Tuesday, January 13, 2015
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 important issue separate from the merits, and is effectively unreviewable on appeal. Collateral order appeals are permitted only in exceptional circumstances, including when double jeopardy may be at issue. The Court adopted a test used by most of the other circuits to determine whether double jeopardy is sufficiently implicated to permit collateral order review: would the claim, if successful, require dismissal of – at a minimum – an entire count?
Here, the defendants were acquitted of several substantive counts predicated on a mailing or email relating to a particular transaction. They argued that the jury necessarily decided that they lacked criminal intent as to those transactions. Thus, they argued, the government should be precluded from presenting any evidence of those transactions at trial. They conceded, however, that this would not prevent the government from presenting other evidence of criminal intent on the remaining counts, and that even if they prevailed in precluding the specified evidence, no count of the indictment would be dismissed. Thus, the Court concluded, it lacked jurisdiction. (In the process, it rejected an argument that United States v. Serafini, 167 F.3d 812 (3d Cir. 1999), which permits the government to seek review of orders of dismissal excising portions of counts, authorized review here, distinguishing the statutory provision – 18 U.S.C. § 3731 -- at issue.)
The Court held that the constructive amendment aspect of the motion was not appealable either, because constructive amendment, if it occurs, may be addressed on appeal after trial.
Finally, the Court refused to grant mandamus relief, because it identified no irreparable harm.
When calculating intended loss, the question is not whether the defendant could have sold the items at the prices claimed by the government but whether the defendant intended to do so
The defendant in United States v. Kirschner , __ F.3d __, 2021 WL 1570250 (3d Cir. April 22, 2021), imported counterfeit coins and bullion ...
District Court procedurally erred in rejecting leadership and obstruction enhancements and neither error was harmless. Yet, each enhancement required further factfinding so that the Third Circuit would not order these enhancements be applied on remand either.In United States v. Francis Raia , 2021 WL 1257790, Appeal No. 20-1033 (3d Cir. Apr. 6, 2021), https://www2.ca3.uscourts.gov/opinarch/2010...
The Sentencing Enhancement Under 18 U.S.C. §3147 Authorizes Courts to Add Up to Ten Years to the Statutory Maximum.Section 18 U.S.C. §3147(1) provides that if a person is convicted of an offense while under pretrial release, then in addition to the senten...
Hobbs Act Robbery is Crime of Violence under 18 U.S.C. § 924(c), but Not Crime of Violence under the Career-Offender Guideline U.S.S.G. § 4B1.2In United States v. Raul Rodriguez , Nos. 18-1606 and 18-1664 (3d Cir., May 1, 2019), Defendant pled guilty one count each of Hobbs Act ...