of evidence is the same in this context as in others.

Under the Jackson v. Virginia test, the Court reiterates in an opinion by Judge Rendell, “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction … is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” When applying this standard, the Court does not have the privilege of casting the “decisive vote on the jury,” but must affirm so long as “the jury’s verdict did not fall below the threshold of bare rationality.”

In drug conspiracy prosecutions, “the prosecution must prove the defendant’s knowledge of the conspiracy’s specific objective” — that is, must prove the defendant knew he or his co-conspirators were moving drugs. The Court clarifies, however, “that knowledge need not be proven by direct evidence.” So long as “a jury could rationally conclude that the defendant knew the subject of the conspiracy was drugs,” it is not fatal to the conviction that “the evidence was as consistent with contraband other than controlled substances.”

The Court concludes by finding in the case before it that the jury could reasonably have concluded both that the defendant knew he was involved in an illegal venture and that he “knew — or was willfully blind to the fact — that the illegal venture involved transporting drugs.” The Court emphasized the large amount of money the jury could infer the defendant had been offered to retrieve two suitcases from a luggage carousel, evidence that he had been left alone with this luggage for a time, and the heavy weight of the suitcases, which, the Court explained, jurors might decide as a matter of “common sense” would have led the defendant to know that they held drugs rather than cash, or at least to have been aware of the high probability they did.

In the course of clarifying its case law, the Court offers a sustained discussion of nine prior decisions in which it evaluated the sufficiency of the evidence in drug conspiracy prosecutions. Given the issue taken up by the en banc Court, the discussion focuses on these previous decisions’ variability in addressing challenges to the sufficiency of the evidence. But what may be of equal interest for those presently defending a drug conspiracy prosecution is the thorough discussion of the wide range of facts that can distinguish one drug conspiracy prosecution from another. While the very point of Caraballo-Rodriguez is that each case is different and there is no “specific formula as to what conduct or evidence is sufficient to infer knowledge,” the opinion’s overview of a range of conspiracy prosecutions may help reveal what is missing in any given case — including ones approaching trial now. Reviewing how the government has proved knowledge before might just turn up weak points in cases that still remain for a jury to decide.

Friday, August 09, 2013

Second Rule 404(b) Ruling of the Week: Convictions for Simple Possession of Cocaine Were Not Admissible to Prove Knowledge or Intent to Distribute in a PWID Case

The Third Circuit issued another strongly worded precedential Rule 404(b) opinion today, explaining that the strictures of the rule are often "honored in the breach" by district courts.

In United States v. Terrell Davis, No. 12-1486, the Third Circuit held that the government's barebones evidence that the defendant had twice been convicted of simple possession of cocaine was not admissible at his trial for possession with intent to distribute a kilo of cocaine. The cocaine was in the back seat of the car Davis was riding in. In its motion to admit the simple possession convictions, the government argued a litany of enumerated Rule 404(b) purposes.  On appeal, the government argued the evidence was admissible to prove knowledge that the drugs were in the back of the vehicle and/or Davis's intent to distribute the drugs. The government did not offer any any evidence to prove that the cocaine from Davis's past simple possession convictions was similar in appearance, quantity, or form to what was found in the vehicle on this occasion.

This second Rule 404(b) opinion of the week really sheds light on the second Huddleston prong - relevancy. The Court dug into the simple possession convictions, noting that simply because Davis possessed drugs before in some unknown quantity or form (i.e. powder, or crack, etc.) did not mean that he knew what the compressed powder cocaine was in this case. Similarly, with respect to intent, Davis' prior simple possession of drugs was hardly relevant to his intent to distribute, since far more people use drugs than sell them.

The Third Circuit also highlighted the district court's error at the fourth and final Huddleston prong - the cautionary instruction. Here, the district court did not caution the jurors regarding the limited purpose for the evidence at the time the evidence was presented. It only instructed the jury during the final jury charge.  Furthermore, rather than specifying the limited purpose for which the court admitted the evidence, knowledge, the district court read off the litany of enumerated Rule 404(b) purposes in its instruction.

This opinion highlights the importance of challenging every step of the Huddleston test in defense responses to the government's motions to admit Rule 404(b) evidence.

The opinion is located here:   
http://www2.ca3.uscourts.gov/opinarch/121486p.pdf

Thursday, August 08, 2013

How to Oppose the Government's Rule 404(b) Motion

United States v. Smith, No. 12-1516. Too often, it can seem that Rule 404(b) is applied in a manner that glosses over the government’s obligation to articulate how proffered evidence serves a proper purpose and why it warrants admission despite being prejudicial. In Smith, the Third Circuit offers a reminder that the strictures limiting admissibility under 404(b) are real.

Durrell Smith was charged with assaulting federal officers, possessing a firearm in furtherance of a crime of violence, and possessing a firearm as a convicted felon. He admitted that he had been in possession of a gun at the time of his arrest, but told police he had retrieved it moments before in self defense, fearing attack from whoever was in a car with tinted windows that had just pulled up across the street. In fact, the car was an unmarked police vehicle in which agents were conducting surveillance in an ongoing drug investigation.

At trial, the government sought to introduce evidence that two years earlier, Smith had been observed selling drugs on the same street corner. The government’s theory of admissibility was that this showed motive. Smith, the prosecutor argued, "has a history of selling heroin on this corner," tending to show that he would be inclined to assault officers to protect his "turf." The district court admitted the evidence and Smith was convicted.

In a unanimous opinion by Judge Fuentes, the Court held the evidence’s admission improper under Rule 404(b). The Court agreed that motive was relevant, and even that Smith had placed motive in controversy by claiming self defense. But this alone was not enough. Under Rule 404(b), "the proponent must set forth a chain of logical inferences, no link of which can be the inference that because the defendant committed offenses before, he therefore is more likely to have committed this one." The Court explained that the government’s motive theory embodied such a propensity inference because it required the jury to infer motive by reasoning that, since Smith was selling drugs two years earlier, he must have been doing so again -- and thus have "turf" to protect.

Moreover, the Court faulted the district court for the Rule 403 balancing it was required to conduct as one part of the Rule 404(b) analysis. The district court had stated that the earlier conduct was "significantly prejudicial" but, "given the issues in this case," not "unfairly prejudicial." This "recitation" was not sufficient because it did not address the "diminished probative value" of the prior bad act in light of its dissimilarity from the charged conduct: "one involved drugs and no gun and the other a gun and no drugs."

Smith illustrates the importance of making the government articulate the chain of inferences it wishes to have the jury draw. The government may not simply invoke "motive" or "knowledge" as a mantra. And the defense needs to insist on scrutiny of the proposed chain so that any forbidden propensity "link" is revealed, as well as to ensure that whatever force the government's inferences do carry is not exaggerated relative to prejudicial effect.

Congratulations to Kevin Carlucci and his colleagues in the Defender’s office in Newark.

Tuesday, August 06, 2013

Some Reprieve in Supervised Release: New Limit on Authority to "Stack" Prison Terms for Violation … Plus New Approval of Crack Variance

United States v. Dillon, No. 12-2653.  Held:  (1) District court plainly errs when, for supervised release violation, court imposes consecutive terms of imprisonment on each of several counts if original sentence included only “a term” of supervised release; (2) In fashioning sentence for supervised release violation on part of defendant whose sentence was based on old “100-to-1” crack guideline, and who never got full benefit of Sentencing Commission’s amendments reducing disparate treatment of crack and powder offenses, district court should take account of defendant’s prior service of excessive prison term.

In the Sentencing Reform Act of 1984, Congress created supervised release for the purpose of assisting defendants’ reentry following lengthy periods of imprisonment.  The courts of appeals, however, have commonly held the supervised release regime to provide for extremely harsh punishment.  This development owes in no small part to the rule that, when supervised release is revoked, the sentencing judge may impose a consecutive term of imprisonment for each concurrent term of supervised release included in the original sentence.  See United States v. Dees, 467 F.3d 867 (3d Cir. 2006).  Under that rule, a defendant can be sentenced, for example, to up to seven years in prison for violating supervised release if he was originally convicted of a street-level drug offense with a gun.  This week, in Dillon, the Circuit identifies a limitation that reins in, to some degree, runaway revocation sentencing under this “stacking” rule.

In a unanimous decision authored by Judge Fisher, the Court holds that when the original sentence refers simply to “a term” of supervised release, only one term of post-revocation imprisonment may be imposed.  The limitation applies regardless of whether the judge who imposed the original sentence actually intended to impose multiple concurrent terms, and even where the judge was required to do so as a matter of law.

Percy Dillon (of United States v. Dillon fame, see 130 S. Ct. 2683 (2010)) was convicted on two counts of trafficking in cocaine (both crack and powder) and one count of using a firearm during and in relation to a drug trafficking crime.  Under the mandatory Guidelines, he was sentenced in 1993 to 322 months’ imprisonment.  By law, the district court was required to impose concurrent terms of supervised release on each of the drug counts.  Presumably out of inadvertence, the court instead pronounced a sentence whereby “the defendant shall be placed on supervised release for a term of five years.”

In 2011, following his release, Mr. Dillon was arrested and charged with violating the condition prohibiting him from associating with convicted felons or criminals, because he accepted a ride home from his cousin (his original codefendant) after smelling marijuana in the car.  The court found Mr. Dillon in violation, revoked supervised release, and imposed concurrent terms of imprisonment on each of the original counts.  On appeal, the Third Circuit reversed, holding that where “a district court’s sentence includes ‘a term’ of supervised release, the court may not sentence the defendant to multiple terms of reimprisonment and/or supervised release upon a subsequent revocation of supervised release.”

The Court rejected the government’s arguments that the district court, “despite what it said … actually meant to sentence Dillon to three concurrent terms of supervised release” and, moreover, was “obligated by law” to impose concurrent terms on two of the counts.  Such intentions and legal infirmity aside, “[a] defendant cannot be reimprisoned for violating the conditions of non-existent terms of supervised release.… In 1993, when the District Court sentenced Dillon to ‘a term’ of supervised release, it capped the number of supervised release terms it could revoke at any future proceeding at one.”

Dillon has important implications for the representation of defendants in revocation proceedings.  In determining the maximum authorized length of post-revocation imprisonment, it should not be presumed that the court may stack consecutive terms just because the defendant was originally convicted of multiple counts.  Rather, it is essential to review the original sentence to see whether separate, concurrent terms were specifically imposed on different counts by express pronouncement of the court.  If not, then the defendant may not be sentenced to imprisonment any greater in length than the maximums provided by 18 U.S.C. § 3583(e)(3); the supervising court may not exceed these limits by stacking consecutive terms that add up to more than the statutory maximum.  The Circuit implies that if there exists any exception to this rule, it is only where the judgment’s reference to “a term” reflects a clerical error, i.e., where the judge orally pronounced multiple concurrent terms, but the written judgment does not accurately reflect the sentence pronounced.

In vacating Percy Dillon’s sentence, the Third Circuit further ordered the district court to consider on remand that Dillon had served 28 more months in prison than the present crack guideline would direct.  This inequity was unusually palpable in Mr. Dillon’s case because he had actually been released upon the court’s granting of his Section 3582 motion to reduce sentence pursuant to the Sentencing Commission’s retroactive amendment to the crack guideline, which shrunk his Guidelines range to a period less than the time he had already served.  Putting aside this particularly egregious fact pattern, the same unfairness should be recognized whenever the defendant’s prison term concluded before sentence could be reduced pursuant to the Commission’s repeat amendments (circa 2007 and 2011) reducing the disparity embodied in the crack guideline.  Thus, at least where the defendant would have been eligible for a Section 3582 reduction, a supervising court in a crack case should always consider making dispensation for the fact that the defendant previously served what, it is now clear, was an excessive prison term.  For the Third Circuit’s most recent guidance concerning eligibility for Section 3582 reductions, see United States v. Flemming, —F.3d— , 2013 WL 3779977 (3d Cir. July 22, 2013) (career offenders), and United States v. Savani, —F.3d—, 2013 WL 2462941 (3d Cir. June 10, 2013) (substantial assistance departures).

Congratulations to Renee Pietropaolo and her colleagues at the Defender’s office in the Western District of Pennsylvania on a great win.