Saturday, March 09, 2019

Jurisdiction of the Virgin Island District Courts / Limitation on cross based on Rule 403


Ayala was convicted in the District Court of the Virgin Islands of federal Hobbs Act robbery and conspiracy, use of a firearm during the commission of the crime of violence, and Virgin Islands first degree robbery.  At trial, the evidence showed that on August 19, 2015, a jewelry store on St. Thomas, U.S.V.I. was robbed at gunpoint by co-defendants Thomas and Emmanuel. Another co-defendant, Miller, waited outside in a getaway car.  Ayala was in the front passenger seat.  Thomas, Emmanuel, and Miller testified about Ayala's role in the robbery: Ayala paid for their plane tickets from St. Croix to St. Thomas; reserved and paid for the hotel rooms; and, picked up and paid for the rental car.  After the robbery, she paid Thomas and Emmanuel for their work. 

At trial, Ayala raised the affirmative defense of duress.  She argued that two other men, Bogus a/k/a Bogie (“B”) and Waza a/k/a Muwaza (“W”), told her to participate in the robbery and that she only agreed because she feared for her life. Additionally, she feared for her brother, who was W’s cellmate.  During cross-examination, Ayala was permitted to question the government witnesses about B and W, but not their reputations for violence, in support of her defense based on Rule 403. 

Ayala raised five issues on appeal which the Circuit ruled on as follows:

1. Pursuant to congressional grants of jurisdiction in 48 U.S.C. § 1612(a) and 18 U.S.C. § 3241, the District Court of the Virgin Islands can adjudicate federal criminal offenses in cases in which the United States is a party;

2. The Court further held that a judge of the District Court of the Virgin Islands may serve past the expiration of the judge’s ten-year term, until the President nominates and the Senate confirms a successor, and the fact that the term of the presiding judge had expired did not render the convictions invalid;

3. Next, the Court addressed whether convictions for both Hobbs Act robbery and Virgin Islands first-degree robbery violated the Double Jeopardy Clause.  Because the federal charge contains an interstate commerce element, whereas the VI robbery offense requires the display or threat to use a dangerous weapon, each requires proof of an element the other does not, and therefore meets the Blockburger standard and no violation of the Double Jeopardy clause.

4.  Ayala challenged the court’s limitation on her ability to cross-examine the government's witnesses about B’s and W’s reputations for violence, given that such a line of questioning went to the heart of her affirmative defense of duress—that she only committed the crime because she believed B and W would hurt her or her family if she did not, and that her fear was objectively reasonable.  The trial court gave little explanation other than citing Rule 403, and did not put any balancing on the record. 

The Court here elected to conduct its own balancing.  At trial, although not permitted to ask government witnesses (including law enforcement witnesses) about B’s and W’s reputations for violence, Ayala was permitted to ask the witnesses if they knew B or W, whether the witness was afraid of them, and how that fear affected their decisions.  Miller and Emmanuel both testified on cross-examination about their fear of B and W, and Miller admitting that he did not want to even say B’s name out loud out of fear.  Emmanuel was able to testify on cross-examination that he turned himself in to the police after the robbery because he “felt threatened big-time” by B and W, that B and W are “both dangerous dudes” and that he was afraid of their “reach” and the violence they could do to his family and him.  Thomas testified that he was not afraid of B or W.

Although “troubled” that the trial court did not provide on-the-record balancing, the Court was satisfied that it had not abused its discretion in limiting cross-examination.  The Court explained that Ayala’s duress defense did not depend on B’s and W’s past crimes or reputations as they were not on trial and the probative value was slight to none.  “What Ayala sought to prove—namely, that she faced an immediate threat of death or serious bodily injury; her claimed fear was well-grounded; this immediate threat directly caused her criminal acts; and she did not recklessly place herself in the situation,  . . . had nothing to do with B's and W's reputations.”  Furthermore, this narrow limitation on cross-examination did not hinder Ayala from eliciting the evidence that went to her duress defense, as the jury was permitted to hear whether her co-conspirators were afraid of B and W, and how that fear affected their actions.

5.  Finally, the Court held that the shackling of Ayala during her non-jury sentencing was not an abuse of discretion.

United States v. Ayala, No. 17-2422 (March 6, 2019)

Excludable time for competency determination under STA does not automatically include delay for transportation beyond ten days; delay in transport found unreasonable and therefore not excludable.

On January 28, 2014, Williams was charged by information with federal and VI firearms offenses.  Prior to arraignment, Williams's counsel filed a motion for a hearing to determine Williams’s mental competency pursuant to 18 U.S.C. § 4241(a).  The Government subsequently filed its own motion for a hearing to determine competency.  On June 11, 2014.  The court ordered that Williams be transported to the Federal Medical Center in Butner.  The following day—June 12, 2014—a grand jury returned an Indictment.  On June 18, 2014, Williams was arraigned with respect to the charges contained in the Indictment.

Although the order was issued on June 11, 2014, Williams did not arrive at FMC Butner until July 29, 2014.  On November 6, 2014, following receipt of the report from Butner, the court entered an order committing Williams to the custody of the United States Attorney General pursuant to 18 U.S.C. § 4241(d).  On October 9, 2015, following another hearing, Williams was deemed competent and the court indicated that it would set a date for trial.  Following a period of inactivity, on December 2, 2015, the Government ended a fifty-three-day lapse in activity by filing a motion in limine. 

On December 18, 2015, Williams filed a motion to dismiss the Indictment (the “First Motion to Dismiss”), based on the the Speedy Trial Act.   What ensued were more filings and lengthy periods of inaction during which the District Court took no further action with respect to Williams's First Motion to Dismiss.  On July 15, 2016, Williams filed a second motion to dismiss the Indictment.  After nearly three months of further inaction, Williams filed a writ of mandamus in the Circuit.  This prompted the district court, on October 24, 2016, to set a trial date.  On October 26, 2016, the District Court, in an order that did not include written reasons, denied Williams's Second Motion to Dismiss and denied Williams's First Motion to Dismiss as moot.

Williams subsequently pleaded guilty to one count of possessing a firearm within 1,000 feet of a school zone, but reserved the right to appeal the speedy trial violation.  The District Court sentenced Williams to a term of “time served” and a one-year period of supervised release.

Relevant to this decision is only the period of transport from June 11, 2014 to July 29, 2014, and the interaction of two Speedy Trial Act provisions which exclude from the 70-day clock: (1) delay resulting from any proceeding, including examinations, to determine mental competency, § 3161(h)(1)(F), and (2) delay resulting from transportation to and from places of examination, “except that any time consumed in excess of ten days from the date an order ... directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable.” See § 3161(h)(1)(F).

Here the government conceded that at least fifty-three days had elapsed from the seventy-day speedy trial clock.  The issue then was whether, or to what extent, the time between  June 11, 2014—when the District Court ordered that Williams be transported to FMC Butner to undergo a psychological examination—and July 29, 2014—when Williams arrived at FMC Butner—was excludable for purposes of the seventy-day speedy trial clock.

The Circuit held first that periods of unreasonable delay of more than ten days in the transport of a defendant to the site of a psychological examination are non-excludable, regardless of the fact that they occur within the period of excludable delay under § 3161(h)(1)(A), which begins when a party moves for, or the court sua sponte orders, a competency determination and continues at least until a competency hearing is held.  This is because “to exclude any and all periods of delay in transporting a defendant to the site of a psychological examination—regardless of whether such delay is in excess of ten days and otherwise unreasonable—would read section 3161(h)(1)(F) out of the statute.” 

Next, the Court turned to the extent to which the period of delay in transporting Williams to FMC Butner was excludable.   The district court entered its order for transport for a psychological examination on June 11, 2014, thus the period through June 21, 2014—ten days—was automatically excludable.  See 18 U.S.C. § 3161(h)(1)(F).  The extra thirty-seven-day period between June 21, 2014, and July 29, 2014, when Williams arrived at FMC Butner, was deemed to be presumptively unreasonable and, therefore, presumptively non-excludable.  The Court found further that the explanation for the delay—that the Marshals Service did not receive the order until July 9, 2014, attributable only to negligence on the part of the government or the district court—to be “patently unreasonable and non-excludable.”  Given this finding, a total of ninety days of non-excludable time had elapsed prior to the commencement of a trial, and Williams's rights under the Speedy Trial Act were violated.

Finally, the district court had sentenced Williams, who had been detained for over three-and-a-half years, to “time served.”  Williams had also completed his one-year term of supervised release.  Thus, no purpose would be served by retrying Williams, and dismissal without prejudice in this case would be contrary to the administration of justice.  The Court remanded to the District Court with instructions to dismiss the Indictment with prejudice.

United States v. Williams, No. 17-3422 (March 5, 2019)

Friday, March 08, 2019

District Court’s sua sponte continuance did not validly exclude time under STA

Following his conviction for wire fraud and aggravated identity theft, Reese appealed his conviction, in part based on a claim that his trial took place beyond the 70-day Speedy Trial Act time limit.  The Circuit here agreed and vacated the -conviction.  United States v. Reese, No. 17-2484 (March 5, 2019).

Prior to trial in Reese’s case, after a period of 50 non-excludable days had elapsed, the district court held a pretrial conference.  At this November 10, 2016, hearing the district court opened by stating that, in order accommodate the court’s calendar, trial was to be moved to February 22nd.  Reese’s counsel responded “February 22nd will work for me. I'm just really bad in December and January myself. February opens up.” There was no further discussion of postponing trial or the need to exclude time under the Speedy Trial Act.  A subsequent order stated that Reese's trial was rescheduled for February 22, “per the final pretrial conference held November 10, 2016,” without any further explanation for the basis of the rescheduling. It did not mention the exclusion of time under the Speedy Trial Act or use any language that would suggest a finding by the Court that an exclusion was proper.

This sua sponte continuance carried the date of trial beyond the 70-day limit, and just before trial Reese filed a motion to dismiss the indictment.  The district court denied the motion and Reese appealed. 

Looking at the “ends of justice” exclusion provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), the Court noted (reiterated really) that an exclusion of time for “the ends of justice” is not automatic, but must set forth in the record its reasons for finding that the ends of justice served by the granting of such continuance “outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).

The Court then rejected the Government’s argument that the continuance was entered “in consultation with” Reese's counsel during the November 10 pre-trial conference based on the record which made clear that the District court began the conference by announcing the continuance.  Next, the Court rejected the Government’s theory that the defense acquiesced, finding that the Supreme Court has squarely rejected the prospective exclusion of time “on the grounds of mere consent or waiver.” (citing Zedner v. United States).  Finally, the Court rejected an argument that Reese needed to establish prejudice, which is required only under the Sixth Amendment speedy trial claims. 

Wednesday, March 06, 2019

Good Faith Exception Applies to pre-Carpenter Seizures of Cell Site Location Information (CSLI) Under the Stored Communications Act (SCA).


             Appellant Jay Goldstein had moved to suppress cell site location information (CSLI), in the District Court, arguing a violation of his Fourth Amendment rights because the information was obtained without a warrant.   The District Court denied the motion finding the information was lawfully obtained under the Stored Communications Act (SCA),  18 U.S.C. § 2703 (d), which does not require a showing of probable cause, but only a lower standard of “specific and articulable facts” showing that there were reasonable grounds to believe that the information sought was “relevant and material” to the underlying investigation.  The Third Circuit initially affirmed the decision pursuant to prevailing circuit case law that held a defendant did not have a privacy interest in CSLI and therefore the government did not need to establish probable cause before gathering the information.  Then, following the Supreme Court’s decision in Carpenter v. United States, 138 S.Ct. 2206 (2018), which held that defendants do have a privacy interest in their CSLI and a warrant based on probable cause is needed prior to seizing this type of data, the Third Circuit granted Appellant’s petition for rehearing.  The Third Circuit held as follows in United States v. Goldstein, 914 F.3d 200 (3d Cir. 2019).   

                First, the Third Circuit ruled that the government did violate Appellant’s Fourth Amendment rights, as explained by Carpenter, by seizing the information without a warrant.  However, the appellate court again affirmed the District Court’s decision under the good faith exception.  Specifically, the government seized the information under a court order that was lawful at the time it was issued and was consistent with prevailing federal appellate precedent.  The holding in Goldstein is consistent with other circuits that have found the good faith exception applies to data seized under the SCA before the decision in Carpenter.

                Notably, the Third Circuit rejected the argument that the good faith exception applies only to the actions of law enforcement.  The Court explicitly held that the rule also applies to government attorneys and any “state actors” that proceed under the reasonable good faith belief that their conduct is lawful.