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Showing posts from November, 2016

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…