Friday, June 22, 2018

Prosecutorial misconduct of systematically injecting inadmissible evidence into child pornography trial was plain but did not warrant reversal; application of obstruction of justice enhancement erroneous and warranted remand for resentencing, even where district court imposed a downward variance


United States v. WelshansAppeal No. 16-4106 (3d Cir. June 14, 2018), 2018 WL 2976804



Welshans challenged his conviction and sentence for distribution and possession of child pornography.

The Third Circuit rejected Welshans's argument that the prosecution violated his due process right to a fair trial by informing the jury that the files on his computer included deeply abhorrent videos and images of bestiality, bondage, and violent sexual assault of very young children.  At trial, the district court had admitted, with limiting instructions, two videos, without sound, which lasted two and a half minutes. The rest of the collection was excluded under Rule 403 and United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012). However, the government introduced exhibits which gave detailed paragraph-length descriptions of gruesome images and disturbing file names, and also elicited testimony from three agents that the images the jury saw were not the worst of what was recovered from Welshans. The government repeated these descriptions in closing argument. While the government is free to prove its case as it sees fit, its evidence remains subject to 403 limitations, whether the evidence is videos, as in Cunningham, or written or testimonial descriptions, as here. The Court agreed that the prosecutor’s misconduct was plain, but did not rise to the level of a constitutional violation. While the misconduct was pervasive, and any limiting instructions did not address the prejudicial descriptions, the misconduct did not so infect the trial with unfairness because it did not impact the jury’s credibility determination. The only contested issue in the case was whether Welshans knew there was child pornography on his computers, and his denial was overwhelmed by the evidence: 10,000 images and hundreds of videos on his computer with no explanation how they got there, as well as his conduct trying to get rid of those files while the police were en route.

The Third Circuit agreed that the obstruction enhancement was erroneously imposed. Application Note 4(d) to U.S.S.G. § 3C1.1 provides that not all acts of destroying or concealing evidence are obstruction, for example: “if such conduct occurred contemporaneously with arrest . . . it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation . . . .” Here, Welshans received a call from his aunt that police were on their way to his house and, in a panic, he began moving files on his computer into the recycling bin. Once law enforcement found the laptop, they removed its battery. The files were easily restored, and none were lost. The panel ruled that “material hindrance” requires an actual, negative effect, rejecting the government’s overly broad interpretation that anything that takes some “extra time” and might emerge as a trial issue is a material hindrance. (Also, the government only challenged this prong at oral argument, so the Court deemed it waived). Because the enhancement was applied in error, remand was necessary even though the district court had imposed a downward variance, because the Court could not “be sure” that the erroneous calculation did not affect the sentence imposed. Judge Fuentes dissented on the sentencing reversal, finding that contemporaneous should be more strictly defined as conduct occurring “just prior to arrest,” and conduct that occurred 40 minutes before agents arrived was not “just prior.” 




Second-degree aggravated assault with a deadly weapon (Pa) is categorically a crime of violence based on the elements clause of the career offender guideline.


United States v. RamosAppeal No. 17-2720 (3d Cir. June 15, 2018), 2018 WL 2994410

On the government’s appeal, the Third Circuit found that second-degree aggravated assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), has as an element “the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Pennsylvania’s aggravated assault statute is divisible because it sets forth two alternate degrees of the offense and, within those degrees, the subsections “criminalize different conduct and set[ ] forth different (albeit overlapping) elements.” Thus, because the statute is divisible, the Court was able to consult a limited set of extra-statutory materials to establish Ramos's offense of conviction with certainty: second-degree aggravated assault with a deadly weapon. The minimum conduct sufficient to sustain that conviction was attempting to cause another person to experience substantial pain with a device capable of causing serious bodily injury. The Court concluded, “as a practical and legal matter,” an offender can "only do so by attempting to use physical force against another person.” (citing United States v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017)). The Third Circuit reversed the district court’s finding that Ramos was not a career offender, and remanded for resentencing.

Tuesday, June 05, 2018

Generic description of suspect sufficient to justify stop when analyzed under totality of the circumstances

In United States v. Foster, Appeal Nos. 16-3650 & 16-4225 (3d Cir. May 30, 2018), co-defendants challenged their convictions and sentences for being felons in possession of firearms. On February 5, 2015, a local barbershop employee called 911 to report two suspicious black males sitting in a Honda Accord in the shopping plaza's parking lot. When police arrived, the Accord promptly left the parking lot. The barbershop employee provided police with a picture of the Accord and its license plate. After running the plate, police learned that the Accord was reported stolen in an armed robbery. An email alert was sent to local law enforcement officers alerting them to the stolen vehicle and attaching the picture. The following morning, a police officer on routine patrol observed the Honda Accord sitting in the plaza parking lot with two black males inside. The officer left the lot briefly to call for backup and position himself to make a safe stop. When he returned, one of the men was standing outside the car and the other man was no longer in or near the car. The man standing next to the car, Defendant Foster, was fled from police, but was quickly apprehended and a gun was recovered from his person.

The second man, Defendant Payton, began walking away from the plaza. Another officer responded to a radio call regarding the Accord's missing second occupant. At the time he searching for the suspect around the plaza, the officer knew that he was looking for a black male and that two potentially armed and dangerous black males had been observed in a stolen Honda Accord the previous day. Within six minutes of the radio call, the officer observed Payton, a black man, walking calmly and leisurely along a road away from the plaza. The officer trailed Payton for about five minutes and radioed for a more detailed description of the suspect. Eventually, after seeing no other pedestrians in the area matching the general description of the suspect, the officer stopped and arrested Payton. A search of the Accord produced a rifle, duct tape, and gloves. 

(1) Reasonable Suspicion to Stop Payton

On appeal, Payton challenged the district court's decision denying his motion to suppress evidence discovered as a result of his arrest because the only identifying information available before he was seized was that a black male had fled the plaza parking lot. The Third Circuit rejected this challenge, holding that the district court properly considered the totality of the circumstances known to the arresting officer combined with his 14 years' experience as a police officer in finding reasonable suspicion for the stop. While the Court acknowledged that the general description of the suspect, viewed in isolation, would not support a finding of reasonable suspicion. But the Court would not ignore the context of the stop. Payton was observed within six minutes of the radio call walking less than 2/10 of a mile away from the plaza and the stolen car. No one else matching the description of the second occupant was observed anywhere in the vicinity. Furthermore, the arresting officer had more than 14 years experience, was familiar with the area, and knew from experience that it was unusual to see an unknown pedestrian walking down that stretch of road. Based on all these factors, the Court upheld the district court's finding of reasonable suspicion.

(2) Introduction of Barbershop Employees' Testimony

The Third Circuit also upheld the district court's decision to allow the introduction of the barbershop employees' testimony regarding their observations of suspicious behavior the day before the arrest. The government identified a permissible non-propensity purpose for admitting the testimony - that it was relevant to establish motive to rob the bank or jewelry store in the plaza because it showed the defendants "casing" the businesses. The evidence was relevant to the motive theory and not unduly prejudicial because it directly rebutted the defendants' own arguments regarding motive.

(3) Sufficient Evidence Supported Constructive Possession

Payton argued that the evidence was insufficient to support constructive possession of the rifle recovered from the Accord. The Third Circuit affirmed the jury's guilty verdict, finding that the evidence demonstrated both Payton's proximity to the rifle and a plausible motive for Payton to possess the gun - armed robbery. The evidence also established that Payton was in the driver's seat of the Accord on the day of his arrest. Finally, Payton's own evasive conduct - fleeing the scene and providing false identification information upon arrested - further supported a finding that Payton was connected to the rifle. 

(4) Sentencing Enhancements

The Third Circuit also upheld two sentencing enhancements applied by the district court because the defendants were unable to point to anything in the record disputing the accuracy of the factual findings relied upon by the district court in applying the enhancements.

Government's failure to file motion for reconsideration of suppression ruling within 30 days deprived Third Circuit of jurisdiction over interlocutory appeal

In United States v. Kalb, Appeal No. 17-1333 (3d Cir. May 31, 2018), the Third Circuit considered whether it had jurisdiction to hear the Government's interlocutory appeal under 18 U.S.C. § 3731 where the Government filed a motion for reconsideration of a suppression ruling after the 30-day time period for filing an appeal under § 3731. Defendant Kalb successfully argued for suppression of evidence obtained from him after police stopped his vehicle. The district court granted Kalb's motion to suppress on October 21, 2016 and filed a written opinion three days later. On November 29, 2016, the government filed a motion to reconsider. The district court denied the government's motion to reconsider on the merits, rejecting Kalb's argument that the government's motion for reconsideration was untimely because the government sought leave to review the transcript of the suppression hearing within the 30-day period.

Typically, the 30-day appeal period under § 3731 begins when a suppression order is entered on the docket. If the government timely seeks reconsideration of the order, however, the order is rendered non-final until the court decides the motion for reconsideration. The 30-day appeal period runs from an order denying a timely motion for reconsideration. On appeal, the Third Circuit concluded that the 30-day limitation period for filing an appeal under § 3731 is jurisdictional. It further concluded that the government must file a motion for reconsideration within § 3731's 30-day time period for the motion to keep the 30-day appeal period from expiring. Here, because the government's motion for reconsideration was not filed until the 30-day appeal period had elapsed, the suppression order remained final and the Court lacked jurisdiction over the government's appeal of the district court's suppression order.

Bridgegate Defendants: Court upholds wire fraud, and theft or bribery concerning programs receiving federal funds convictions, reverses deprivation of civil rights convictions.

U.S. v. Baroni , 17-1817, 2018 WL 6175668 (3d Cir. Nov. 27, 2018) Defendants Baroni and Kelly were charged with conspiracy to obtain by fr...