Tuesday, August 26, 2014

WARNING: Cooperating defendant whose plea agreement includes appellate waiver and who files an appeal is in breach of plea agreement and subject to de novo resentencing where Government can withdraw U.S.S.G. §5K1.1 motion

United States v. Erwin, Appeal No. 13-3407 (3d Cir. Aug. 26, 2014)

Defendant Erwin plead guilty, pursuant to a cooperating plea agreement, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. His plea agreement included a waiver of right to appeal his sentence if it was within or below the advisory Guidelines range resulting from a total offense level 39. In exchange for Erwin's plea, the government agreed not to bring further criminal charges against Erwin in connection with the criminal conspiracy, and it also agreed to seek a downward departure under U.S.S.G. §5K1.1.

At sentencing, the district court agreed with the parties and the PSR that Erwin's total offense level was 39. With an offense level 39 and Criminal History Category I, Erwin's initial Guidelines range was 262 to 327 months. This range was, however, capped at 240 months due to the statutory maximum for the offense of conviction. The government moved for a five-level downward departure under §5K1.1, requesting that the court depart from offense level 39 to offense level 34, as opposed to departing from the statutory maximum of 240 months, and sentence Erwin within the resulting range (151 to 188 months). Erwin did not object. The court granted the government's motion and sentenced Erwin to 188 months imprisonment.

Erwin appealed, arguing that the district court's use of offense level 39 as its starting point for the downward departure was error because, when combined with criminal history category I, offense level 39 yielded an advisory Guidelines range above the statutory maximum. The government did not cross-appeal, but argued in response to Erwin's appeal that Erwin's sentence should be vacated and remanded for de novo resentencing where, in light of Erwin's breach of the appellate waiver, the government would seek a "modest" increase in Erwin's sentence.

The Third Circuit began by considering the nature and scope of Erwin's appellate waiver. It concluded that Erwin's appeal was within the scope of the waiver, the waiver was knowingly and voluntarily executed, and Erwin failed to raise any meritorious grounds for circumventing the waiver. The Court noted that its ordinary procedure in such a situation would be to enforce the waiver by dismissing the defendant's appeal, thereby affirming the defendant's sentence. Here, however, the government asked the Court to vacate Erwin's sentence so that it could pursue the remedies specified in the breach provision of the plea agreement, i.e., bring additional criminal charges or withdraw its §5K1.1. motion. The Court found that Erwin's decision to appeal despite waiving that right in his plea agreement resulted in a clear breach of the terms of the agreement. The Court further concluded that the appropriate remedy for Erwin's post-sentencing breach of the plea agreement was specific performance, i.e., de novo resentencing with the government relieved of its obligation to seek a downward departure.

In rendering its opinion, the Third Circuit also decided two procedural questions of first impression. First, the Court concluded that cross-appeal rule did not apply and consequently did not bar the government from seeking de novo resentencing. Second, the Court named its source of authority to grant a de novo resentencing in this case as 28 U.S.C. § 2106, which permits the Court to modify, vacate, set aside, or reverse any judgment lawfully brought before it for review and remand the cause for further proceedings.

Sunday, August 24, 2014

Circuit says that automobile exception is so expansive that it “essentially has obviated” the need for a search warrant as long as there is probable cause to believe that the car contains evidence of a crime.

United States v. Donahue, 13-4767, 2014 WL 4115949 (August 22, 2014)

After sentencing, defendant missed his turn in date in New Jersey.  He was found in New Mexico in his son’s Ford Mustang.  Over the course of five days, agents from two different agencies searched the car multiple times and eventually found a firearm magazine clip under the driver’s seat and a gun in a bag that was in the car – all without getting a warrant.  District court suppressed the evidence saying that there was no probable cause to search the car.  The Circuit reversed.
            Although there were numerous arguments the government could have raised, it only argued on appeal that probable cause existed and therefore no warrant was necessary.  Circuit agreed, stating that a search is justified whenever there is PC that evidence of a crime, not just contraband, is in the car – even if that evidence may otherwise seem innocuous.  Also, the continuing or completed nature of a crime is irrelevant to the PC analysis in this case.  It didn’t matter that defendant had already failed to report to prison and that he had already been arrested – there was still PC that evidence of his deliberate failure to report (such as false IDs) would be in the car.  Finally, it didn’t matter that the first agent who searched the car wouldn’t have done so of his own accord and only performed the search upon the request of another agent.  Probable cause is an objective inquiry and does not rise and fall on the subjective belief of the searching officer.
            More important than its probable cause conclusion were two statements by the Circuit:
First, if the search of the car is justified by probable cause, then law enforcement can search every part of the car including any contents that may conceal the object of the search (?!?!).  Because there was probable cause to search this car, the agents were allowed to go into any bag or suitcase inside the car. 
Second, probable cause does not dissipate after the car is immobilized because there is no exigency component to the automobile exception (again--?!?!).  Therefore, it did not matter that the government had the car for several days and could have easily gotten a warrant.  On top of that, the government was allowed to search the car as many times as it wanted. 
            Bottom line, as long as law enforcement had PC to search the car when they seized it, they could search everything inside it, for as long as they wanted to, as many times as they wanted to.
            There are some limitations (barely).  (1)  The Circuit deliberately stated that this case did not concern a situation in which the car is NOT in continuous control of law enforcement.  (2) There must be probable cause that contraband and/or affirmative evidence of a crime will be found.  The Circuit rejected the government’s argument that a search is permissible if there is PC that a search would reveal evidence refuting a potential affirmative defense.  (3)  Even though prison inmates and escaped prisoners generally have no legitimate expectations of privacy, the Circuit deliberately did not address whether a fugitive – one who failed to report to prison -- has a legitimate expectation of privacy.    

Conspiracy to distribute cocaine is a lesser included offense of conspiracy to distribute 5 kilos or more of cocaine. Therefore, trial court did not err in refusing to submit the question of weight to the jury until after it had returned a guilty verdict on the conspiracy to distribute.

United States v. Freeman, 09-2166, 10-4224, 2014 WL 4056553 (August 18, 2014)

Defendants Freeman and Mark were charged with a count of conspiracy to distribute 5 kilos or more of cocaine.  Conspiracy to distribute over 5 kilos of coke carries a higher statutory maximum sentence than conspiracy to distribute an unspecified amount of coke.  Therefore, under Apprendi, it is clear that the drug quantity was an element of the conspiracy count that was charged in the indictment. 
However, the trial court refused a defense requested jury instruction that to convict on the conspiracy count, the govt had to prove over five kilos of cocaine were involved in the conspiracy.  Instead, the trial court instructed that the government need only prove that a measurable amount of cocaine was involved in the conspiracy.  After the jury returned a guilty verdict on the conspiracy count, the trial court gave them a post-verdict question on whether the conspiracy involved 5 kilos or more of cocaine.  The jury was unable to reach a unanimous answer on the post-verdict question.
Third Circuit held that conspiracy to distribute under 28 USC § 841(a)(1) was a lesser included offense of conspiracy to district 5 kilos or more of coke under § 841(b)(1)(A)(ii)(III).  Therefore, under Fed.R.Crim.Pro. 31(c) – which allows defendants to be convicted of lesser included offenses of the offenses actually charged – the judge was allowed to charge on the lesser included offense.

Other holdings of interest in this case:
(1)  Judicial fact finding for purposes of calculating guidelines and imposing a sentence within the statutorily prescribed range does not violate Alleyne.  Trial court was allowed to make findings regarding the amount of drugs involved even though the jury was unable to reach a conclusion.  No indication on the record that the trial court believed any mandatory minimum applied and the ultimate sentence was below the statutory max. 
(2)  While the rules of evidence do not apply at sentencing, information used as a basis for sentencing under the guidelines must meet the “sufficient indicia of reliability standard.”  Such indicia of reliability may consist of the level of facts and details, corroboration or consistency with other evidence or testimony, or the opportunity for cross examination.  In the sentencing of one defendant, the trial court sufficiently explained the basis of its finding regarding the amount of drugs involved in the conspiracy.  However, in another defendant's sentencing, the court failed to sufficiently explain its finding regarding the amount of drugs.  Defense had objected to the drug amounts used to calculate the guidelines and remand was necessary for the court to give an adequate explanation of its acceptance or rejection of the defense argument.
(3)  Defendant's sixth Amendment right of confrontation was not violated and trial court did not abuse its discretion in preventing defense counsel from asking a cooperating witness whether he was selling drugs for anyone else “in the entire universe.”  The witness had already admitted that he had disclosed his other illegal affairs to law enforcement and the court would have allowed defense counsel to question about specific acts that he believed the witness failed to disclose.  Thus, defense counsel had adequate opportunity to cross-examine the witness.
(4)  Evidence was sufficient to show one overarching conspiracy (as charged in the indictment) rather than several individual conspiracies.  Therefore, no variance between the indictment and the evidence at trial and the trial court did not err in denying the R. 29.

Defendant who inherited over $400K did not violate his supervised release when he went on a spending spree instead of paying his restitution. Regardless of any bad faith on defendant’s part, district court failed to identify a specific condition that had been violated.


 
Bagdy was convicted of wire fraud (of course), sentenced to 36 months’ imprisonment plus three years’ supervised release, and ordered to pay over $500K in restitution.  One condition of supervised release was that Bagdy pay at least 10% of his monthly income toward restitution.  A wealthy aunt (don’t we wish we all had one) died and left him an inheritance of over $400K.  Bagdy told his probation officer about the inheritance and paid 10% of the inheritance for purposes of restitution.  The government filed a motion to modify the restitution order.  A hearing on that motion was then continued several times while Bagdy and the government tried to negotiate an amount that he would pay towards restitution.  Although Bagdy did pay an additional $60K towards restitution, he ultimately spent all but $52K of the inheritance (including $5,800 on flowers).

The government asked the district court to find Bagdy in violation of his supervised release because he had acted in bad faith by spending his inheritance rather than paying off his restitution or preserving the inheritance pending negotiations with the govt.  District court found him in violation and sentenced him to 6 months’ imprisonment.

Although the Circuit agreed that Bagdy’s conduct was “reprehensible,” the Circuit reversed because neither the govt nor district court identified a specific condition of supervised release that Bagdy violated.  He complied with the restitution condition when he paid 10% of the inheritance towards restitution.  Reversed and remanded so that the district court can find another condition of supervised release that Bagdy actually did violate … like honestly making monthly financial reports, including reports about his expenditures, to his probation officer.