Skip to main content

Posts

Showing posts from March, 2014

Defendant eligible for sentence reduction when mandatory minimum not applied at original sentencing

In United States v. Ortiz-Vega, 12-1482 (3d Cir. March 12, 2014), the Court found that where a defendant was subject to a mandatory minimum sentence but that minimum was not actually applied, he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on retroactive changes to the guidelines. Ortiz-Vega’s crack cocaine offense called for a guideline range of 97 to 121 months but the count of conviction at that time carried a mandatory minimum 120 months. 21 U.S.C. §841(b)(1)(A)(iii). Nonetheless, the court sentenced Ortiz-Vega to 108 months and the government did not challenge the sentence. When Ortiz-Vega moved for resentencing, arguing that the new range would be 78-97 months, the District Court found a reduction would not be consistent with the Commission’s policy statements (Step Two), relying on United States v. Doe, 564 F.3d 305 (3d Cir. 2009) to treat the mandatory minimum as the “applicable guideline range,” whether or not the mandatory minimum had been appl…

Incomplete counterfeit bills count towards face value calculation under U.S.S.G. § 2B5.1(b)(1)

In United States v. Woronwicz, No. 12-4320 (3d Cir. March 12,2012), the Court held that incomplete counterfeit bills should be included in face value calculation under U.S.S.G. § 2B5.1(b)(1). Woronwicz was found with over $207,000 in counterfeit bills: 90% were completed on only one side, and $20,000 were completed on both sides. He pled guilty to counterfeiting in violation of 18 U.S.C. § 474. While Note 3 to § 2B5.1(b) excepts “items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny,” the reach of Note 3 is limited to subsection (b)(2). Incomplete bills, like bills of unpassable quality, all count towards (b)(1). Thus, the 12-level enhancement for counterfeit currency exceeding $200,000 was correctly applied.

In context of Grand Jury investigation, District Court followed and correctly applied proper standard to determine whether and how to conduct in camera examination of grand jury target’s former attorney to consider whether attorney’s testimony before grand jury could be compelled under the crime-fraud exception to attorney-client privilege, and did not abuse its discretion in concluding that there was sufficient evidence for the crime-fraud exception to apply.

In In Re: Grand Jury Subpoena, No. 13-1237 (3d Cir. Feb. 12, 2014), a grand jury, investigating alleged violations of the Foreign Corrupt Practices Act, served a subpoena on the former attorney of a target of the investigation, and the Government moved to enforce the subpoena and compel the attorney’s testimony based on the crime-fraud exception to the attorney-client privilege. The target sought to quash the subpoena by asserting the attorney-client privilege and work-product protection. The District Court, after questioning the attorney in camera, with only the attorney’s counsel present, found a reasonable basis to suspect that the target intended to commit a crime when it consulted the attorney and could have used the information gleaned from the consultation in furtherance of the crime. The court concluded that the crime-fraud exception applied and issued an order compelling the attorney to testify before the grand jury.

The target appealed, challenging the standard that the D…

Appellate Waiver applies to appeal of term of imprisonment imposed for supervised release violation to be served consecutively.

In United States v. Banks, No. 13-2094 (3d Cir. Feb. 12, 2014), defendant Banks — while on supervised release for a bank fraud conviction — was charged with and pleaded guilty to conspiracy to commit bank fraud and to violating the conditions of his supervised release, pursuant to a plea agreement that included an appellate waiver. In sentencing, Banks requested a concurrent term of imprisonment for the supervised release violation. The District Court imposed a sentence of 18 months for the bank fraud and 33 months for the supervised release violation, to be served consecutively. On appeal, Banks argued that his consecutive sentence was not encompassed in the appellate waiver.

The Third Circuit, strictly construing the language of the waiver, held that the plea agreement language that waived "any appeal . . . which challenges the sentence imposed" did not suggest an intention to except consecutive sentencing from the waiver.

Anticipatory search warrant issued by Pennsylvania Magisterial District Judge valid despite provisions of Fed. R. Crim. P. 41(b), because search was a state search in nature, and postal inspector’s four-day delay in obtaining search warrant not unreasonable under totality of the circumstances.

In United States v. Golson, No. 13-1416 (3d Cir. Feb. 11, 2014), during the course of a drug trafficking investigation, postal inspectors in Phoenix, Arizona intercepted a parcel with a fictitious return address that was addressed to a residence near Harrisburg, Pa. Postal Inspectors in Harrisburg received the package on a Thursday — that Monday, the Government obtained a search warrant from a federal magistrate judge; when opened, the package contained 20 pounds of marijuana.

The Cumberland County Drug Task Force decided to carry out a controlled delivery to the residence, and obtained an anticipatory search warrant signed by a Pennsylvania Magisterial District Judge. A postal inspector disguised as a carrier delivered the package, which someone in the house accepted and signed for on behalf of defendant (using a fictitious name). When the indicator equipment in the package alerted that it had been opened, law enforcement officers entered the home, took the residents into custody, an…

In 2254 petition, cautionary instruction unrang the bell.

In Glenn v. Wynder, the Court affirmed the district court’s denial of Glenn’s 2254 petition.

First, Glenn claimed that his due process rights were violated when the trial court denied his motion for mistrial after a supposed eyewitness proffered wildly contradictory testimony that was based on hearsay. The eyewitness was drunk and high at the time of the shooting and gave inconsistent testimony as to whether she saw Glenn shoot the decedent or whether she had just heard that Glenn had shot the decedent. She then said she didn’t really see the shooting itself, but she saw Glenn at the scene of the shooting and she was scared for the life of someone who really knew what happened. The trial court struck the testimony and told the jury to disregard it. Glenn argued that the trial court’s cautionary instruction could not cure the taint of the testimony and that a mistrial was the only appropriate remedy.

The Third Circuit found that, because a jury is presumed to follow instruct…

In dirty cop case, Circuit continues deferring to jury on conspiracy convictions.

In United States v. John-Baptiste, three Virgin Islands cops were tried for RICO conspiracy and several related counts stemming from acts of extortion, kidnaping, bribes and drug trafficking. Jury convicted. District court denied defendants’ motion for new trial, but granted JOA on some counts. Defendants and government appealed.

Arguably of widest interest is the Circuit’s reversal of the district court’s JOA on two conspiracy counts: conspiracy to commit extortion and conspiracy to traffic drugs. On the conspiracy to commit extortion count, evidence showed that one cop was present but silent and inactive in the cop car while his partner bragged (to an extortion victim) about taking money for 19 years. Defense argued mere presence and the district court agreed noting that there was no evidence of an explicit agreement between the two cops as to this act of extortion. Third Circuit reversed saying, "The jury could certainly assume that if one officer boasts of engaging in…

Defendant subject to a protection order that barred him from residence lacked standing to challenge search of the residence and his belongings within residence

In United States v. Cortez-Dutrieville, Docket No. 13-2266, the Third Circuit found that a defendant's "wrongful" presence in a residence vitiated any expectation of privacy in the residence and, therefore, defendant lacked standing to pursue a motion to suppress evidence recovered during a search of the residence. 
After a package of heroin was intercepted from the mail by US Customs and Border Protection Officers, law enforcement agents arranged a controlled delivery of the package to the home of Portia Newell. Newell was the mother of defendant Antoine Cortez-Dutrieville's ("Dutrieville") child. The agents also obtained an anticipatory search warrant for the residence. During the search of the home, agents discovered Dutrieville, whom they took into custody, as well as the heroin, digital scales and other drug paraphernalia. At the time of the controlled delivery, Dutrieville was staying in the residence with Newell's consent, but was the subject of …