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Showing posts from 2015

United States v. Doe, No. 13-4274, Opinion Published Then Vacated.

This case concerns an appeal from the denial of a 28 U.S.C. §2255 motion filed in 2012 and a request to reopen a separate §2255 motion filed in 2008.Petitioner was sentenced in federal court in 2003, under the then mandatory Sentencing Guidelines, as a career offender. The procedural and legal history of the case are especially complex, and the case presents a number of procedural and jurisdictional questions, including disputes over statute of limitations, retroactivity, collateral review, and mootness. The Third Circuit published an opinion on this case on December 9, 2015, remanding the case for further proceedings.However, the Court subsequently vacated the opinion and granted a petition for rehearing.A new opinion will be filed following rehearing. http://www2.ca3.uscourts.gov/opinarch/134274po1.pdf
http://www2.ca3.uscourts.gov/opinarch/134274p1.pdf

Court denies suppression challenge, finding shareholder and corporate executive did not have reasonable expectation of privacy in employees' offices, employees' computers, or electronic files located on network server, but reverses and remands for new loss calculation in government contracts fraud case

In a matter of first impression, the Court, in United States v. Nagle, Nos. 14-3184, 14-3422 (3d Cir. Sept. 30, 2015), held that defendant, a shareholder and corporate executive, did not have a reasonable expectation of privacy in his employees' offices, employees' computers, or the electronic files located on the company's network server, as required to challenge the search and seizure of the corporate offices.

Defendants Nagle and Fink were co-owners and executives of concrete manufacturing and construction corporations specializing in state highway construction and mass transit projects. The defendants devised and executed a scheme to defraud the United States Government by obtaining subcontracts set aside for disadvantaged business enterprises (DBE). During the execution of two search warrants at the corporations' compound, eleven employee computers plus the network server were seized and imaged. Defendant Nagle moved to suppress the electronic evidence recovered d…

“Innocent Round Trip” Exception Not Applicable to Violation of 18 U.S.C. § 2423(b)

In United States v. Schneider, Nos. 12-1145 and 13-1491, 2015 WL 5235131 (3dCir., Sept. 9, 2015), Defendant was charged with one count of traveling in foreign commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (2000), and one count of transporting an individual in foreign commerce with the intent that such individual engage in illegal sexual activity, in violation of 18 U.S.C. § 2421 (2000).
Defendant was an American attorney and philanthropist who initiated a sexual relationship with an underaged ballet dancer from Russia whom he sponsored. Defendant met the young dancer when he was 12 years old. By the time the dancer was 14 years old, he and Defendant were living together in Moscow. Defendant and the young ballet dancer traveled between the United States and Russia twice to allow the young dancer to study ballet. Eventually, the dancer’s family learned about the relationship and filed a civil suit against Defendant in 200…

Court examines White v. Woodall, reaffirms grant of habeas relief due to Bruton violation.

Washington v. Secretary, No. 12-2883, 2015 WL 5103330 (3d Cir. Sept. 1, 2015),
In an opinion by Judge Fisher, the panel reaffirms its earlier decision granting habeas relief because of a Bruton violation.At Washington's trial, the prosecution introduced a statement by his codefendant that redacted Washington's name and replaced it with generic terms.One codefendant, Taylor, testified that Washington was the driver, who stayed in the car while two other accomplices entered, shot and killed two store employees, and stole cash from a safe. Taylor claimed Washington entered the store following the shootings and helped remove the cash.Taylor testified at trial and was impeached on cross-examination.Then a detective read a redacted version of the confession of a non-testifying codefendant, Waddy, in which Washington's and a fourth defendant's names were replaced with phrases like "they guy who went into the store" and "the driver."
The district court and t…

Habeas relief affirmed: government concedes unreliable fire-science and chromatography evidence has been discredited and Court finds remaining evidence not sufficiently “ample” to prove arson and murder beyond a reasonable doubt

In Han Lee v. Superintendent Houtzdale SCI, the Third Circuit affirmed habeas relief (under 28 U.S.C. § 2254) granted to a father who spent 24 years in prison for allegedly setting a fire that killed his daughter.

First, the Court accepted the case on the merits, rejecting procedural challenges to the appeal. A notice of appeal is delivered when received by the clerk, regardless of when it was officially filed. (discussing Fed.R.Civ.P. 5(d)(2)). A notice of appeal is valid so long as it specifies the appealing party, designates the judgment being appealed, and names the court to which the appeal is taken, even if it violates a local electronic filing requirement. (citing Fed.R.App.P. 3(c)(1)).

The Court then reviewed magistrate’s report and recommendation for plain error, without AEDPA deference, consistent with the law of the case.See Lee v. Glunt, 667 F.3d 397, 400–03 (3d Cir. 2012). The magistrate found that Lee had shown “that the admission of the fire expert testimony undermined th…

Martinez v. Ryan does not apply to excuse procedural default caused by attorney error at the state collateral appeal stage.

InNorris v. Brooks,No. 13-4448, the Court addressed a Rule 60(b) motion filed by a 2254 habeas petitioner who claimed that the case of Martinez v. Ryan, 132 S.Ct. 1309 (2012), called for the reopening of his federal habeas petition, previously denied in 2007.
Procedural background in Norris:             In his state PCRA proceedings, Norris raised a claim of ineffective assistance of trial counsel (“IAC trial counsel”) for failing to move to dismiss on rule based and constitutional speedy trial grounds.  PCRA counsel raised the IAC trial counsel claim (poorly, citing the wrong dates) in the initial PCRA petition and then abandoned the claim, over Norris’s strenuous objections, on PCRA appeal.  Norris sought review of his IAC trial counsel/speedy trial claim in a 2254 federal habeas petition.  The federal habeas court denied his petition finding that the claim was procedurally defaulted because it was not raised at the PCRA appeal level. 
A recap of Martinez: In Martinez v. Ryan, SCO…

Doyle Error Not Harmless in Credibility Contest Between Cooperator and Accused

In United States v.Jace Edwards, No. 14-4088, the Court remands for a new trial following the government's concession that the trial prosecutor had violated the constitutional rule of Doyle v. Ohio, 426 U.S. 610 (1976).  As restated in contemporary Third Circuit precedent, that rule prohibits the prosecutor from causing the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence after the defendant has been Mirandized.  On appeal, the government’s sole contention was that the trial prosecutor’s misconduct was harmless.
The Court easily dispatches of the government's contention.  Though the prosecution was founded on a controlled delivery, the Court explains, the trial boiled down to a credibility contest between the defendant and a cooperating witness.  Despite “some evidence suggesting that [the defendant’s] exculpatory story was not plausible,” there was no way to say the verdict “was surely unattributable to the error.”  Accordingly, the gov…

Court Clarifies Mental State Requirement for 'Color of Official Right' Extortion, Rejects Challenges to 'Sophisticated Means' Enhancement

In United States v.Fountain, Nos. 13-3023 &c., the Court finds occasion to clarify the elements of extortion under “color of official right” within the meaning of the Hobbs Act, 18 U.S.C. § 1951.  The three appellants were found guilty after a two-week trial of participating in a tax refund scam.  A Hobbs Act count named only one defendant, an IRS employee who drew upon her knowledge of internal auditing procedures to avoid the red-flagging of fraudulent applications for certain tax credits.  The applications were submitted using personal information supplied by third-party claimants in exchange for a portion of the refunds.  The Hobbs Act count rested on one claimant’s agreement to pay $400 to the IRS employee in the belief — on the government’s theory — that it would help the claimant obtain the refund and avoid an audit.
Distinguishing certain broad language in two prior opinions, the Court (per Krause, J., joined by Fuentes and Fisher, JJ.) holds that to prove extortion under…
Officers did not have reasonable suspicion at the moment of seizure.

InUnited States v. Shawn Lowe, No. 14-1108, ___ F.3d. ___, 2015 WL 4032921 (3d. Cir. July 2, 2015), the Third Circuit reversed the district court's denial of Lowe's suppression motion, finding that the district court had erred in determining the moment of seizure during a Terry stop.  The Court explained:

Here, three marked police carsnearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformedpolice officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commandingthem to show their hands. . . .  [T]he record indicates that [the officers] arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave. The Court also determined that Lowe submitted to the show of authority. The seizure was effe…

Prosecutorial Conduct, Response to Jury's Request and Evidentiary and Sentencing Issues Denied by Circuit

In United States v. Kolodesh, No. 14-2904 (3d. Cir. May 28, 2015), the Third Circuit affirmed the district court’s sentence of 176 months’ imprisonment, three years supervised release, and an order for $16.2 million in restitution.

Kolodesh, who co-owned Home Care Hospice, Inc., appealed his conviction of one count of conspiracy to defraud a health care benefit program (18 U.S.C. § 1349), twenty-one counts of health care fraud (18 U.S.C. § 1347), two counts of mail fraud (18 U.S.C. § 1341), and eleven counts of money laundering (18 U.S.C. § 1957) based on his company’s involvement in a Medicare fraud scheme. Kolodesh and his co-workers falsified records to show that patients were eligible for continuous Hospice care that the patients never received, gave doctors kickbacks, gifts, and cash for referrals, and even put some doctors on the company’s payroll with sham job titles.Kolodesh’s company also submitted fraudulent claims for Medicare reimbursement, which constituted 90% of their re…

Fifth Amendment Privilege Against Self-Incrimination Inapplicable to Corporate Custodian Under Collective Entity Doctrine

In In re: In the Matter of the Grand Jury Empaneled on May9, 2014, 2015 WL 2262650, No. 15-1264 (3d Cir., May 15, 2015), a clinical blood laboratory in New Jersey had been charged with bribing area doctors to refer their patients to the lab for blood testing. Two of the defendants, a medical doctor and his incorporated medical practice, were charged with accepting said bribes. A grand jury subpoenaed the custodian of records for the medical practice seeking to obtain documents related to, inter alia, the medical practice’s patient list and corporate records. The medical practice initially maintained a staff of six; however, due to financial difficulties arising as a result of the instant matter, the doctor was forced to terminate the staff. Consequently, the doctor ultimately served as the sole owner and employee of the medical practice, as well as its custodian of records. The doctor moved to quash the grand jury subpoena, arguing that compelled disclosure of the corporate records wo…

Supervised release provision requiring warrant or summons to issue before expiration of term is jurisdictional.

United States v. Merlino, No. 14-4341, 2015 WL 2059594 (3d Cir. May 5, 2015).In this appeal, involving the reputed former head of the Philadelphia La Cosa Nostra, the Court decided that 18 U.S.C. § 3583(i) is a jurisdictional statute requiring that a warrant or summons must issue before the expiration of supervised release in order for a District Court to conduct revocation proceedings. Because the summons here was issued after the termination of supervised release, the Court concluded that the District Court lacked subject-matter jurisdiction to revoke supervised release, it vacated the order revoking supervised release and imposing a prison term on Merlino (note:Merlino had commenced serving his 4-month term on January 15, 2015).
Merlino’s three-year term of supervised release began on September 7, 2011. On June 18, 2014, law enforcement saw him at a cigar bar in Boca Raton, Florida, talking with several convicted felons, including a former co-defendant.Probation concluded this viola…

Panel's Appellate-Waiver Decision Draws Sharp Criticism from Colleagues

The Court yesterday published a four-judge dissent from the denial of en banc review in what was arguably last year’s most important decision for criminal law practitioners — and certainly the most important for defendants who, after waiving the right to appeal, suffer a sentence premised on legal error.
In United States v.Erwin, 765 F.3d 219, the panel held last summer that in the event a defendant appeals such a sentence in violation of a knowing and voluntary waiver, the government may obtain a remand for resentencing at which it may invoke any breach provision authorizing the withdrawal of consideration given in exchange for the guilty plea.  (A well-established exception, which the panel reaffirmed, permits appeals when enforcing the waiver would work a miscarriage of justice.)  At Christopher Erwin’s sentencing, a Section 5K1.1 motion had saved him 4⅓ years from the Sentencing Guidelines’ recommended 20-year prison term.  Despite an appellate waiver, Mr. Erwin took his case to …

Securities Fraud: Irrevocable Liability Establishes the Locus of a Securities Transaction For Purposes of Determining Whether a Transaction was Domestic

In United States v. Georgiou, Nos. 10-4774, 11-4587, and 12-2077, the Third Circuit upheld the defendant’s securities fraud, wire fraud, and conspiracy convictions against a host of legal challenges.Georgiou was accused of engaging in a scheme to manipulate the markets of four over-the-counter stocks, i.e. stocks not listed on an American stock exchange.Georgiou and his co-conspirators opened brokerage accounts in Canada, the Bahamas, and Turks and Caicos and then used these accounts to engage in manipulative trading in the target stocks.By trading stocks between the various accounts they controlled, the co-conspirators were able to artificially inflate the stock prices to create an impression that each target stock had an active market.The manipulation allowed Georgiou and his co-conspirators to sell their shares at inflated prices and to use the inflated shares as collateral to fraudulently borrow funds on margin and obtain millions of dollars in loans from different brokerage firms…

Interlocutory Appeal Dismissed for Lack of Jurisdiction Because Preclusion of Evidence Would Not Require Dismissal of Any Count

United States v. Wright, Nos. 13-1766, 1767, 1768, -- F.3d --, 2015 WL 106198 (3d Cir. Jan. 8, 2015).  In an earlier iteration, United States v. Wright, 665 F.3d 560 (3d Cir. 2012), the Court vacated the fraud convictions of Wright, Chawla, and Teitelman under Skilling v. United States, 561 U.S. 358 (2010).On remand for retrial, the defendants sought to limit the scope of the retrial to prevent relitigation of issues they viewed as necessarily decided in their favor when the jury acquitted them on several counts, and to bar certain government arguments that they believed would constructively amend the indictment.The district court denied the motion, and the defendants took an interlocutory appeal.The Court dismissed the appeal for lack of jurisdiction, finding that the district court’s order was neither a collateral order subject to immediate review nor a final order pursuant to 28 U.S.C. § 1291.

A collateral order is not final in the traditional sense, but conclusively resolves an imp…

Striking Recommendation from Plea Doesn't Preclude Government from Arguing Enhancement

In United States v. Davenport, No. 13-3644, --- F.3d ---, 2014 WL 64698 (3d Cir. Jan. 6, 2015), the Court affirmed denial of 2255 relief in a case involving a question of breach of plea agreement. 

The government did not breach Davenport’s plea agreement when it advocated for -- and obtained -- a two-level upward adjustment for possessing a firearm in connection with his conspiracy to distribute narcotics offense.  Even though the defendant and his attorney had stricken and initialed a joint recommendation regarding the U.S.S.G. § 2D1.1(b)(1) enhancement from the written agreement during plea negotiations, the government never agreed not to argue for the enhancement.  Therefore, when the firearm clause was stricken from the agreement, it merely meant that the parties no longer jointly agreed on that specific sentencing recommendation.Reading the plea agreement as a whole, the government was entitled to put the district court on notice of all relevant information and to respond to all …

Manager of Medicare/Medicaid Provider Properly Received Sentencing Adjustment for Abuse of a Position of Trust

In United States v. Ashokkumar R. Babaria,  ___F.3d ___, No. 14-2694 (3d Cir. 12/31/14), Dr. Babaria pled guilty to 42 U.S.C. §1320a-7b(b)(2)(A) for making kickbacks to physicians in order to obtain referrals to his business for the purpose of performing medical diagnostic testing on patients whose bills were paid by Medicare and Medicaid.He received the kickbacks while at the same time certifying, on behalf of the lab doing the testing, that there were none. The government’s payments for services that resulted in kickbacks exceeded two million dollars. Despite the illegal activity, medical records were not falsified, the government was not billed for testing that did not occur, and patient care was not compromised.
At sentencing, Dr. Babaria objected to a two-level adjustment for abuse of a position of trust pursuant to USSG §3B1.3, and a four-level adjustment for aggravating role pursuant to USSG §3B1.1(a), resulting in a recommended Guidelines range of 70-87 months’ imprisonment . T…