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THE CATEGORICAL APPROACH DOES NOT APPLY TO A CONTEMPORANEOUS CRIME OF VIOLENCE AND A VIOLATION OF 18 U.S.C. § 924(c)

In two cases decided on December 19, 2016, United States v. Robinson, No. 15-1402, 2016 WL 7336609 and United States v.Galati, No. 15-1609, 2016 WL 7336610, the Circuit adopted a novel approach to addressing whether an offense qualifies as a crime of violence under 18 U.S.C. § 924(c).The Circuit held that the categorical approach, which directs a court to look only at the elements of the particular offense of conviction to determine whether it qualifies as a crime of violence (See Taylor v. United States, 495 U.S. 575 (1990)), does not apply when a 924(c) conviction is contemporaneous with the conviction for a crime of violence.The Court said that this is because the record of all necessary facts are before the district court.The facts of the charged offenses, either determined by a jury (as in Robinson) or admitted by the defendant during a guilty plea, unmistakably shed light on whether the purported crime of violence was committed with “the use, attempted use, or threatened use of …

Elonis STILL guilty for Facebook threats

In US v. Elonis, 12-3798 (10/28/2016), the Third Circuit affirms Elonis’s conviction for Facebook threats -- again.  SCOTUS vacated the Circuit’s original denial of Elonsis’s appeal.  As a matter of statutory interpretation, a conviction under 18 U.S.C. § 875(c), transmitting a threat to injure another person in interstate commerce, could not be based solely on an objective standard (whether a reasonable person would perceived the words as a true threat).  There must be a mens rea requirement greater than negligence.  SCOTUS refused to state whether a mens rea of recklessness would be sufficient.  However, SCOTUS wrote that the jury should have been instructed that Elonis could be convicted if it found he “transmitted a communication for the purpose of issuing a threat or with knowledge that the communication would be viewed as a threat.”  SCOTUS did NOT reach the First Amendment issues.
On remand, the Third Circuit found that the trial court’s instruction containing the objective sta…

Interlocutory appeal of disclosure order in grand jury proceedings dismissed for lack of jurisdiction

The Third Circuit dismissed the appeal in In Re Grand Jury Matter #3, 15-2475 (10/28/2016), for lack of jurisdiction.  In response to a grand jury subpoena, John Doe’s accountant gave the government an email that was written by John Doe’s lawyer and forwarded to the accountant by John Doe. The government wanted to show the email to the grand jury.  John Doe claimed that it was attorney work product and privileged.  District Court ruled that the crime-fraud exception applied and that the government could disclose the email to the grand jury.
            Normally, to file an interlocutory appeal of such a disclosure order, the subpoenaed party would have to refuse the subpoena, get held in contempt, and then file an appeal of the contempt finding.  However, in circumstances, such as here, where the document is not in the possession of the person opposing disclosure, the person opposing disclosure is unable to choose to stand in contempt so that he/she could immediately appe…

Pro se appeal of non-decision dismissed for lack of jurisdiction

In Marshall v. Commissioner of PA DOC, et al. 16-9000 (10/25/2016), the Third Circuit dismissed this pro se appeal for lack of jurisdiction.  Marshall is a capital inmate with a pending federal habeas petition who moved to proceed pro se.  After additional motions and a psychiatric evaluation, the District Court held a hearing in which parties addressed whether Marshall was competent and whether he could proceed pro se.  At this hearing the District Court specifically stated that it had not yet decided these issues but that it would do so shortly.
            After the hearing, but prior to the announcement of any decision, Marshall filed a pro se appeal of the District Court’s (then non-existent) denial of his motion to proceed pro se.  After that, the District Court issued an order finding Marshall not competent and denying his motion to proceed pro se.  No parties (not Marshall nor his counsel) filed anything further with the Third Circuit after the District Court’s op…

Pennsylvania Drug Priors Not Necessarily Qualifying Predicates for Recidivist Enhancements

In Singh v. Attorney General, No. 15-2274, the Court reverses the Board of Immigration Appeals’ determination that an alien's prior Pennsylvania drug offense was an “aggravated felony” making him subject to removal and ineligible for discretionary relief.  In both this immigration context and those presented by recidivist enhancements such as the Sentencing Guidelines’ career offender provision, the court must determine whether the prior conviction was for an offense matching the “generic” federal definition of the pertinent crime.  If the state offense sweeps more broadly, it is not a predicate.
With regard to Pennsylvania's principal controlled substance law at 35 Pa. C. S. § 780-113(a)(30), that requirement can present an issue inasmuch as the state’s controlled substance schedules at § 780-104 include drugs not embodied in the federal schedule at 21 U.S.C. § 802.  A prior conviction therefore cannot be deemed a predicate unless the sentencing court (or immigration judge) …

Unusual Bankruptcy Fraud Case Yields Guidance on Sentencing and Proof Issues

In the rare bankruptcy fraud case to reach it, United Statesv. Free, No. 15-2939, the Court confronts an instance of a defendant who filed for voluntary reorganization under Chapter 13 despite having adequate assets to repay his creditors in full.  The proceeding was later converted into a Chapter 7 action and the creditors made whole.  Defendant Michael Free was meanwhile found guilty by a jury of making false statements in filings and testimony in the bankruptcy proceedings.  At sentencing, the government sought a 16-level enhancement under the 2014 Sentencing Guidelines for a loss amount of between $1 and $2.5 million.  The sum represented an accounting of the value of certain assets concealed by Free from the bankruptcy court.  (Note that by amendment effective November 1, 2015, Section 2B1.1 now requires a loss $1.5 to $3.5 million to trigger a 16-level bump.)
Section 2B1.1 of the Guidelines, pertaining to fraud and other economic crimes, defines “loss” as the greater of the “re…

No Requirement of Actual Harm for Vulnerable Victim Enhancement

In United States v. Adeolu, No. 14-3610, 2016 WL 4728003, the Circuit affirmed Adeolu’s sentence, holding that the vulnerable victim enhancement at U.S.S.G. § 3A1.1(b)(1), does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.
     Adeolu, a tax preparer, prepared fraudulent tax returns by having his clients claim false dependents.  Adeolu was ultimately convicted of conspiracy to defraud and aiding and abetting the preparation of materially false tax returns (18 U.S.C. § 371 and 26 U.S.C. § 7206(2)).  At sentencing, the court applied the vulnerable victim sentencing enhancement set forth in § 3A1.1(b)(1) based on Adeolu's use of young children's personal information. On appeal, Adeolu argued that the children were not vulnerable victims because they did not experience “actual” harm.
     In rejecting the actual harm requirement, the Circuit states that any issue regarding harm is encompassed within the analysi…

Repeat and Dangerous Sex Offender Guideline / Categorical Approach

In United States v. Dahl, No. 15-2271 (3d Cir., Aug. 17, 2016), the district court committed plain error by failing to apply the categorical approach in determining whether Dahl’s Delaware first- and third-degree unlawful sexual contact convictions constitute federal sex offense convictions under the federal repeat offender statute, 18 U.S.C. § 2426(b)(1)(B), and therefore subjected him to an increased sentence under the career sexual offender guideline embodied at U.S.S.G. § 4B1.5. Section 2426(b)(1)(B) refers to a “conviction for an offense . . . consisting of conduct that would have been an offense” under certain federal statutes, and § 4B1.5 refers to a “sex offense conviction” as “any offense [under 18 U.S.C. § 2426(b)(1)(B)], if the offense was perpetrated against a minor.” However, the Supreme Court’s decisions in Descamps, Johnson, Mathis, and Nijhawan v. Holder, 557 U.S. 29 (2009) demonstrate that the factual inquiry triggered by the qualifying language in the statute is limi…

Collateral Attack of Sentence Not Permitted at Supervised Release Revocation Hearing

In United States v. Jones, No. 15-1636 (3d Cir., Aug.17, 2016), Defendant sought to challenge the classification of his underlying conviction during his supervised release revocation hearing. Specifically, Defendant attempted to argue that, in light of Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S.Ct. 2551 (2015), his ACCA conviction should be graded as a Class C felony instead of a Class A felony. The Third Circuit rejected Defendant’s argument in short order, by announcing that it was joining several of its sister circuits who have ruled that the validity of an underlying conviction may not be collaterally attacked in a supervised release revocation proceeding. Such challenges may only be raised on direct appeal or through a habeas corpus proceeding. The Third Circuit rejected Defendant’s claim that he sought only to challenge the decision rendered by the district court during the present revocation hearing. The Court concluded that, as the unde…

Court Decides Indictment Error SOR, Evaluates Speedy Trial Claim

United States v. Terrell Stevenson, No. 15-1942, concerns a “hip-hop heroin hub” called Hood Promo.Following a federal investigation, 8 people were indicted on drug and weapons charges.All of them pled guilty, except Stevenson.On appeal, Stevenson argued that the Court, which granted his Speedy Trial motion, should have dismissed the indictment with prejudice.He also argued that the indictment failed to allege all the elements of the crime of fraud in relation to identification documents, and he appealed the District Court’s denial of his motions to suppress, the propriety of the district court’s conduct at trial, and the reasonableness of his 360-month sentence.

The Speedy Trial Act, 18 U.S.C. §§ 3161–3174, requires that a trial start “within seventy days from the filing date (and making public) of the information or indictment.§ 3161(c)(1). This deadline is not absolute, however, because certain periods of delay “shall be excluded . . . in computing the time within which the trial . …

Circuit Addresses Definition of "Investment Advisor" for First Time

In United States v. Miller, No. 15-2577, the Court affirmed Miller’s securities fraud and tax evasion sentence for selling fake promissory notes to investors and squandering their money ($41 million worth).In its first opinion addressing the definition of “investment advisor” under the Investment Advisers Act of 1940, 15 U.S.C. § 80b-2(a)(11), the Court held that the district court properly applied the investment advisor enhancement, U.S.S.G. § 2B1.1(b)(19)(A)(iii), because Miller was an investment advisor.In addition, the Court found that the government had not breached the plea agreement and that the sentence was substantively reasonable.
The Court held that, considering the broad definition of “investment advisor” in the statute, the fact that no exception in the statute applied to Miller, and that the Sentencing Guidelines adopt the definition from the statute, Miller’s activities qualified him for the enhancement.The statute defines “investment advisor” as any person who, for comp…

Term of Imprisonment is Synonymous with Sentence of Imprisonment under U.S.S.G. §4A1.2