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Showing posts from July, 2014

Circuit holds that the force required to support an abduction enhancement under § 2B3.1(b)(4)(A) is determined by an objective standard, and that a temporary taking of property may justify application of the loss enhancement under § 2B3.1(b)(7)(B).

United Statesv. Thomas Edward Smith, Appeal No. 13-4422, 2014 WL 3582897 (July 10, 2014)
(Rendell, Chagares, Jordan, J.)
Thomas Smith pulled his car off of the road, pretending to be disabled, and flagged down the manager of the local Citizens & Northern Bank, Kimberlea Whiting, who was driving home from the bank for lunch.Smith’s motive was revenge:He blamed the bank for initiating foreclosure proceedings on his house.Smith drew a gun, which was stolen, and ordered Whiting to drive to the bank, saying she and another bank employee were going to pay for taking his house.Once at the bank, Smith directed Whiting to drive to the rear parking lot.Whiting, fearing he would shoot her there, continued past the lot. She ultimately slowed her Ford Explorer and rolled out of it and onto the street. When the Explorer came to a stop, Smith abandoned it and fled on foot.Smith was convicted of carjacking, brandishing a firearm during a crime of violence, and possessing a stolen firearm after tr…

The Circuit explains that Fed.R.Evid. Rule 404(b) is “a rule of general exclusion” and reiterates the importance of a methodical approach by the proponent of prior act evidence and a carefully reasoned ruling by the trial judge.

United Statesv. Caldwell, Appeal No. 13-1918, 2014 WL 3674684 (July 24, 2014) (Smith, Vanaskie, Shwartz, J.)
The Circuit holds that in a trial for being a felon-in-possession of a firearm, 18 U.S.C. § 922(g), based on a theory of actual possession, the district court erred by admitting under Federal Rule of Evidence 404(b), evidence of the defendant’s prior convictions for unlawful weapons possession; it vacates the judgment and remands.In a scholarly 53-page opinion, which is a must read for the defense bar, Judge Smith discusses the evolution of the prior bad acts rule from its English common law roots to the adoption of Rule of Rule 404(b).
The Circuit initially explained that when the Court calls Rule 404(b) a rule of inclusion, not exclusion, it “merely reiterates the drafters’ decision to not restrict the non-propensity uses of evidence.The Rule provides prior act evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, know…

En banc Court adopts “new rule” requiring a defendant to raise any procedural objection to a sentence after sentence is imposed

United States v. Flores-Mejia, No. 12-3149, 2014 WL 3450938 (July 16, 2014)

Overruling United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), the en banc Court held that procedural error at sentencing is preserved only if a party objects after sentence is imposed or at the time that the procedural error becomes evident.The Court explained that it was adopting this new rule for several reasons:
(1)Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced;
(2)Objecting to a procedural error after sentence is pronounced will promote judicial efficiency because it allows a sentencing court to correct or avoid a mistake;
(3)Requiring that a procedural objection be made at the time sentence is pronounced prevents “sandbagging” of the court by a defendant who raises an error on appeal while remaining silent at the sentencing hearing.
In Flores-Mejia’s case, defense counsel raised several grounds for departures and variances…

Circuit holds for the first time that the government can have a sufficiently important interest in forcibly medicating a defendant to restore his mental capacity and render him fit to proceed with sentencing

United States v. Cruz, No. 13-4378, 2014 WL 3360689 (July 10, 2014)

A jury convicted Cruz of two counts of threatening a federal law enforcement officer.  Prior to sentencing, the government raised concern about Cruz’s competency and moved for a determination on the matter.  The motion was granted and a BOP forensic psychologist concluded that Cruz suffered from schizophrenic disorder, bipolar type.  A second competency evaluation determined that Cruz would remain mentally incompetent, but that his competency could be restored through "a period of forced medication." The government sought an order authorizing BOP to forcibly medicate Cruz.   The district granted a hearing, pursuant to Sell v. United States, and subsequently ordered that Cruz be forcibly medicated.  Cruz moved to stay the order, which was granted, and appealed. 

The Third Circuit conducted a plain error review because Cruz raised his arguments for the first time on appeal.  Cruz failed to file an oppos…

Circuit holds for the first time that § 3553(a) factors must be considered in determining length of imprisonment for mandatory revocation of supervised release under § 3583(g)

United States v. Thornhill, Nos. 13-2876, 13-2877, 13-2878, 2014 WL 3056536 (July 8, 2014)



After six petitions to revoke her term of supervised release based on positive drug tests and two additional convictions, the district court revoked Thornhill’s supervised release under 18 U.S.C. § 3583(g) and sentenced her to 36 months of imprisonment. On appeal, Thornhill argued that the district court failed to articulate whether it considered the sentencing factors under § 3553(a) and failed to acknowledge her mitigation arguments. The government argued that the district court was not required to, but did consider some of the 3553(a) factors.



In this matter of first impression, the Third Circuit held that 3553(a) factors must be considered in mandatory revocation under 3583(g). The Court explained that statutory interpretation is not limited to the statutory language alone – the "structure of the section in which the key language is found and the design of the statute as a whole and i…

Circuit finds no prejudice in 2255 claim of failure to cross-examine and failure to object to indictment on Double Jeopardy grounds, and broadens the Double Jeopardy analysis of the overt act factor for conspiracy charges.

United States v. Travillion, No. 12-4184 (July 7, 2014)

The Third Circuit affirmed the district court’s denial of Travillion’s 2255 motion for ineffective assistance, finding no prejudice. Travillion was convicted on three counts -- conspiracy to distribute crack cocaine, conspiracy to distribute powder cocaine, and possession with intent to distribute crack cocaine, all in violation of 21 USC §§ 846, 841(a)(1) and (b)(1)(A)(iii). His defense at trial was that he was not a member of the conspiracy and that the drug involved was heroin, not crack. Michael Good, Travillion’s main supplier and government witness, testified that on the wiretapped calls with Travillion, they negotiated the price of crack. Travillion’s attorney cross-examined Good on several issues, including his addiction history and his cooperation with the government for a reduced sentence.

In his 2255 claim, Travillion argued that his trial counsel was ineffective for (1) failing to properly cross-exam Good with h…

Supreme Court grants certiorari to resolve intent question in threat cases under 18 U.S.C. § 875(c)

On June 16, 2014, the United States Supreme Court granted certiorari inElonis v. United States, No. 13-983 (Third Circuit opinion here). Anthony Elonis was convicted after trial of posting threatening communications on Facebook, in violation of 18 U.S.C. § 875(c). Applying an objective intent standard, the Third Circuit upheld Elonis's conviction, finding the evidence sufficient to support the jury's conclusion that the Facebook statements constituted true threats.

The Supreme Court granted certiorari to resolve a circuit split on the intent issue. The question presented by Elonis's cert petition is:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the…

Alleyne v. United States Not Retroactive to Cases on Collateral Review

In United States v. Reyes, No. 13-3537, 2014 WL 2747216 (3d Cir., June 18, 2014), Defendant was convicted of armed Hobbs Act robbery and sentenced to 180 months in prison. His conviction and sentence were upheld on appeal. Defendant subsequently filed a habeas petition under 28 U.S.C. § 2255. Prior to the court’s ruling on the habeas petition, Defendant requested permission to amend it in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), in which the Supreme Court ruled that any facts that raise the range of penalties to which a defendant is exposed are elements of the offense and must be found beyond reasonable doubt. The court denied Defendant’s request, ruling that Alleyne did not apply retroactively to cases that were on collateral review. Nonetheless, the court issued Defendant a certificate of appealability on that issue. During the briefing on Defendant’s appeal, the Third Circuit issued an opinion in United States v. Winkleman, et al., 746 F.3d 134 (3d Cir. 2014), rul…

Enhancement under U.S.S.G. § 2J1.2(b)(2) for Substantial Interference with Administration of Justice Applies for Destruction of Hard Drive during Child Porn Investigation

In United States v. Waterman, No. 13-3825, 2014 WL 2724131 (3d Cir., June 17, 2014), Defendant challenged the sentence imposed for his conviction for destruction of records, in violation of 18 U.S.C. § 1519. Defendant, a police officer, destroyed a computer hard drive during a FBI investigation into his alleged possession of child pornography. Defendant initiated the investigation by informing his supervisor that he had in fact viewed child pornography on his personal home computer. Nonetheless, two years after his disclosure, Defendant attempted to destroy one of his personal computers. The court noted that Defendant actually destroyed the circuit board of the computer, but not the data platters which contained the data on the hard drive. Experts testified that the damage to the circuit board was extensive, and consequently, the data was irretrievable. During sentencing, the court adopted the probation office’s recommendation to apply the three-level enhancement under U.S.S.G. § 2J1…