Friday, August 31, 2018

Court upholds suppression based on Rodriguez

In United States v. Clark, 17-2739 the Court of Appeals held a traffic stop was impermissibly extended in violation of the Supreme Court's holding in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

In Clark the defendant was a passenger in a vehicle pulled over for several traffic violations, including driving without headlights at night.  The driver was using his mother's vehicle, who was not present.  The officer ran typical computer checks and determined the driver had several prior convictions for drug offenses.  The officer asked the driver questions about his criminal history, his whereabouts that evening, and to whom the vehicle was registered and where.  Although the driver could not find the registration card, he had his mother on the phone who, along with the driver, were trying to answer the officer's questions.  After some confusion the officer repeatedly told the pair he was asking these questions to determine if the driver was lying and continued to ask about his criminal history.  After the officer determined the driver had recently been released from prison he had him step out of the car to its rear where he began asking questions about his passenger, the defendant.  The officer then went to the passenger window and asked the same questions of the defendant - his answers about how long he's known the driver and where they'd been that night were inconsistent with those given by the driver.  The officer then observed an odor of marijuana from the passenger side and directed the defendant to step out for a pat down search.  At that point the defendant admitted he had a firearm in his waistband.  

Clark was indicted on a 922(g)(1) count and moved to suppress the firearm on the grounds the stop was impermissibly prolonged.  The District Court agreed.  Specifically, the District Court found the officers questions regarding the driver's criminal history, of which the officer already knew the answers based on his computerized checks, were not aimed at ascertaining it.  And that line of questioning prolonged the stop.  Further, it failed to find anything "suspicious" about the driver's behavior or "inappropriate."

The Court of Appeals upheld the District Court's findings.  In contrast to its recent opinion in United States v. Green, 897 F.3d 173 (3d. Cir. 2018), also a Fourth Amendment case involving a Rodriguez issue where a denial of suppression was upheld, the Court determined that not all police inquiries are alike.  In this case, inquiries about the driver's criminal history, which were aimed at determining if he was legally permitted to drive, was tied to the purpose of the stop or if the traffic stop had ended before that line of questioning began.  In this case, the Court found the officer's computerized checks verified information he gave which was the vehicle belonged to his mother.  Once the officer was able to confirm that information, the Court determined that was sufficient to demonstrate the driver had the authority to drive the vehicle and further questioning did nothing but prolong the stop.  

Of note, the Court of Appeals did not tackle how its opinion in Clark and the recent opinion in Green, which had different panels, reconcile with one another.  Both cases involved traffic violations with prolonged stops, involved driver's with criminal histories, and involved typical road-side questioning by police.

Monday, August 27, 2018

Court Rejects 2013 Precedent Granting Habeas Relief, Holds Confrontation Clause Not Violated

In Mitchell v. Superintendent Dallas SCI, No. 17-3118 (Aug. 23, 2018), the Court upholds the denial of relief to a habeas petitioner whose codefendant had prevailed on the very same claim in 2013. At issue was the admission of a third defendant’s out-of-court statements admitting his involvement in a robbery and murder for which all three were on trial, and claiming that the homicide was “the other two’s idea.” The statements were recounted by inmates to whom the third defendant reportedly spoke about the case in jail.

In Eley v. Ericson, 712 F.3d 837 (3d Cir. 2013), the Court determined that admitting the third defendant’s statements had violated codefendant Karim Eley’s Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968), which barred the admission at a joint trial of one defendant’s out-of-court statement inculpating both himself and another defendant. Several decades after Bruton, but still years before Eley, the Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause limits the admission only of “testimonial” hearsay, such as statements made to law enforcement officers seeking information about past events. The Commonwealth did not contend in Eley’s case that the third defendant’s statements to other inmates were not “testimonial” within the meaning of Crawford. Nor did the Court itself contemplate any such problem with Eley’s claim. It ordered that Eley be retried within 120 days or else released from custody.

But this precedent is of no help to codefendant Edward Mitchell, the Court now concludes: “[W]e are obliged to consider Crawford because it is a relevant precedent and the respondent squarely has raised the case even though we did not discuss Crawford when we granted relief to Eley.” The opinion notes that United States v. Berrios, 676 F.3d 118 (3d Cir. 2012), held Crawford to establish that the Confrontation Clause did not prohibit the introduction of surreptitiously recorded communications between two codefendants in a jail yard recalling their own and an additional defendant’s roles in the offense. The same was true in Mitchell's and Eley's case with respect to the third defendant's statements to other inmates. Accordingly, Mitchell could not show he “is in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), and was not entitled to habeas relief.

Convictions Affirmed in Prosecution that Took Down Philadelphia Traffic Court


In a decision resolving six consolidated appeals beginning with United States v. William Hird, No. 14-4754, the Court revisits the venerable question of what constitutes a scheme to obtain “money or property” within the meaning of the mail and wire fraud statutes at 18 U.S.C. § § 1341 and 1343. Holding a governmental entity’s lawful entitlement to collect fines and costs for traffic violations to qualify as “property” under the fraud statutes, the Court affirms.

The widely publicized prosecution began in 2013 with the indictment of five sitting and former judges of the Philadelphia Traffic Court, along with other defendants, for fixing tickets on the part of favored individuals. Several judges were acquitted of all fraud counts at trial, but two defendants pleaded guilty after preserving their right to appeal a denial of their motion to dismiss these counts as failing to state an offense. Affirming the motion's denial, the Third Circuit canvasses the line of precedent establishing that mail fraud and wire fraud are limited in scope to the protection of property rights. The Court ultimately foregrounds Pasquantino v. United States, 544 U.S. 349 (2005), which held that a scheme to evade import taxes on liquor smuggled into Canada supported conviction of federal wire fraud. Finding unrealized fines for traffic violations to be analogous to evaded taxes, the Third Circuit concludes that the indictment sufficiently charged a scheme to defraud the City of Philadelphia and Commonwealth of Pennsylvania of property within the cognizance of §§ 1341 and 1343. The fact that the favored individuals were never found guilty of a traffic violation did not foreclose prosecution because the very object of the scheme was to obviate judgments that would have imposed fines and costs.

The opinion also reviews the law governing perjury in violation of 18 U.S.C. § 1623, the only offense of which three of the traffic judges were found guilty, based on testimony they had given before a grand jury. On appeal, they contended the evidence was insufficient because the questions asked of them were fatally vague or their answers were literally true. Rejecting these arguments, the Court reaffirms that “precise questioning is imperative as a predicate for the offense of perjury,” but adds that on sufficiency challenges, “[o]ur review … is focused on glaring instances of vagueness or double-speak by the examiner” that “would mislead or confuse a witness into making a response that later becomes the basis of a perjury conviction.”

Thursday, August 23, 2018

'Serious Bodily Injury' Agg Assault Held Not to Qualify as ACCA Predicate

In United States v. Anthony Mayo, No. 16-4282 (Aug. 22, 2018), the Court holds that first-degree aggravated assault in violation of Section 2702(a)(1) of Pennsylvania’s Crimes Code does not qualify as a predicate “violent felony” for purposes of the 15-year mandatory minimum provided by the Armed Career Criminal Act.

Before Johnson v. United States, 135 S. Ct. 2551 (2015), the Pennsylvania assault offense was thought to qualify under the so-called “residual clause” of ACCA’s definitional provision, which looks to whether the elements of an offense ordinarily involve conduct presenting “a serious potential risk of physical injury to another.” Johnson having held the residual clause to be unconstitutionally vague, the Pennsylvania offense cannot qualify as a predicate unless it meets the ACCA’s alternative definition of a violent felony as an offense having as an element the use or threat of "physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i).

A person violates Section 2702(a)(1) if he causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to human life. Relying on authoritative Pennsylvania state precedent, Mayo concludes the offense does not necessarily involve the use or threat of physical force because a conviction may be obtained by proving culpable acts of omission such as failing to provide a child with food or medical care.

The Court rejects the government’s argument from United States v. Castleman, 134 S. Ct. 1405 (2014), which states that “‘bodily injury’ must result from ‘physical force.’” That decision, the Court explains, construed a different definitional provision and expressly reserved the question of whether the same analysis would apply to the ACCA. Furthermore, to hold aggravated assault as defined by Section 2702(a)(2) a violent felony would “conflate an act of omission with the use of force, something that Castleman, even if it were pertinent, does not support.”

The Court also distinguishes Chapman v. United States, 866 F.3d 129 (3d Cir. 2017), which concluded that the offense defined by 18 U.S.C. § 876(c), which proscribes mailing a communication containing a threat to injure the person of another, has the threat of force as an element. Mayo explains that while some offenses defined in terms of the causation of bodily injury “inherently involve the use or attempted use of ‘physical force,’ we have not said that bodily injury is always and only the result of physical force.” In the end, "because Pennsylvania aggravated assault under § 2702(a)(1) criminalizes certain acts of omission, it sweeps more broadly than the ACCA’s definition of ‘physical force.’”