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Showing posts from August, 2016

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

Bribery case against Senator Menendez can proceed: advocacy for physician friend is not protected under the Speech and Debate clause of the U.S. Constitution

In United States v. Menendez, 15-3459,
http://www2.ca3.uscourts.gov/opinarch/153459p.pdf, 2016 WL 4056037 (3d Cir. July 29, 2016), the Third Circuit rejected Senator Menendez’s appeal that his indictment should be dismissed. The issue was whether advocacy on behalf of two concerns of Menendez’s physician friend, Dr. Melgen, was protected under the Speech and Debate Clause, U.S. Const. Art. 1, §6, cl. 1. The two issues were (1) allegations that Dr. Melgen overbilled the Center for Medicaid and Medicare Services (CMS) $ 8.9 million from 2007 to 2008 and (2) a contract (x-ray technology) dispute between Dr. Melgen and a company in the Dominican Republic. Menendez narrowed the issue to 5 allegedly legislative acts: meetings, calls, and staff communications with high-ranking Executive officials in the Department of Health and Human Services.

The Court explained that the Speech and Debate clause, which states that "members of Congress shall not be questioned in any other Place for any …

Johnson’s holding that ACCA’s residual clause is void for vagueness applies to the residual clause of the career offender guideline, U.S.S.G. § 4B1.2

In United States v. Calabretta,14-3969, http://www2.ca3.uscourts.gov/opinarch/143969p1.pdf, 2016 WL 3997215 (3d Cir. July 26, 2016), the Third Circuit held that the residual clause of the career offender guideline, U.S.S.G. § 4B1.2, was unconstitutionally vague. The Court looked to prior case law that interpreted the crime of violence definition in the Guidelines identically to the violent felony definition in ACCA and applied the Supreme Court’s reasoning in Johnson v. United States (2015) which had invalidated the residual clause of ACCA as unconstitutionally vague.

(The predicate crime of violence here was second-degree eluding contrary to N.J.S.A. 2C:29-2(b), which the parties agreed was only a crime of violence under the residual clause). The Court applied the vagueness doctrine to the guidelines relying on caselaw that the guidelines are sufficiently law-like to be subject to constitutional limitations. The Court noted that the guidelines are the beginning of all sentencing deter…

Did the Third Circuit Intend to Severely Narrow the Statement-Against-Penal-Interest Hearsay Exception, and to Encourage New Investigation in Habeas Proceedings?

Navigating through some murky jurisprudential waters, the Third Circuit may have steered a bit off course, and unnecessarily so. In a precedential opinion issued without oral argument, Staruh v. Superintendent Cambridge SpringsSCI, No. 15-1650 (3d Cir.  June 30,2016), the Third Circuit seems to have ruled that a third-party’s extra-judicial exculpatory confession is admissible only when the declarant is available to testify, even though the statement-against-penal-interest hearsay exception, by its terms, applies when the declarant is not available to testify. See, e.g., Fed. R. Evid. 804(b)(3). Before discussing the specifics of the case, a nutshell discussion of relevant law may prove useful.
The Supreme Court has recognized that state evidentiary rules that categorically exclude hearsay evidence—when critical to the defense and with persuasive assurances of trustworthiness—can violate due process. In Chambers v. Mississippi, 410 U.S. 284 (1973), a state hearsay rule precluded defend…