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Showing posts from 2014

Passenger has no expectation of privacy in a car that isn’t his and in which he is not present when car is seized and searched. For a 924(c) count, indictment does not necessarily have to allege that a gun was possessed “in furtherance of” a crime of violence. Even after Alleyne, prior convictions that trigger mandatory minimums do not have to be proven to a jury beyond a reasonable doubt. Within guideline sentence did not violate 8th Amendment.

United States v.Burnett, 14-1288, 2014 WL 6463173 (3d Cir. Dec. 2, 2014).
After an unsuccessful motion to suppress, Burnett went to trial and was convicted of robbing a jewelry store at gunpoint.At sentencing, the district court found that ACCA applied and that the career offender guidelines applied and sentenced Burnett to a total of 288 months, a within guideline sentence.The Third Circuit addressed several issues on appeal:

·Burnett’s motion to suppress was properly denied because Burnett lacked standing to challenge the search.Burnett was the passenger in a getaway car.He and the driver abandoned the car on the street and fled.The police found the car, got a search warrant, and found evidence of the robbery in the car.The Court held that Burnett, who did not own the car and who left it before the police seized it, had no standing to challenge the search of the car because he had no privacy interest in the car.REMEMBER, under Brendlin v. California, 551 US 249 (2007), passengers of …

Delay in presentment in pursuit of cooperation was unreasonable. Defendant's motion to suppress confession should have been granted.

In United States v. Thompson, 13-1874, the Third Circuit Court of Appeals affirmed the district court's denial of Mr. Thompson's motion to suppress fruits of an unlawful search, but reversed the suppression ruling regarding his statements.

Thompson was the subject of a traffic stop in Texas.  During the stop officers located a quantity of marijuana and cocaine.  He was charged locally with the marijuana and posted bond.  He was not charged locally with the cocaine, nor was he informed that law enforcement discovered it.  Weeks later, the DEA believing Thompson to be involved with a drug trafficking group known as the "Cali Connect" executed search warrants at residences believed to be associated with that group in various states, including Pennsylvania, Indiana, and California.  Agents searched Thompson's home in California and discovered a quantity of cocaine.  He was subsequently taken the DEA head-quarter's which was an hour and a half drive.  During the d…

Exclusionary rule does not apply when agents executing an otherwise valid search warrant fail to provide to the homeowner a list of items sought

U.S. v. Franz, No. 13-2406, 2014 WL 5565457 (3dCir. Nov. 4, 2014)

A police officer executing an otherwise valid search warrant failed to provide the list of items sought to the homeowner.Although it acknowledged that the warrant, as presented to the homeowner, was constitutionally deficient, the Court examined the totality of the circumstances. It considered the officer's conduct in obtaining and executing the warrant, and what the officer knew or should have known.The rookie officer consulted with federal prosecutors and explained to the homeowner what items the warrant sought, but mistakenly believed that an order sealing the warrant prohibited him from providing the list of items sought to the homeowner. Under these circumstances, application of the exclusionary rule would have little deterrent effect since the officer’s conduct was not deliberate, reckless, or grossly negligent. 
During trial, the court allowed the prosecutor to show graphic images of children being sexually a…

Circuit Court grants habeas petition, finding trial counsel provided ineffective assistance of counsel regarding the availability of safety valve reduction and noting that the District Court’s statements during the plea colloquy did not alleviate counsel’s error.

United States v. Bui, No. 11-3795, 2014 WL 5315061 (October 20, 2014)

Dung Bui was indicted on the following four drug counts: (1) conspiracy to manufacture more than 1,000 marijuana plants, in violation of 21 U.S.C. § 846; (2) manufacturing and aiding and abetting the manufacturing of more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) using a house to manufacture and distribute marijuana, in violation of 21 U.S.C. § 856(a)(1); and (4) manufacturing and distributing marijuana "within 1,000 feet of the real property comprising Hampden Park, Reading, Pennsylvania, an athletic field owned and operated by the Reading School District," in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.

Bui pled guilty to counts one and four as part of a plea agreement because his counsel told him and his family that he was safety valve eligible and thus could get a reduced sentence. His counsel filed a §3553(f) motion for a sentence reduction, but l…

Good Faith Exception to Fourth Amendment Exclusionary Rule Applies to Pre-Jones GPS Surveillance

In United States v. Katzin, No. 12-2548, 2014 WL4851779 (3d Cir., Oct. 1, 2014), Defendants challenged the warrantless tracking by FBI agents via a GPS device. The agents installed the device onto Defendants’ van in December, 2010, after Defendants had been identified as suspects in a string of pharmacy burglaries. The GPS surveillance was conducted over the course of two days. Subsequently, the U.S. Supreme Court rendered its decision in United States v. Jones, 132 S.Ct. 945 (2012), in which the Court ruled that GPS installation and surveillance constituted a search that is subject to the warrant requirements of the Fourth Amendment. Citing Jones, the trial court in Katzin suppressed the evidence gathered via GPS. A panel of the Third Circuit affirmed the lower court’s ruling that a warrant was required in this instance. The panel also held that the good faith exception to the Fourth Amendment=s exclusionary rule did not apply, thereby upholding the district court’s suppression ord…

Once A Suspect is Arrested and the Scene Has Been Secured, The Exigent Circumstances Have Passed and The Fourth Amendment Requirement for a Search Warrant Reattaches.

The existence of exigent circumstances is one of the few exceptions to the Fourth Amendment requirement for a search warrant prior to any search or seizure.However, once the exigency is no longer present, a warrant is needed to continue the search.In UnitedStates v. Mallory, (13-2025), the Third Circuit considered what factors demonstrate that the exigency has subsided.
In the early hours of the morning, officers were responding to a dispatch call concerning a group of men standing outside a four-story home; the group allegedly included a hooded individual armed with a gun.The home belonged to Kamaal Mallory’s stepmother.While outside of the house, Mallory was speaking with a police officer when they noticed a weapon in his waistband.Appellant ran into the house and shut the door; officers pursued.Officers cleared the home and the family members were ordered to wait outside under supervision of an officer.The police then searched the home for Mallory and the weapon.He was eventually fo…

Convictions Under Pennsylvania’s Terroristic Threat Statute Are not Crimes of Violence.

Applying the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), the Third Circuit held in United States v. Brown (13-4442) that convictions for making terroristic threats (18 Pa. Cons. Stat. §2706) were not categorically crimes of violence for purposes of the career offender sentence enhancement (U.S.S.G. § 4B1.1).
While incarcerated on a separate state offense, Appellant Gregory Garett Brown mailed a letter threatening both a federal magistrate judge and a federal district court judge.He pled guilty to mailing threatening communications in violation of 18 U.S.C. §876(c).The PSR recommended Brown be sentenced as a career offender under §4B1.1(a), which had the effect of doubling his guideline range from 30 to 37 months, up to 77 to 96 months. The PSR identified four prior Pennsylvania state convictions that allegedly triggered the enhancement including: one conviction for aggravated assault, one conviction for retaliating against a judicial officer, and two convictions for m…

Rare case where Court, on direct appeal, remands for evidentiary hearing on IAC claim

(Rendell, Fuentes, Greenaway, C.J.s)

In Gov’t of V.I. v Vanterpool, No. 13-4400, 2014 WL 4473960, Vanterpool raised First Amendment challenges (facially vague, as applied, and overbreadth) to his convictions for harassment by telephone and written communication.His attorney did not raise any First Amendment challenge to a statute that criminalizes “writing in a manner likely to harass or alarm.” The Court determined if the statute was unconstitutional, the District Court would have committed error in applying it, but it would only be reversible under plain error.The Court had never ruled on whether a constitutional challenge can survive plain error review but found other Circuit cases “persuasive” that when a constitutional question is far from being “clear under current law,” it cannot survive plain error. (However, the Court would not rule out that a constitutional challenge could ever win under plain error review).Nonetheless, here, the Court took the rare step of remanding the case…

For a Conviction of Distribution of Child Pornography Under 18 U.S.C. §2252, the Government Must Prove Images Were Downloaded or Obtained by Another Person.

The Third Circuit held in United States v. Husmann, (No. 13-2688), that in a prosecution for distribution of child pornography, the Government must establish that the illegal images were actually downloaded or obtained by a third party.The act of uploading images and making them available on a shared computer file or a peer-to-peer network is insufficient to justify a conviction under 18 U.S.C. §2252(a)(2).In reaching this decision, the appellate court noted that these types of computer sharing programs allow individuals to place materials in shared folders, but the transfer of materials is not automatic.Instead, another user must download the materials to view them.It is the actual downloading of the images that the Government must establish as part of its case.
A central part of the opinion was the discussion of what definition to apply to the word “distribute” within the statutory context.Ultimately, the circuit court adopted the “ordinary meaning of the word “distribute” and determ…

District Court’s failure to rule on a motion constitutes an implicit denial of that motion. Significant pre-arrest delay does not always lead to a speedy trial violation. Delays attributable to co-defendants’ motions can be considered against defendant in speedy trial claims.

United States v. Craig Claxton, Appeal No. 12-3933 (3d Cir. August 18, 2014)
Claxton and others were charged with a conspiracy involving the transportation of cocaine between the Virgin Islands (USVI) and the US mainland.The first trial in the case started without Claxton because he could not be found.Two defendants were convicted and a mistrial was declared for the rest.Two other defendants took an appeal prior to retrial.While that appeal was pending, Claxton was arrested.Upon retrial, which now included Claxton, he was convicted.Post-verdict, the district court granted Claxton’s JOA motion, but failed to rule on Claxton’s R.33 motion for a new trial.The Third Circuit reversed the grant of JOA and remanded.Claxton moved for safety-valve relief at sentencing.Judge denied and sentenced Claxton to 120 months.This is the second appeal in the case (for Claxton, at least).Court made several rulings (not all of which are included here) in affirming the conviction and sentence: 1.No Waiver
T…

Determining the “most appropriate” Sentencing Guideline for convictions

In United States v. Boney, Nos. 13-3087, 3199 (3d Cir. 9/15/14), the Third Circuit heard cross-appeals from following a sentence imposed as a result of a jury’s verdict of guilt for distributing more than 500 g of cocaine, witness intimidation, and solicitation to intimidate a witness. The Defendant was first arrested after he arranged to buy large quantities of cocaine from someone who turned out to be an informant. Following his arrest, the Defendant agreed to cooperate with the Government, but disenchantment with the DEA led him to seek out a hit man to kill the informant who caused his arrest. The Defendant had a few meetings with the hit man, and told him that if he could not kill the informant, to kill his son.Alas, the Defendant had not improved his ability to assess potential co-conspirators— the hit man too was a Government informant— and the Defendant was arrested again, this time on the witness intimidation charges. The Defendant was sentenced to 220 months, and appealed hi…