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Showing posts from September, 2014

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…

Proper and improper application of cross-referenced Sentencing Guidelines and consequential enhancements

United States v. Solomon, No 13-3108 (3d Cir., 9/15/14), concerns the application of two Sentencing Guidelines sections, §§ 2C1.1(c)(1) (“Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions”) and 3B1.3 (“Abuse of Position of Trust or Use of Special Skill”).The Court affirmed the District Court’s application of the first, but overturned its application of the second.
The defendant was a police chief who accepted money from a confidential informant to provide protection for a drug sale. After that transaction, the defendant agreed to provide protection for future drug transactions, and also to sell some law-enforcement restricted Tasers to the CI. After a few more transactions, and the transfer of the weapons, the defendant was arrested. He pled guilty to extortion under color of official…

Alleyne error (924(c) count where defendant sentenced for brandishing but only charged with use) is not structural and was harmless

(Rendell, Fisher, and Chagares, Circuit Judges) (Fisher, majority; Rendell, dissent)
United States v. Lewis, Appeal No. 10-2931, 2014 WL 4413535, was remanded from the Supreme Court for further consideration in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that facts increasing a mandatory minimum must be charged in an indictment, presented to a jury, and proven beyond a reasonable doubt.
Here, Lewis was charged with using and carrying a firearm during a crime of violence (indictment and jury instructions) but sentenced for brandishing a firearm, resulting in a consecutive seven-year, instead of five-year, term of incarceration.The Third Circuit held that this Alleyne error is not structural and is reviewed for harmlessness when properly preserved.The Court explained there is a strong presumption that constitutional errors are harmless, see Neder v. United States, 527 U.S. 1 (1999), and that the most analogous error, Apprendi v. New Jersey, 530 U.S. 466 (2000) (re…

Govt's 2 questions regarding post-arrest silence violated Fifth Amendment and were not harmless

(Rendell, Chagares, and Jordan, Circuit Judges)   


    In United States v. Shannon, Appeal No. 13-2389, 2014 WL 4401054, the Third Circuit reversed a jury verdict (WDPa) for conspiracy to distribute and distribution of five or more kilograms of cocaine, because the government’s questioning of Shannon about his post-arrest silence violated his Fifth Amendment right to remain silent. On cross-examination, a defendant opens himself up to such questioning in the limited scenario where he claims to have told police the same version of events upon arrest. However, this contrast with post-arrest silence must be “blatantly inconsistent,” not simply ambiguous. If there is a constitutional violation, the court applies harmless error analysis, asking whether the government can prove beyond a reasonable doubt that the error did not contribute to the verdict.


     At trial, over a Fifth Amendment objection which was summarily overruled, the government asked Shannon why he had not come forwa…