Third Circuit Finds Reasonable Expectation of Privacy Where Defendant Had Lawful Possession of Keys to Girlfriend's Rental Car

In United States v. Montalvo-Flores, ---F. 4th---, 2023 WL 5521062 (3d Cir. Aug. 28, 2023), the Third Circuit found the defendant, Christopher Montalvo-Flores, had a reasonable expectation of privacy in a rental car, giving him Fourth Amendment standing to challenge a search of the vehicle.  The majority pointed to the fact that Mr. Montalvo-Flores was in possession of the vehicle's keys; the vehicle was locked; the vehicle had been rented by his girlfriend; and officers had seen the couple exchange the keys just prior to the search.  The majority found that Mr. Montalvo-Flores satisfied both prongs of the Katz test for Fourth Amendment standing because he expressed a subjective expectation of privacy in the vehicle and that expectation was objectively reasonable under the circumstances.  The majority also found that Mr. Montalvo-Flores's lack of a valid driver's license was immaterial to the issue of standing because a person without a driver's license can still exercise lawful dominion and control over a parked car.  

 The Court accordingly vacated Mr. Montalvo-Flores's conviction and remanded for further proceedings on his motion to suppress.  In dissent, Judge Hardiman argued that Mr. Montalvo-Flores failed to carry his burden of showing that his possession of the vehicle (vis a vis the keys) was lawful.

Third Circuit Clarifies Meaning of "Officer or Employee of the United States" in Federal Assault Statute

In United States v. Washington, ---F. 4th---, 2023 WL 5440527 (Aug. 24, 2023), the Third Circuit clarified the meaning of "officer or employee of the United States" in 18 U.S.C. § 111 and 1114(a), which make it a crime to assault such a person while they are engaged in their official duties.  The defendant, Mr. Washington, was convicted of assaulting two private contractors paid by the Federal Protective Service to protect the Social Security Administration building in Philadelphia.  The Third Circuit held that the contractors were not "officer[s] or employee[s] of the United States" because they did not hold an office of trust; their tenure was transient or fixed by agreement; their contract resembled an employment contract rather than an appointment or election; their pay was set by contract rather than law; and they were not nominated, confirmed, or appointed by a federal official such as the President of the United States or a department head.  

Because Mr. Washington did not assault an "officer or employee of the United States," and the evidence was insufficient to convict him under an alternative theory of liability, the Third Circuit reversed his conviction and remanded with instructions to enter a judgment of acquittal.

Third Circuit Vacates Sentence Based on Extrapolated Drug Weight

In United States v. Titus, ---F. 4th---, 2023 WL 5356241 (3d Cir. Aug. 22, 2023), the Third Circuit found that a district court erred when calculating the converted drug weight for sentencing under U.S.S.G.§ 2D1.1.  To calculate the total amount of drugs the defendant had unlawfully prescribed, the District Court extrapolated from a sample of 24 files and found thousands of additional prescriptions to be unlawful.  That analysis was insufficient, the Third Circuit held, because "the government never showed that the sample was large enough to be reliably representative of the remaining thousands of prescriptions."  The Third Circuit accordingly vacated the defendant's sentence and remanded for resentencing.

Third Circuit Deems Pennsylvania Robbery Under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) a "Crime of Violence" for Guidelines Purposes

In United States v. Henderson, ---F. 4th---, 2023 WL 5211335 (3d Cir. Aug. 15, 2023), the Third Circuit found that Pennsylvania robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) is a categorical "crime of violence" under the federal Sentencing Guidelines.  The Court reiterated its earlier holding that the Pennsylvania robbery statute is divisible for purposes of the categorical approach.  It then found that the version of the offense criminalized at § 3701(a)(1)(ii) counts as a "crime of violence" under the elements clause of U.S.S.G. § 4B1.2(a)(1) because it necessarily involves the threatened use of force against the person of another.  The Court did not reach the alternative question of whether the offense also qualifies as a "crime of violence" under § 4B1.2(a)(1)'s enumerated offenses clause.

Third Circuit Finds No Convergence or Personal Benefit Requirement in Federal Wire Fraud Statute

In United States v. Porat, ---F. 4th---, 2023 WL 5009238 (3d Cir. 2023), the Third Circuit clarified what the government has to prove to prove someone guilty of wire fraud, in violation of 18 U.S.C. §1343.  First, the Court held that the wire fraud statute does not require proof that the defendant sought to personally obtain money or property from the victims.  The Court agreed with the Second Circuit that the "identify of the ultimate beneficiary is not dispositive" and the statute is broad enough to encompass "schemes by defendants to obtain money for the benefit of a favored third party."  

Second, the Court joined the majority of other Circuits in holding that the wire fraud statute does not require the defendant to deceive the same party he defrauds of money, rejecting a concept known as "convergence."  

Third Circuit Adopts a Two-Factor Test to Determine Whether a Private Party Was Acting as an Agent of the Government for Fourth Amendment Purposes

In United States v. Kramer, ---F. 4th---, 2023 WL 4875890 (3d Cir. 2023), the Third Circuit joined the Fourth, Ninth, Tenth, and Eleventh Circuits in adopting a two-factor test for determining whether a private party was acting as an agent of the government for Fourth Amendment purposes.  The two factors are: "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private citizen performing the search intended to assist law enforcement or acted to further her or his own legitimate and independent purposes."  The Third Circuit also joined its sister Circuits in holding that the defendant bears the burden of proving the private party was acting as an instrument of the government.  

Applying the test to the case at hand, the Third Circuit affirmed the District Court's denial of the defendant's motion to suppress.  The Court found that the Fourth Amendment was not implicated because, viewing the record in the light most favorable to the government, the defendant's then-wife searched his cellphone of her own volition without the government's knowledge or acquiescence.