Third Circuit Blog

The Second Amendment does not protect a person legally entitled to possess a firearm who lives with a felon from being charged with aiding and abetting under 922(g). And in determining the sufficiency of the charge in defendant’s Rule 12(b)(3)(b) motion to dismiss, the District Court should not ordinarily stray outside the four corners of the Indictment.

2012-01-13T14:34:00.003-05:00

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happens to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

In determining the sufficiency of the charge, the District Court took into consideration discovery, the affidavits of probable cause supporting the search warrant, and the prosecutor’s remarks made during Hall’s guilty plea hearing. The District Court concluded that this evidence failed to establish a connection between Huet and Hall’s possession.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession. The Court characterized the District Court’s review of facts outside the four corners of the Indictment as a “novel procedure” that “impermissibly expanded the scope of its review at the Rule 12 stage” since in reviewing a Rule 12 motion, the court must accept as true all facts alleged. The Court noted, without deciding, that if there were a stipulated record or if immunity issues were implicated, a Rule 12 dismissal might be justified on sufficiency of evidence grounds — but that’s not this case. Finally, the Court ruled that the District Court erred in faulting the Government for not including in the Indictment specific facts on how Huet aided and abetted. The Court said that the Indictment satisfied Rule 7(c)(1)’s requirement of a “plain, concise, and definite written statement.”

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment does not shield Huet from being charged with aiding and abetting a felon to possess a firearm, reasoning that Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon: the Second Amendment does not permit Huet to facilitate Hall’s illegal possession.

Attorney's failure to conduct adequate investigation of mitigating circumstances constituted ineffective assistance of counsel

2011-12-27T11:45:00.003-05:00

In Blystone v. Horn, Nos. 05-9002 & 05-9003 (3d Cir. Dec. 22, 2011), the Third Circuit denied the government's cross-appeal and upheld the district court's conclusion that trial counsel in a capital case provided ineffective assistance of counsel by failing to adequately investigate mitigating circumstances for the defendant's punishment phase of his death penalty case even though the defendant had indicated that he did not wish to present a mitigation case to the jury. The Court held that the duty to conduct a reasonable investigation of mitigating evidence exists independently of the duty to present a mitigation case to the jury. In fact, the Court found, the duty to conduct a reasonable investigation is a "necessary predicate" to the decision of whether to present a mitigation case.

Here, the trial attorney conducted a minimal investigation involving only four of the defendant's family members. He solicited no expert mental health testimony and failed to examine extensive institutional records accumulated by the defendant because the defendant had chosen to forego the presentation of his own testimony and that of his family members. The Third Circuit concluded, however, that the fact the defendant had chosen to forego presentation of the mitigating evidence the lawyer had collected did not permit the inference that, had counsel competently investigated and developed expert mental health evidence and institutional records, the defendant would have also declined their presentation.

With regard to the defendant's direct appeal, the Third Circuit held that a timely Rule 59(e) motion to amend or alter a judgment based on newly discovered evidence is not a second or successive petition, whether or not it advances a claim, and therefore such a motion lies outside the reach of AEDPA's jurisdictional limitations on collateral attacks. Nevertheless, the Court found that the defendant's evidence was not newly discovered as it had been in the defendant's possession for many months before the district court denied habeas relief. Accordingly, the Third Circuit affirmed the district court's denial of the defendant's Rule 59(e) motion.

Fact that co-conspirator helped plan robbery that led to high speed chase insufficient to warrant U.S.S.G. §3C1.2 enhancement

2011-12-27T10:45:00.002-05:00

Defendant Dwayne Cespedes was part of a three-member conspiracy which planned and executed an armed bank robbery. After removing more than $20,000 from the bank safe, Cespedes and co-conspirator Michael Grant entered the getaway car driven by co-conspirator Curtis Whitehurst. Whitehurst refused to submit to an attempted traffic stop and led police on a high speed chase through two counties. During the chase, Cespedes and Grant got out of the car and fled on foot, while Whitehurst continued his reckless driving, ignoring traffic laws, running stop signs, traveling in the wrong direction on certain roads and nearly striking several pedestrians in a crosswalk.

At Cespedes's sentencing, the district court applied a two-level enhancement for recklessly endangering others while fleeing from law enforcement officers pursuant to U.S.S.G. §3C1.2. The court rejected Cespedes's objection that the enhancement was improper because he never possessed control over the getaway vehicle and had exited the vehicle due to his co-defendant's erratic driving. On appeal, the Third Circuit, in United States v. Cespedes, No. 10-3432 (3d Cir. December 21, 2011), joined a number of other circuits in concluding that some form of direct or active participation by a defendant is required in order to apply the §3C1.2 enhancement. The Court noted that Application Note 5 to §3C1.2 provides that a defendant is only accountable for the reckless conduct of another under §3C1.2 if the defendant "aided or abetted, counseled, commanded, induced, procured, or willfully caused" the reckless conduct. Thus, where a defendant is merely a passenger in a vehicle fleeing from police, a district court must clearly indicate on the record how the defendant was responsible for the driver's conduct. The proof here, indicating only that the conspirators collectively planned a robbery that led to a high speed chase was inadequate to qualify Cespedes, a passenger in the getaway car, for a reckless endangerment during flight enhancement. Accordingly, the Court vacated Cespedes's sentence and remanded his case for resentencing without the enhancement.

Court Errs by Not Considering Postsentencing Rehabilitation on Remand after Pepper

2011-11-17T11:39:00.000-05:00

In United States v. Salinas-Cortez, No. 11-1580 (3d Cir., November 8, 2011), the defendant challenged the sentencing court’s rejection of his request for a downward variance based upon postsentencing rehabilitation. In Salinas-Cortez, the defendant pled guilty to possession with intent to distribute more than five kilograms of cocaine, as well as conspiracy to do so. At his initial sentencing hearing, the defendant requested a downward adjustment based upon his minimal or minor role in the offense. The probation office claimed in the Presentence Report that the defendant had more than a minimal or minor role in the offense. The sentencing court, at this first proceeding, adopted the PSR without specifically addressing the defendant’s request. The Third Circuit vacated this initial decision, ruling that the sentencing court erred when it failed to address the defendant’s colorable argument for a minor role adjustment. On remand, the defendant also requested a reduction based upon his postsentencing rehabilitation. The sentencing court again rejected the defendant’s request, reasoning that it did not have the authority to consider any other issue on remand except the previously-requested minor role adjustment. Approximately one week after the sentencing court’s decision on remand, the U.S. Supreme Court decided United States v. Pepper, 131 S.Ct. 1229 (2011). The High Court in Pepper addressed the issue of whether, after the original sentence has been set aside on appeal, a sentencing court may consider evidence of postsentencing rehabilitation to support a downward variance. The Court answered in the affirmative, reasoning that information regarding the defendant’s history and characteristics historically has been highly relevant to the sentencing process. The Third Circuit interpreted Pepper to conclude that the defendant’s postsentencing rehabilitation is an essential part of his history, and therefore relevant to determine his likelihood of recidivism. The court in Salinas-Cortez concluded that, while the appellate court retains the authority limit the scope of a sentencing hearing on remand, such limitation must be explicitly instructed. The court ultimately ruled that its decision to remand the defendant’s original sentence did not dictate that the sentencing court could consider only the defendant’s previously-requested minor role adjustment. Consequently, the Third Circuit remanded the sentencing once again to afford the sentencing court the opportunity to address the defendant’s request for a downward variance based upon postsentencing rehabilitation.

*Congratulations to Supervisory Assistant Federal Defender David L. McColgin on this mighty win “on the papers”! He will surely be missed here in the Eastern District of PA, as he has decided to take his “mojo” up north to Vermont.

Court finds PA Terroristic Threats Prior to be Crime of Violence

2011-11-07T11:31:00.002-05:00

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1972).

Application of the formal categorical approach showed the offense to be broader than the definition of COV under U.S.S.G. § 4B1.2(a)(1). However, § 2706 is phrased in the disjunctive, and the court applied the modified approach, outlining § 2706 to determine if there was a variation that could constitute a COV. (Since Mahone’s conviction, the PA legislature has rewritten the statute into three distinct subsections, because the Court found the statute has always been divisible into the three enumerated offenses, the analysis is the same).

The court next concluded that the subsection prohibiting a threat to commit a crime of violence with intent to terrorize another person, of which Mahone was convicted, may qualify. Next the Court re-employed the modified approach to determine whether the underlying state crime of violence could satisfy the requirements for a federal COV.

The charging document and colloquy in this case showed that the predicate PA "crime of violence" was "criminal homicide," a statutory provision states that prohibits "intentionally, knowingly, recklessly or negligently cause[ing] the death of another human being." Despite the fact that the PA crime of violence contained reckless and negligent mens reas which would not satisfy the federal COV standard, the Court concluded that the only variations of the criminal homicide statute that could serve as the predicate crime of violence for purposes of § 2706 is the act of intentionally or knowingly causing the death of another, because a person cannot threaten to terrorize another with a reckless act.

Continuing offense predating Guidelines harshening + continuing offense following Guidelines harshening + U.S.S.G. § 3D1.2 grouping + one book rule...

2011-10-21T16:46:00.004-04:00

...equals no ex post facto prohibition on applying harsher Guidelines.

The Third Circuit decided United States v. Siddons, Case No. 10-1350, on October 3, 2011. Mr. Siddons raised four issues on appeal: (1) the district court’s denial of his request to withdraw his guilty plea; (2) the district court’s applying U.S.S.G. § 2B1.1(b)(16)(A) (2008) to increase his offense level by four; (3) the district court’s applying an obstruction of justice enhancement to increase his offense level by two; and (4) the district court’s varying above the Guidelines. The Third Circuit affirmed the district court on all four, and discussed only the second in significant detail. This post follows the Court's lead.

The text of § 2B1.1(b)(16)(A) (2008) was added to the Guidelines in 2003 (and currently resides at § 2B1.1(b)(17)(A)). It enhances a defendant’s offense level by four where the offense involved a violation of securities law and the defendant was, among other things, an investment advisor. Mr. Siddons had been an investment advisor when conduct relevant to his offense – but not the offense conduct itself –started, in 2002, but was no longer one by the time the Guideline went into effect in November, 2003. He argued that the district court erred in two ways when it applied the enhancement: First, by applying the Guideline when his offense conduct didn’t meet the prerequisites, and second, by applying the Guideline when doing so violated the ex post facto clause.

The Third Circuit rejected the first argument out of hand. It held that because his 2002 behavior as an investment advisor was relevant conduct to his offense pursuant to § 1B1.3, it was part of the calculation of his offense level under § 2B1.1. It then rejected the second after a more in-depth discussion of the combined effects of offense grouping under § 3D1.2, the “one book” rule, and the continuing nature of Mr. Siddons’s offenses:

We agree with those Courts of Appeals that have found no ex post facto violation when a court groups continuing, related conduct and applies the Guidelines Manual in effect during the latest-concluded conduct. This is so because the grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of his or her last offense in a series of continuous, related offenses . . . . Due to the grouping rules at § 3D1.2(d) and the one-book rule at § 1B1.11, Siddons was on constructive notice that the November 1, 2003 enhancement could apply to his entire scheme, should he continue the conduct after the date of enactment. As the Eighth Circuit aptly stated, “it was not the amendments to the Sentencing Guidelines that disadvantaged [Siddons], it was his election to continue his criminal activity [after the effective date of the enhancements]."

The Third Circuit's position thus is consistent with the views of the Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. So far, only the Ninth has taken a contrary view.

The Sentencing Enhancement Under 18 U.S.C. §3147 Authorizes Courts to Add Up to Ten Years to the Statutory Maximum.

2011-10-21T16:22:00.001-04:00

Section 18 U.S.C. §3147(1) provides that if a person is convicted of an offense while under pretrial release, then in addition to the sentence for the underlying felony offense, the person should be sentenced to an additional term of up to 10 years. In United States v. Melvin Lewis, No. 10-4460 (3d Cir. October 18, 2011), the Third Circuit, in a case of first impression, held that §3147 has the effect of increasing the statutory maximum for an underlying offense by up to ten years, and that the sentences must be imposed consecutively.

Appellant Melvin Lewis was tried and convicted on two counts of a three count indictment. Specifically he was convicted of (1) being a felon in possession of ammunition, in violation of 18 U.S.C. §922(g)(1), and (2) committing an offense while on pretrial release, in violation of 18 U.S.C. § 3147(1). He was acquitted of a carjacking charge.

Mr. Lewis’s sentencing range was 140 to 175 months, and he was sentenced to 138 months, 96 for the ammunition offense and 42 months for violating §3147. He challenged the sentence arguing that the statutory maximum for §922(g)(1) was 120 months. The district court interpreted §3147 to authorize a combined sentence that exceeded the statutory maximum for the underlying offense. The Third Circuit agreed, finding that it was the “clear and unambiguous”intent of Congress to impose an extra sentence and that there was no exception to the statute that would prevent the extra time from exceeding the statutory maximum.

Nevertheless, the Third Circuit remanded the case because §3147 is a sentencing enhancement and not a separate crime. While the enhancement must be submitted to the jury, that finding is not a conviction. Therefore, it was plain error to convict Mr. Lewis for violating §3147, as if it were a separate offense.

Bribery Prosecution: Instruction that coercion may bear on intent not required, sentence remanded for failure to consider sentencing disparity

2011-10-21T09:47:00.003-04:00

In U.S. v. Herman Friedman, No. 10-2235 (3d Cir., Sept. 28, 2011), the Third Circuit Court of Appeals affirmed Friedman’s conviction for bribery under 18 U.S.C. § 666(a)(2), but vacated and remanded for resentencing based on procedural unreasonableness.

Friedman owned a residential apartment building with 16 rented apartments, but after a routine inspection, a building inspector issued a Notice of Violation because only 15 units were legal. Although Friedman could apply for a variance, he faced a $500 per day penalty while his application was pending. So, Friedman arranged to pay a construction code official $5000 to overlook the violation. Unfortunately for Friedman, the code official, who had been caught taking bribes in an earlier investigation, was an FBI informant.

The Court rejected several defense arguments relating to the conviction; the most significant was an issue of first impression: whether the District Court abused its discretion in rejecting Friedman’s requested proposed jury instruction that coercion bears on the defendant’s state of mind.

Friedman’s proposed jury instruction would have charged the jury that coercion “may bear upon whether the defendant ever formed the intent required to commit the crime of bribery,” even when the defendant was not legally entitled to the act he was paying the official to perform. Friedman conceded that neither Supreme Court nor Third Circuit law (including the Third Circuit Model Jury Instructions) addressed this issue. But Friedman did cite for support the Second Circuit’s decision in United States v. Barash, 365 F.2d 395 (1966).

The Court found Barash inapposite because it found that coercion can bear on the intent required to commit bribery only in limited circumstances, where :“(1) the defendant is paying the official to perform an act to which he is legally entitled; and (2) the official threatens the defendant with ‘serious economic loss’ unless the bribe is paid.” Barash, 365 F.2d at 401-02. In contrast, Friedman’s proposed instruction did not limit the jury’s consideration of coercion to situations where the defendant was legally entitled to the act. The Court further noted that even if Friedman’s jury instruction were proper as a matter of law, the record provided no evidence of coercion.

In vacating and remanding Friedman’s 34-month sentence for resentencing, the Court noted , among other things, that the District Court had not considered explicitly the “unwarranted sentencing disparities” sentencing factor of 18 U.S.C. § 3553(a)(6). In his sentencing memorandum, Friedman noted the sentence of another person convicted of the exact same offense — involving the same $5000 bribe to the same code official — who received a sentence of three-years’ probation.

Summary by Ron Krauss

Money Laundering - Insufficient Knowledge of Intent to Conceal

2011-10-20T16:30:00.001-04:00

United States v. Richardson, – F.3d –, 2011 WL 4430808 (3d Cir. Sept. 23, 2011). Asya Richardson was the fiancee of Alton Coles, the leader of a drug ring responsible for selling large amounts of cocaine and cocaine base in the Philadelphia area between 1998 and 2005. In the summer of 2005, the couple bought a home together. The government charged Richardson with money laundering, under 18 U.S.C. § 1956(a)(1)(B)(1), on the theory that she had participated in the purchase of the home knowing that drug money was being used and with intent to conceal that fact. The court found the evidence insufficient to support her conviction.

Although the government proved that Richardson lied about various aspects of the transaction in the mortgage materials, there was little evidence that she did so for any reason other than to hide the couple’s bad credit. There was also little evidence connecting her to Coles’s suspicious financial transactions related to the house (e.g., structuring deposits for the down payment). Thus, the government could not prove the element that Richardson knew the transaction was designed to conceal the nature, location, source, ownership or control of the proceeds of a specified unlawful activity. In considering Richardson’s various arguments, the Court held that “proceeds” of drug trafficking are gross receipts, not profits, weighing in on a question left open in Supreme Court’s decision in United States v. Santos, 553 U.S. 507 (2008).

Summary by Sarah Gannett

Honest Services Fraud and Bribery convictions upheld

2011-09-23T13:21:00.003-04:00

In US v. Wayne R. Bryant and R. Michael Gallagher, Nos. 09-3243 & 09-3275 (click here) (Aug. 25, 2011), the Circuit affirmed the convictions of Bryant and Gallagher for honest services fraud and bribery in connection Gallagher, dean of a NJ medical school, giving Bryant, a state senator, a "low-show" job in exchange for Bryant funneling state money to the medical school. The Circuit rejected defense arguments that the government interfered with defense access to witnesses, that the evidence was insufficient, and that the jury instructions were defective.

Due Process/Interference with the Defense

The Court rejected a due process challenge to language that the government had placed on the face of every grand jury subpoena issued in the case, warning witnesses that “disclosure of the nature and existence of this subpoena could [and, in at least one case, “would”] obstruct and impede a criminal investigation . . . .” The defense contended that that language interfered with its access to witnesses by restricting the witnesses’ free choice whether to speak with the defense. Even though the warning language tracked the language of the obstruction of justice statute, and even though the U.S. Attorney implied a judicial imprimatur by placing the language on the face of the subpoenas, the Court characterized the language as a mere “request[] that witnesses practice discretion,” which “forthright citizens” would be inclined to heed. Thus it found no due process violation.

When defending its warning language in the district court, the U.S. Attorney’s Office for the District of New Jersey had cited an office policy of putting that language on every single grand jury subpoena. The Bryant Court criticized that blanket approach as “bad policy,” but preserved the prosecutors’ discretion to decide when to warn witnesses that they risk prosecution for obstruction if they speak with the defense.

Honest Services Fraud

The jury in Bryant was instructed solely on a bribery theory of honest services fraud, which survived the Supreme Court’s 2009 Skilling decision. Thus, the defense challenged the contours of the bribery theory, with respect to evidentiary insufficiency and instructional error.

In sum, the Court reaffirmed that honest services fraud bribery requires a quid pro quo exchange of a thing of value for an official act; that is, an intent to influence an official action (by the payor) and to be influenced (by the payee). It found the evidence plainly sufficient, and declined to adopt a more restrictive interpretation of bribery in light of Skilling. On the latter point, it rejected a defense challenge to the “stream of benefits” (or “retainer”) theory of bribery. The Court also endorsed, for the first time, an instruction that permits conviction in the presence of a “dual purpose” for the challenged payments. That is, a payor who makes a payment with the intent to influence official action is guilty even if he also intends to compensate the payee for legitimate work. The Court does not appear to have intended to use “dual purpose” to dilute the requirement of a quid pro quo, however. It referred to the secondary purpose as an “additional hope” of receiving legitimate work – in addition, that is, to the required corrupt intent to influence official action. Thus “dual purpose” will likely function in the future as another in a string of engraftments to the honest services fraud instruction that tell juries what is not a defense, rather than what the government must prove.
Section 666 Bribery

The Bryant Court declined to reach the most significant open issue in this circuit with respect to Section 666 bribery: does it require a quid pro quo exchange? Because the Court found that the jury instructions did require an exchange, it did not have to decide whether omitting an exchange was error.

The defense had contended that the jury instructions improperly substituted the mere temporal overlap of payment and official action for the required exchange, by using the phrase “while intending to influence [or to be influenced],” “while” being a temporal concept rather than a causal one. The Court held that the inclusion of the word “while” did not dilute the central concept of exchange that the intent language embodies.

Mail Fraud in Connection with Pension

The Court also addressed several arguments related to “traditional” mail fraud, in connection with counts alleging that Bryant had defrauded the New Jersey Board of Pensions and Benefits. Here the Court left open another significant issue: whether to join other circuits in rejecting the doctrine of mail fraud convergence. The doctrine requires proof that the defendant made a false statement to the actual victim. Finding that Bryant had in fact made a false statement directly the victim, the Court declined to decide whether convergence is required.

A practice note on this point: the government typically argues that the circuit already rejected mail fraud convergence in United States v. Olatunji, 872 F.2d 1161 (3d Cir. 1989), even though (as the defense contended in Bryant) any such ruling in Olatunji would have been dicta. Bryant makes clear that the circuit views the issue as open.

47 year prison terms affirmed for brothers convicted of Hobbs Act robbery of local drug dealer

2011-09-22T11:02:00.004-04:00

Brothers Barron and Barry Walker were convicted after trial of various offenses including drug trafficking, firearm and robbery charges. Each was sentenced to a prison term of 47 1/2 years. On appeal, the brothers challenged their convictions and sentences on multiple grounds, including improper joinder, sufficiency of the evidence, improper expert testimony, and an alleged Brady violation. The Third Circuit, in United States v. Walker, 10-3090 (3d Cir. Sept. 13, 2011), quickly disposed of the severance claims, holding that joinder of all counts against both brothers was proper, despite the inclusion of two escape-related charges solely against Barry Walker, where the escape charges arose directly from the earlier drug, conspiracy and gun charges against both brothers. Nor, according to the Third Circuit, did the district court abuse its discretion in declining to grant Barron Walker's motion to sever his trial from his brother's trial where the issues were uncomplicated, the trial lasted only four days, included only two defendants and encompassed only three distinct episodes of criminal conduct.

With regard to the sufficiency of the evidence on the 18 U.S.C. § 924(c) charge (use of a firearm in furtherance of drug distribution), the Court found that the testimony of the confidential informant and a cooperating co-defendant, while not overwhelming, was sufficient to sustain the convictions. The witnesses testified that they observed Barron and Barry Walker arrive together in the same vehicle, that Barron had cocaine in his possession, and that Barron and Barry jointly made a cocaine sale while Barry wore a gun on his hip.

Next, the Court addressed the brothers' challenge to the government's expert on cocaine trafficking. In order to support the interstate commerce element of the Hobbs Act robbery charge, the government's expert, a 30 year law enforcement officer and narcotics investigator, testified that cocaine is manufactured outside of Pennsylvania and transported into the State. The Walkers' argued that the expert's testimony was unreliable because they could have possessed synthetic cocaine and the expert was unable to distinguish between synthetic and plant-based cocaine. The Third Circuit rejected this argument and agreed with the district court's conclusion that the expert's method for reaching his conclusions was reliable. It found that the expert's opinions were based on his personal experiences interacting with drug traffickers and law enforcement personnel over 30 years. Accordingly, the Court concluded that the expert's testimony was properly admitted.

With regard to the sufficiency of the evidence on the Hobbs Act robbery charge, the Third Circuit held "that by presenting evidence that (1) the Walkers attempted to rob a cocaine dealer of a de minimis amount of drugs and cash, and (2) the drug dealer's cocaine originated outside of Pennsylvania, the government presented sufficient evidence" to satisfy the interstate commerce element of the Hobbs Act. The Court acknowledged that the use of the Hobbs Act to prosecute "what could be considered a fairly garden-variety robbery gives us some pause," especially in light of the extremely harsh sentences that resulted. Nevertheless, the Court "trust[s] and expect[s]" that federal prosecutors will exercise their broad prosecutorial discretion "to make the most effective use of federal resources, to avoid supplanting the state criminal systems that quite ably address classic state-law crimes, and to seek just and appropriate criminal sentences in the course of their representation of the United States."

Finally, the Third Circuit addressed the defendants' claim that the government withheld exculpatory evidence material to their defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court found that the government' s failure to disclose information regarding an incident where their confidential informant was found to be in possession of 0.18 grams of crack cocaine was not material to the instant prosecution where the CI was not the only witness against the defendants and had already been thoroughly impeached by the defense team.

For the foregoing reasons, the Third Circuit affirmed the convictions and sentences of both Barron and Barry Walker.

General Criminal Venue Provision Applies When Part of Offense Committed in US & Illicit Sexual Conduct Outside the US Statute Constitutional

2011-09-19T10:38:00.003-04:00

In United States v. Pendleton, No. 10-1818, September 7, 2011, the Court of Appeals considered: (1) whether the general criminal venue provision of 18 U.S.C. § 3238 applies when a defendant commits part of his offense inside the United States; and (2) whether 18 U.S.C. § 2423(c) and (f)(1) of the PROTECT Act, which criminalize noncommercial illicit sexual conduct outside the United States, are a valid exercise of Congress’s power under the Foreign Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3).

In 2005, Thomas Pendleton boarded a plane in New York City bound for Hamburg, Germany. Six months after his arrival there, he sexually assaulted a 15-year-old boy. German authorities arrested him, and a jury in Hamburg found him guilty of "engaging in sexual acts with a person incapable of resistance." After serving nineteen months in a German prison, Pendleton returned to the United States, where he was arrested and indicted in the District of Delaware on one count of engaging in noncommercial illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c) and (f)(1).

Although Pendleton’s offense began when he initiated foreign travel by boarding a plane bound for Germany in the Eastern District of New York, he "committed" the offense when he engaged in a illicit sex act in Germany. Because the criminal conduct was "essentially" foreign, the district court did not err in applying the general criminal venue provision, and venue was proper in Delaware.

As for the constitutionality of 18 U.S.C. § 2423(c), because the jurisdictional element in this section has an "express connection" to the channels of foreign commerce (the first prong of the Lopez three part framework to determine whether a statue has a constitutionally tenable nexus with foreign commerce), it is a valid exercise of Congress’s power under the Foreign Commerce Clause.

Use immunity for defense witness

2011-09-09T16:23:00.002-04:00

In US v. Jamaal L. Mike, No. 10-1394 (Aug. 23, 2010) (click here), the 3d Circuit held that the district court properly denied a defense request for use immunity for a defense witness because the proffered testimony was not "clearly exculpatory" in view of the evidence undercutting both the proffered testimony and the defense theory of the case. (The Court also addressed two other issues unique to the Virgin Islands that are not reviewed here.)

Mike was charged with aiding and abetting the receipt of a gun acquired outside his state of residence. The government's evidence was that another person, Francis, purchased an AK-47 rifle in Florida and had it shipped to a false name in the Virgin Islands. Mike arranged with two others to retrieve it from the Post Office, having them supply the false name. They were arrested once they placed the package in the car. Francis was also arrested, and he pleaded guilty. But he told agents during plea negotiations that Mike and the others did not know what was in the package. Mike then asked the court to grant Francis use immunity, and the court denied the request. Mike was convicted after a trial.

On appeal the 3rd Circuit upheld the conviction, ruling that Francis's testimony would not have been "clearly exculpatory." Following US v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court explained that the right to Due Process includes the right to have "clearly exculpatory" evidence presented to the jury, and this must include the right to compel the testimony of a defense witness who asserts the Fifth Amendment right to remain silent. "[T]he only way to compel this evidence is to grant [use] immunity." For this reason, courts have the inherent judicial power to grant defense witnesses use immunity. Smith imposed five conditions that must be met: "[1] immunity must be properly sought in the district court; [2] the defense witness must be available to testify; [3] the proffered testimony must be clearly exculpatory; [4] the testimony must be essential; and [5] there must be no strong governmental interests which countervail against a grant of immunity." Id. at 972.

The principal issue here concerned condition #3 - whether the evidence was "clearly exculpatory." In US v. Thomas, 357 F.3d 357 (3d Cir. 2004), the Court explained that use immunity may be denied when the exculpatory nature of the testimony is "at best speculative... because a credibility determination would [be] required in order to determine which parties are more credible." Id. at 365-66. The Court here ruled that Francis's testimony would not have been clearly exculpatory because there was "evidence in the record undercutting the testimony Francis might have given and Mike's theory of the case." A juvenile who was with Mike testified that Mike gave him the false name on a slip of paper to use to pick up the package, and also that Mike wanted him to take the rap for the charge since a conviction for him would only mean a stay in a Boy's Home. In addition there were numerous phone calls between Francis and Mike on the days the AK-47 was purchased, the day it was sent, and the day it was picked up. Concluding that the jury here was confronted with "more than just a credibility determination," the Court held that Francis's testimony was not clearly exculpatory.

Chief Judge McKee dissented, stating, "I do not believe our precedent can be interpreted to preclude use immunity for Francis merely because his credibility would have been in issue had he testified. Such a broad prohibition of use immunity would be tantamount to eliminating that tool altogether, even when a witness's testimony was required to satisfy the requirements of due process, because credibility is always an issue whenever any witness testifies.... Here, the district court's ruling deprived Mike of the only witness who could testify about Mike's knowledge of the contents of the package he received."

Practice note: This decision leaves the definition of "clearly exculpatory" very murky. Chief Judge McKee is surely right in stating that since the jury must always make a credibility determination regarding a witness, that fact cannot preclude use immunity. Likewise, the fact that the government has other evidence contradicting the defense theory of the case also cannot be a basis for precluding use immunity. If it were, then use immunity would seem to be available only when the government's case was insufficient.

Self-representation; CCE: and 851 notice

2011-09-09T15:03:00.000-04:00

In US v. Prince Isaac, No. 08-4755 (Aug. 23, 2011) (click here) the 3rd Circuit held:

(1) Defendant who was representing himself was not denied his 6th Amendment right of self-representation by judge's failure to include him in two side-bar conferences (at which stand-by counsel did participate) since defendant never objected and seemed to acquiesce in stand-by counsel's participation;

(2) Instruction on CCE was error, as conceded by the government, because several of the counts it listed as counts that could qualify as the predicate drug distribution felony did not qualify; but error, to which there was no objection, did not rise to plain error because jury found defendant guilty on all the drug distribution counts, thus easily satisfying this element;

(3) The requirement of written notice of a prior conviction under 21 USC 851 (to enhance the mandatory sentence) is jurisdictional, and the lack of actual notice prior to trial in this case constituted plain error. "[T]he requirements set out in 851 are mandatory and a district court may not impose an enhanced sentence unless the defendant has been notified of the 'strikes' in compliance with these provisions."

Fumo Sentencing Errors

2011-09-09T14:19:00.000-04:00

In US v. Fumo and Arnao, Nos. 09-3388 & 09-3389 (Aug. 23, 2011) (click on link to see decision), the Third Circuit upheld Fumo's conviction, but reversed the sentences for both Fumo and Arnao, finding a number of sentencing errors. The holdings of broadest significance were that the district court judge failed to follow the 3-step sentencing process, in particular the 2nd step, in which he was required to identify the new Guidelines range after granting a departure, and that he failed to specify whether he was granting a departure or a variance.

Background:
Fumo and Arnao were charged with multiple counts of fraud, tax evasion and obstruction of justice, arising from "one of the larges political scandals in recent state history." Fumo was a powerful PA state senator, and Arnao was a Senate employee. Fumo required Senate employees to attend to his personal needs and political interests, including housekeeping and political fundraising. He also arranged state contracts for friends and supporters. In order to conceal his personal use of public funds, he provided false job descriptions and failed to disclose the nature of their work. He also funneled state money to a non-profit he founded, Citizens Alliance, for which Arnao became the director. Fumo and Arnao used Citizen Alliance funds for their personal benefit and for political purposes, in violation of its non-profit status. Fumo also used his position on the board of Independence Seaport Museum to take pleasure cruises on its yachts and to obtain other personal benefits. When reporters with the Philadelphia Inquirer began investigating, Fumo had his emails deleted, and later "wiped" his computers to prevent forensic analysis. Following a lengthy trial, Judge Buckwalter sentence Fumo to 55 months and Arnao to one year in prison. Both sentences were substantially below the Guidelines ranges.

Trial issues (Fumo's cross-appeal):
1) Evidence the government presented regarding the state Ethics Act was relevant and properly admitted in light of Fumo's defense that there were no rules or laws that barred use of Senate resources for personal benefit. The Ethics Act was relevant to show that Fumo was acting to deceive the Senate and that he had fraudulent intent. The judge made clear to the jury that Fumo was not on trial for violating the Ethics Act.
2) Juror's comments on Facebook and Twitter during deliberations did not require reversal because they did not prejudice Fumo, and the postings were vague and "virtually meaningless." Judge Buckwalter, moreover, provided excellent intructions to the jury, which the Circuit "enthusiastically endorse[d]", focusing on the importance of not consulting websites or blogs or posting case information on social media.
3) Defense counsel's allegation that another juror learned during trial about Fumo's past overturned conviction was based on a double-hearsay affidavit and did not establish "substantial prejudice." Opinion sets out 6-factor test for substantial prejudice.

Sentencing Issues (Government's appeal):
1) Judge miscalculated the amount of loss. (a) The government made out a prima facie case of $1 million loss due to Fumo arranging for overpayment of Senate employees, and Fumo did not show this estimate was inaccurate. (b) Judge abused his discretion in not ruling on whether loss should include $150,000 contract awarded to Arnao's husband for no services. (c) Judge should have included in loss amount the lost rental value and unnecessary improvements made on a property Fumo induced Citizens Alliance to purchase and furnish for his use.
2) Judge should have applied 2-level enhancement for acting on behalf of a charitable organization USSG 2B1.1(b)(8)(A), based on Fumo's misrepresentation that he was acting on behalf of Citizens Alliance, since Fumo acquired funds from PECO for Citzens Alliance, intending to divert them to his personal use.
3) Judge should have applied enhancement for use of sophisticated means, USSG 2B1.1(b)(9)(C), since Fumo's use of sham entities to conceal flow of funds to Fumo qualified as sophisticated means.
4) Judge erred by not calculating the final Guidelines range, in Step 2 of the sentencing process, after granting what the judge initially said was a departure for Fumo's good works. (The 3-Step sentencing process is: (1) calculate the Guidelines range: (2) address any departure arguments and specify effect on Guidelines range of any departures granted; and (3) impose sentence after consideration of 3553(a) factors and consideration of any arguments for variances.)
5) Judge erred by failing to make clear whether he had granted a departure or a variance, since he called it both at various times.
6) Judge correctly included pre-judgement interest in restitution, since this is permitted under the VWPA and is compensatory in nature.
7) Judge gave a sufficiently thorough explanation for the variance below the Guidelines in Arnao's case to show that he had fully considered the government's arguments and the statutory factors.

The Fair Sentencing Act Applies to All Defendants Sentenced on or After August 3, 2010, Regardless of When the Criminal Conduct Occurred

2011-08-22T18:53:00.002-04:00

In United States v. Dixon, No. 10-4300, the Third Circuit held that the Fair Sentencing Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010) (“FSA”), signed into law on August 3, 2010, applies to all defendants sentenced after that date, regardless of when the criminal conduct occurred. The FSA reduced the crack/powder ratio to approximately 18:1, thus triggering a mandatory minimum sentence of 5 years for defendants convicted of possessing 28 grams of cocaine and 10years for possessing more than 280 grams. The Anti-Drug Abuse Act of 1986 (“1986 Act”) previously mandated 5 and 10 year mandatory minimum sentences for possession of more than 5 and 50 grams of crack, respectively. In passing the FSA, Congress sought to ameliorate the disparities between crack and powder cocaine offenders. Dixon was one such defendant whose criminal conduct predated the FSA, but whom was sentenced after its passage.

Section 8 of the FSA gave the United States Sentencing Commission emergency authority to promulgate new drug guidelines compliant with the Act. The Commission responded by promulgating new, FSA-compliant guidelines implementing the 18:1 ratio, which took effect on November 1, 2010. Section 10 of the Act also directed the Commission to study and submit a report to Congress outlining the impact of the FSA on federal sentencing law. Later, on June 30, 2011, the Commission decided to apply the new guidelines retroactively to defendants sentenced before the FSA was passed. But, as the Third Circuit explained in a footnote, this has no bearing on the applicability of statutory mandatory minimum sentences. It should also be noted that after oral argument, the government changed its position on the issue and submitted a Rule 28(j) letter indicating that it now supports application of the FSA to defendants in Dixon’s position.

The main issue was whether the General Saving Statute, 1 U.S.C. § 109, precludes application of the FSA to defendants sentenced after its passage. Under the Saving Statute, the mandatory minimum sentences in the 1986 Act remain in force unless the repealing Act expressly provides otherwise. The FSA does not mention retroactivity in its text. But the Supreme Court has explained that the Saving Statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908) (emphasis in Dixon). And in Dixon, the Third Circuit held that the necessary or fair implication of the FSA’s text is that Congress meant for it to apply to defendants sentenced after its passage, for three reasons.

First, Section 8's emergency directive to the Commission to “make such conforming amendments” to the guidelines that would “achieve consistency with other guideline provisions and applicable law” evinces Congress’s intent for the new mandatory minimum sentences to apply to defendants sentenced after the FSA’s passage. The “applicable law” is the FSA. Further, the Sentencing Reform Act of 1984 directs courts to sentence defendants under the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). So Congress knew the amended guidelines would be in effect when defendants in Dixon’s position were sentenced. Section 8's goal of achieving consistency between the guidelines and the statute shows its intent for the new mandatory minimums to apply. The Court reasoned that it would be nonsensical to apply emergency guidelines, while at the same time imposing mandatory minimums that diminish the impact of those new guidelines. Indeed, the old mandatory minimums would still control in many cases. Congress’s urgency in directing the Commission to promulgate emergency guidelines also demonstrates its intent for the new mandatory minimums to apply going forward. Finally, the Court reasoned, “[r]efusing to apply the FSA to defendants like Dixon would lead to a troubling result in which the Act would have little real effect for years, until the statute of limitations runs on pre-August 3, 2010 conduct.”

Second, Congress’s directive to the Commission in Section 10 of the FSA to study and report on the effects of the FSA further evinces its intent. “If the FSA’s provisions only apply to post-August 3, 2010 conduct, defendants sentenced in the coming years will be subject to the mandatory minimums in the 1986 Act. Consequently, during the time period in which the Sentencing Commission is supposed to produce a report on the effects of the FSA, the Act often will be inapplicable.” Such a report would be “incomplete” and “incomprehensible,” such that Congress must have meant for the new mandatory minimums to apply to defendants sentenced after the FSA’s passage.

Finally, the Third Circuit found the FSA’s title and stated purpose compelling. The Act was passed to restore fairness to federal sentencing. Congress simply could not have meant for district courts to continue imposing sentences that are unfair over the next five years until the statute of limitations runs on all crack offenses occurring before August 3, 2010. Accordingly, the FSA’s “plain import” directly conflicts with an earlier statute - the Saving Statute’s preservation of the old mandatory minimum sentences from the 1986 Act. As such, the FSA controls and all defendants sentenced after the FSA’s passage are subject to its reduced mandatory minimum sentences, regardless of when their criminal conduct was committed.

Conviction Vacated for Erroneous Instruction on Intent

2011-08-17T17:55:00.004-04:00

In United States v. Waller, No. 10-1321 (Aug. 16, 2011), the Court holds that it was reversible Doyle error for a district court to instruct the jury that it could consider, among other things, "any statements made or omitted by the defendant” in deciding whether he had the intent to distribute a controlled substance.

Mr. Waller was found in possession of 52 stamp bags of heroin marked “Shoot, Shoot Them,” bundled into four groups of ten and one group of twelve. At trial, there was no dispute as to possession, but only as to whether the heroin was intended for personal use or distribution. There was circumstantial evidence from which the parties urged opposite inferences: for example, the defendant's possession of a gun but no cash. There was no direct evidence bearing on intent. The Court holds that the instruction permitting consideration of statements “omitted by the defendant” improperly invited the jury to infer intent from the defendant’s post-arrest, post-Miranda warnings silence, in violation of his right to due process and the rule announced in Doyle v. Ohio, 426 U.S. 610 (1976).

Under the circumstances, the government could not carry its “decidedly heavy burden” to show that the constitutional error was harmless. “It is rather easy to see how the erroneous instruction might, in fact, have contributed to the jury’s verdict: in the face of equivocal evidence of Waller’s intent, the jurors were invited by the District Court to consider the statements that he failed to make.”

The opinion includes a discussion distinguishing the “statements made or omitted” language from the Third Circuit’s Pattern Instruction. The Pattern Instruction directs the jury that it may consider “what the defendant said, what the defendant did and failed to do, how the defendant acted, and all other facts and circumstances….” The Court reads this model charge to permit “the jury to take into account only those statements actually made by the defendant, as well as the defendant’s failures to act,” but “does not invite the jury to consider statements omitted by the defendant, or otherwise comment on the defendant’s failure to speak.” (The emphases are the Court’s.)

Officer's Reliance on Warrant Insufficient to Support Good Faith Exception to Exclusionary Rule

2011-08-16T19:13:00.007-04:00

In People of the Virgin Islands v. Tydel John, No. 09-4185 (Aug. 15, 2011), the Court holds 2-1 that the good faith exception to the exclusionary rule does not apply — and that evidence must therefore be suppressed — when an officer obtains and executes a warrant for child pornography by means of an affidavit representing that people who commit contact sex offenses against children customarily keep evidence of such crimes, including “photographs,” in their homes.

The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”

The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”

Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.

In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.

Evidence Insufficient to Sustain Conviction for Conspiracy to Transport Firearms

2011-08-16T15:14:00.001-04:00

In United States v. Tyson, No. 09-3487 (3d Cir, Aug. 3, 2011) , the defendant was found guilty by jury of multiple firearms-related offenses, under both federal and Virgin Islands law. Specifically, the federal counts charged conspiracy to transport firearms from Tennessee to the Virgin Islands, and related gun trafficking offenses. However, the District Court granted the defendant's motion for judgement of acquittal as to the federal counts.

The Third Circuit concluded that, while the evidence was sufficient to support the defendant’s conviction for transporting and dealing firearms without a license, the evidence was insufficient to sustain his conviction for conspiracy to transport firearms. Explicitly rejecting the “rule of consistency” in multi-defendant conspiracy trials, the court concluded instead that the evidence simply failed to prove an illegal agreement existed between the defendant and the only co-conspirator identified by the government. The court reasoned that the government’s evidence of “unusual and suspicious activity” showed only that the defendant and the alleged co-conspirator engaged in “parallel conduct,” not the requisite concerted action to further a common goal.

The Third Circuit also upheld the defendant’s conviction for transferring a firearm with intent to commit a crime. The court noted that mens rea requirement of 18 U.S.C. § 924(b) may be satisfied by showing that either the defendant himself intended to commit a crime with the firearm, or he knew or had reasonable cause to believe a crime would be committed with the firearm. Citing United States v. McBane, 433 F3d. 344, 349 n.9 (3d Cir. 2005), the court interpreted the phrase “reasonable cause to believe” to require proof that, under the factual circumstances of the case, either a reasonable person would have believed or it would have been reasonable for the defendant himself to believe. The Third Circuit concluded that the defendant’s overall sale process sufficiently proved that he had reasonable cause to believe that a crime would be committed with the firearms he transferred from Tennessee to the Virgin Islands.

No Reasonable Expectation of Privacy in Common Area of Multi-Unit Dwelling

2011-08-16T15:09:00.001-04:00

In United States v. Correa, No. 10-2199 (3d Cir., Aug. 2, 2011) , law enforcement officials executed arrest warrants for two associates an escaped inmate at a multi-unit dwelling. When the officers arrived at the building, the exterior front door was locked. As a result, one of the officers climbed through a partially opened window and unlocked the door for his colleagues. Once inside, the officers encountered the two individuals they initially sought as well as the defendant in the common stairwell leading to the basement. During the search incident to his arrest, the defendant alerted his arresting officer that he possessed a firearm. The defendant challenged his arrest in the common area of the multi-unit dwelling as the fruit of an unlawful entrance and search, and he sought the suppression of the firearm and his subsequent statement. The Third Circuit disagreed, extending its ruling in United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992), to rule that a resident of a multi-unit dwelling has no objectively reasonable expectation of privacy in the common areas of the dwelling, regardless of whether the exterior door is regularly locked or unlocked. The court reasoned that no objectively reasonable expectation of privacy can exist in the common area of multi-unit dwelling where all of the residents are permitted to access, as well as their guests. The court also determined that a locked exterior door does not serve to protect the privacy interests of the residents, but rather serves to provide them with security. The court ultimately ruled that, as the defendant had no objectively reasonable expectation of privacy in the common area of the multi-unit dwelling, he lacked standing to challenge the law enforcement officials' entrance and search. Therefore, no Fourth Amendment violation occurred.

Language Barrier May Qualify as an Extraordinary Circumstance Warranting Equitable Tolling of AEDPA’s One Year Statute of Limitations.

2011-07-15T15:47:00.000-04:00

In Pabon v. Superintendent S.C.I. Mahanoy, No. 08-1536, Petitioner Angel Pabon challenged the denial of his habeas petition, as out of time. Following the denial of his motions for post conviction relief at the state level, Pabon filed a pro se habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §2254. The habeas petition was based on a violation of the Confrontation Clause. Specifically, the state trial court admitted into evidence the confession of one of the codefendants, who did not testify at trial. The District Court dismissed Pabon’s petition because it was not timely under AEDPA’s one year statute of limitations, as set forth in 28 U.S.C. §2244. Conceding that his petition was out of time, Pabon argued that his petition should still be considered under the doctrine of equitable tolling, an argument the District Court rejected. The Third Circuit granted a certificate of appealablity (COA) to determine the question of timeliness and equitable tolling.

In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.

The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.

Court Adopts Factors to Determine Exceptions to Waiver of Issues Not Raised in Opening Brief, Remands for More Narrowly Tailored Internet Restrictions

2011-06-09T14:33:00.002-04:00

In United States v. Albertson, No. 09-1049, the Third Circuit considered yet again whether a defendant’s supervised release term and special conditions were reasonable under 18 U.S.C. § 3553(a) as incorporated by 18 U.S.C. § 3583(d)(1). Albertson pled to one count of receiving child pornography and received a sentence of 60 months in prison (the mandatory minimum term of imprisonment), along with a 20 year supervised release tail with 8 special conditions. Albertson challenged the length of his supervised release term as well as special conditions that: (1) banned him from associating with children under the age of 18 (other than his children) without his probation officer’s prior approval, (2) banned him from using a computer with internet access without prior written approval of the probation department, and (3) required him to submit to an initial inspection and subsequent inspections of his computer and to allow probation to install monitoring or filtering software onto his computer.

The Court first addressed waiver, because Albertson only challenged the length of his supervised release term in his initial brief. His reason for only raising the challenges to the special conditions in his reply brief was that the Third Circuit issued its opinion in United States v. Miller, 594 F.3d 172 (3d Cir. 2010) a day after his initial brief was filed. The Court noted that normally issues are waived if not raised in the appellant’s opening brief, but there are exceptions in extraordinary circumstances. Relying on the First Circuit’s opinion in In re Kane, 254 F.3d 325, 331 (1st Cir. 2001), the court adopted factors to determine what constitutes extraordinary circumstances. The factors are: (1) whether there is some excuse for the failure to raise the issue in the opening brief, (2) how far the opposing party would be prejudiced, and (3) whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system. Under these factors, the Third Circuit found extraordinary circumstances existed even though Albertson’s reason for failing to initially raise the issue was not compelling in light of the body of case law on computer-related conditions of supervised release that existed before Miller. The most compelling factor was that ignoring overbroad internet restrictions contrary to clear Third Circuit precedent would undermine confidence in the judicial system.

The Court in Miller enunciated 3 factors relevant to assessing whether a supervised release condition is overbroad: (1) the scope of the condition with respect to its substantive breadth; (2) the duration of the condition; and (3) the severity of the defendant’s conduct - particularly whether the defendant used a computer to solicit or personally endanger children. The Albertson court added a fourth factor: the interplay between the prison time served and the term of supervised release, in light of the fact that often times district courts may find that a longer term of supervised release should follow a shorter prison term. The Court also found it relevant to consider the proportion of a supervised release restriction to the total period of restriction, including prison time.

Under these factors, the blanket ban on internet use without probation’s approval was “sweepingly broad” because Albertson never used the internet “as an instrument of harm” and because modern life is extremely difficult without access to the internet. Second, the Court found the duration of the conditions - 20 years - should be considered in light of his age. At 42 years old, Albertson’s 20-year restrictions were basically of the same length as the defendant’s lifetime restrictions in Miller (assuming an 80-year life expectancy - Miller was 60 years old when sentenced). Third, Albertson did not use the internet to actively contact or solicit contact with children. Albertson’s short incarceration period did suggest, however, that a lengthy supervised release tail was appropriate. As such, the Court upheld the 20 year supervised release term, but found the internet restriction condition overbroad and remanded to the district court to consider a more narrowly tailored internet use restriction. The Court also explained that the computer monitoring condition would be perfectly acceptable if paired with a more narrowly tailored and reasonable internet use restriction, so it remanded for reconsideration of that condition in connection with the internet use condition. Further, in light of the fact that Albertson had been charged with molesting his stepdaughter at the time of his federal sentencing (and later convicted), the Court upheld the association with minors condition.

De Novo Sentencing Applies After Court Vacates Part of Interdependent Sentence, Remand for Full Consideration of Post-Sentencing Rehabilitation

2011-06-09T14:25:00.003-04:00

In United States v. Diaz, No. 10-3337, the Third Circuit considered whether the district court correctly resentenced the defendant on remand after one count of an interdependent sentence was vacated. Diaz was convicted of one count of possession with intent to distribute heroin and two counts of possessing a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). The Third Circuit reversed and remanded for resentencing, holding that Mr. Diaz’s double jeopardy rights were violated because a second § 924(c) count must be based on a separate predicate drug offense. On remand, the defense argued that the district court should simply reduce the sentence by 120 months - the sentence originally associated with the vacated § 924(c) count. The district court treated its original sentence as interdependent, and held that resentencing de novo was appropriate so long as the Third Circuit did not direct otherwise. The district court considered the fact that the defendant was facing one less conviction. The defense also presented evidence of Diaz’s post-sentencing rehabilitation. The district court recognized Diaz’s post sentence rehabilitation, but explained that it was not a major factor in its new sentence. Accordingly, the district court reduced Diaz’s sentence by 80 months.

On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.

The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.

Enhancement for Counterfeit Obligations Based on Face Value, Not Intended Loss

2011-06-08T14:38:00.004-04:00

In United States v. Wright, No. 10-2970 (3d. Cir. June 1, 2011), the Third Circuit vacated a sentence of twenty months imprisonment and remanded for resentencing. The court recognized the facts of this case could never have been envisioned by the Sentencing Commission. Wright and a man he falsely identified as his brother attempted to sell $120,000 worth of fake U.S. currency for $60,000 to a small business owner. Wright and his "brother" told the business owner that their father was a politician and banker in Sierra Leone, who had recently been assassinated, and that he and his brother fled to the United States as refugees. They claimed to have brought with them millions of dollars in U.S. currency, that had been provided to Sierra Leone by the U.S. as aid. They claimed that the currency had been dyed black in order to prevent the use of the currency by rebels who might have intercepted it. In a meeting with the business owner, Wright and his "brother" demonstrated the process of cleaning the black papers with special solvent. After the two black papers they used for demonstration were "sloshed" in the solvent, they were revealed to be two genuine $100 bills. Distrustful of the arrangement, the small business owner notified the U.S. Secret Service. They arranged a second meeting, where the business owner told Wright that he was bringing another prospective buyer. At this time, they agreed to sell $200,000 worth of currency for $100,000. During this meeting, they again performed the demonstration, revealing two genuine $100 bills.

Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.

Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.

The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.

Mere Presence of Firearm Not Sufficient to Warrant Four-level Enhancement under U.S.S.G § 2K2.1(b)(6)

2011-05-19T13:03:00.001-04:00

In United States v. West, No. 09-2860 (3d Cir., April 29, 2011), the defendant challenged the four-level enhancement applied to his sentence for possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(6). He also challenged the sentencing court’s finding that a recent subsequent arrest for gun and drug possession was relevant conduct to the stolen firearm offense.

In West, the defendant was arrested on two separate occasions in 2007. During a traffic stop on February 28, 2007, police found cash, a small undetermined amount of marijuana and a gun in the glove compartment. Another firearm was discovered later in a backpack in the trunk of the car. The defendant admitted possession of the cash and marijuana but denied possession of the firearms. Police later determined that the gun found in the trunk had been stolen. On July 27, 2007, a firearm was discovered in the rented apartment of the defendant’s girlfriend during a routine fire-code inspection. An undetermined amount of cash and marijuana also were discovered during a search of the apartment. Police later determined that this gun also had been stolen. The defendant subsequently pled guilty to possession of the gun discovered in the trunk of his car in February, but refused to plead guilty to possessing any other firearms.

The District Court ruled that the defendant possessed, either actually or constructively, both the firearm discovered on the trunk of the car in February and the gun found in the apartment in July. However, the court ruled that the defendant did not possess the gun found in the glove compartment of his car. The court concluded that the close proximity of the firearms emboldened the defendant’s possession of the marijuana on both occasions. The court determined that the defendant’s possession of marijuana was a felony offense and that his possession of the firearms facilitated his commission of the felony drug offense. Consequently, the court applied the four-level enhancement provided under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. The court also determined that the July gun possession was relevant conduct of the February gun possession, pursuant to U.S.S.G. § 1B1.3.

The Third Circuit disagreed. Initially, the Third Circuit recognized that the relevant conduct standard requires a showing that the offenses at issue are sufficiently similar, regular and temporally proximate. The court determined that while the February and July incidents were close temporally, the “underdeveloped factual record” precluded it from concluding that the offenses were sufficiently similar and regular. Specifically, the court found that the presence of cash and a small undetermined amount of marijuana near the firearms in both incidents, alone, merely showed that the offenses were similar but isolated and unrelated events. The District Court’s finding otherwise was clearly erroneous.

The Third Circuit also determined that the phrase “in connection with,” as used in § 2K2.1(b)(6), means that the firearm facilitates or has the potential to facilitate the felony offense. In recognizing the distinction between drug trafficking and simple drug possession offenses, the court interpreted Application Note 14 of § 2K2.1 to provide that, while the firearm necessarily facilitates a drug trafficking offense, the sentencing court specifically must find that the firearm facilitated a simple drug possession offense. The Third Circuit concluded that, where the predicate offense is simple drug possession, the mere proximity of the guns to the drugs is insufficient to establish the facilitation requirement under § 2K2.1(b)(6). The Third Circuit ultimately ruled that the sparsity of facts in the record did not support the sentencing court’s conclusion that the firearm found in the trunk of the car facilitated the defendant’s possession of the marijuana found in the glove compartment. The court reasoned that simultaneous possession of the gun and drugs is not enough. The Third Circuit remanded the case to allow the District Court to make additional findings regarding the facilitation requirement under § 2K2.1(b)(6).

Court upholds Iranian trade sanctions regime in face of broad constitutional challenges

2011-05-19T12:28:00.012-04:00

In United States v. Ali Amirnazmi, No. 10-1198 (May 13, 2011), the Court affirms on all counts a chemical engineer's conviction for marketing software to Iranian industrial enterprises. The 72-page slip opinion offers an intensive review of the historical development of subjects as varied as the unconstitutional delegation doctrine and the embargo on Iran. Responding to a series of nuanced and articulate defense challenges, the opinion addresses the authority of Congress to vest the Executive with power to define criminal sanctions; the status of “dynamic” software under laws protecting the free flow of ideas to and from embargoed nations; the application of the vagueness doctrine; the law of conspiracy; and the validity of subpoenas under Criminal Procedure Rule 17(c).

Judge Scirica, joined by Judges Barry and Vanaskie, confronts an intricate web of statutes and Treasury Department regulations defining the Iran embargo inaugurated by President Clinton’s executive order in 1995. The Court holds the governing congressional enactments to “meaningfully constrain” executive discretion to define criminal conduct incident to the embargo, and thus not to represent an unconstitutional delegation of Article I legislative authority.

The Court also rejects a challenge based on congressional inaction post-dating the governing enactment. Under the law, Congress “shall meet” every six months “to consider a vote on a joint resolution” that would end the embargo. Congress has not followed that directive. The political question doctrine and executive authority in the area of foreign relations form a backdrop to the Court’s analysis. But in a notable aside that would appear to refer tacitly to the judiciary’s role, the Court states that “such considerations do not preclude enforcing compliance with statutory dictates.” Not here, however. Reviewing distinct legislative developments, the Court observes that “far from being unaware or indifferent, in the case of Iran, Congress has clearly and consistently demonstrated its support of the Executive’s agenda.” Accordingly, inaction in derogation of the statutory mandate has not stripped the delegation of its validity.

The Court also holds that the “ChemPlan” software at issue—a “dynamic” tool capable of projecting demand under variables selected by the end user, and thus facilitating Iran’s industrial planning—is not exempt from the embargo under an exception by which Congress “sought to ensure the robust exchange of informational materials.” Notwithstanding some back-and-forth between Congress and the Treasury Department in this area, the Court holds that the Treasury Department’s establishment of a carve-out for material that is “not fully created and in existence at the date of the transactions” is a permissible construction of the informational-materials exemption.

Mr. Amirnazmi also attacked the “fully created and in existence” standard as unconstitutionally vague. In rejecting this challenge, the Court draws essential support from the exposition in Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982), which directs that “economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action and may clarify the meaning of the regulation by their own inquiry, or by resort to an administrative process.” In part by looking to the circumstances of inquiry that Mr. Amirnazmi in fact made of the Treasury Department, the Court rejects his vagueness challenge. A footnote suggests that other defendants might be able to prevail on vagueness challenges under other circumstances.

As to the law of conspiracy, the Court rejects a challenge predicated on the argument that conduct spanning from 1996 to 2008 consisted, if anything, in two conspiracies rather than one, with the earlier conspiracy falling outside the statute of limitations. The Court finds there to have been a single conspiracy despite evidence that representatives of the Iranian enterprises lost interest for a time in Mr. Amirnazmi’s software. The “temporary lull in sales” did not sever the requisite agreement among conspirators in light of Mr. Amirnazmi’s “continuous efforts to preserve and strengthen [his company’s] Iranian ties” and the “unaltered nature of the parties’ interests” before and after the limitations period.

Finally, the court rejects a challenge under Fed. R. Crim. P. 17(c) asserting that the government impermissibly used subpoenas as discovery devices. The contention was that the government, while formally listing scheduled trial dates for production of subpoenaed telephone recordings from the Federal Detention Center, “implicitly understood that the FDC would expedite its production of the requested evidence” so as to disclose the materials sooner. This could be expected because “the FDC habitually responds to subpoenas received from the United States Attorney’s Office” with “alacrity.” The Court holds the subpoenas valid in light of their compliance with the “facial requirements of trial subpoenas,” as “the record before us does not demonstrate … an impermissible discovery motive.”

General right to counsel with no temporal reference informs suspect he has a right to an attorney during questioning

2011-04-26T13:57:00.005-04:00

In United States v. Warren, No. 10-1598 (April 21, 2011), the Third Circuit affirmed denial of a motion to suppress statements and dismissed Warren’s claim that the government breached the plea agreement.

The Court analyzed whether the Miranda warnings given to Warren informed him of his right to have counsel present during questioning. The Third Circuit looked to the recent United States Supreme Court case Florida v. Powell, 130 S.Ct. 1195 (2010), for guidance. In Powell, the officer advised the suspect he had the right “to talk to a lawyer before answering any of our questions” and“to use any of these rights at any time you want to during this interview.” The Supreme Court reasoned that the combination of these statements reasonably conveyed the requirements of Miranda: the first statement advised when the right to an attorney became effective and the catch-all clarified that the right could be used at all times.

Here, the officer told Warren:

he had the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before any questioning if you wish. Should you decide to talk to me, you can stop the questioning at any time.

The Third Circuit found the Miranda warning was valid even though there was no express reference to the right to have counsel present throughout interrogation and no catch-all statement. An unqualified declaration of the general right to counsel – with no temporal reference to when the right to counsel becomes effective or ceased – although not the “clearest possible” warning, is sufficient.

Judge Greenaway filed a dissenting opinion, finding that “the conveyance of a general right to an attorney, without a contextual notification that this right exists during questioning,” does not reasonably convey a continuing right to counsel.

The entire panel agreed that the government did not breach its plea agreement that it would not file an information to enhance Warren’s sentence, pursuant to 21 U.S.C. § 851, by arguing for a different Guidelines range. The Court explained that no § 851 was filed so it was irrelevant that the government calculated and argued for a Guidelines range based on crack-cocaine while Warren argued for a range based on powder cocaine.

Sentencing enhancement for sadistic, masochistic, or violent materials and two special conditions of supervised release upheld

2011-04-26T11:51:00.004-04:00

In United States v. Maurer, No. 10-3049 (April 22, 2011) the Third Circuit affirmed the procedural reasonableness of a 60-month sentence for possession of child pornography and two special conditions of supervised release.

The Court rejected Maurer’s challenge to application of a four-level sentencing enhancement for material “that portrays sadistic or masochistic conduct or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4), and held that a sentencing court “need only find, by a preponderance of the evidence, that the image depicts sexual activity involving a prepubescent minor that would have caused pain to the minor.”

The Court found that the application of U.S.S.G. § 2G2.2(b)(4) did not constitute an abuse of discretion, nor was the enhancement unconstitutionally vague or overly broad. The ordinary meaning of the terms sadism and masochism provides courts with sufficient guidance. Although violence can be interpreted broadly, courts must construe its meaning narrowly because it follows “sadistic and masochistic conduct.” Despite the narrow definitions, the Court explained that the application of § 2G2.2(b)(4) is not limited to circumstances where pain is the result of sexual penetration by an adult or bondage of the child. Citing cases from other circuits, the Court gave the examples of other acts which would justify the enhancement: sexual gratification which is purposefully degrading or humiliating or conduct which causes mental suffering or psychological or emotional injury. Expert testimony is not required for the court to make the finding. Finally, it is a strict liability enhancement: the sentencing court need not determine the defendant intended to possess the images or actually derived pleasure from viewing them. Applying this standard, the Court found the sentencing court made the appropriate findings.

Maurer also challenged two special conditions to be imposed over his five years of supervised release: (1) a prohibition on internet use, unless specifically approved by Probation; and (2) a prohibition on “any contact with children of either sex, under the age of 18, without the expressed approval” of Probation. The Court found that the nature of Maurer’s computer use, the character and size of his collection, and his stated sexual interest in minors justified both conditions.

As for internet use, the Court considered the length and coverage of the restriction, and underlying conduct. Although Maurer only pled guilty to possession, his internet use went beyond simply obtaining child pornography. He did not sexually exploit a minor, but was willing to use the internet to facilitate a sexual encounter and told a supposed 18-year old boy that he was interested in meeting younger boys. Thus, his use triggered concerns of predation. Also, the restriction was sufficiently narrow because it did not restrict all computer – just internet – access and a five-year restriction fell comfortably within the range of restrictions previously upheld.

Similarly, the facts showed that Maurer was a risk to children such that restriction on “any contact” with minors was appropriate, regardless of his offense of conviction. The “any contact” restriction was permissibly cabined to Probation’s ministerial role, unlike previously invalidated restrictions (1) to “follow the directions [of Probation] regarding any contact with children,” or (2) on “any contact” with children, imposed for a lifetime, on a defendant who had young children.

Sentence with Large Downward Variance Reversed on Procedural Unreasonableness

2011-04-22T11:24:00.000-04:00

United States v. Negroni, 2011 WL 1125854 (Mar. 29, 2011). This case involved a massive fraud scheme in which the perpetrators submitted false claims in securities class action settlements. The defendants here – Hall & Negroni – submitted false claims totaling at least $1 million of the more than $40 million involved in the scheme. Both entered guilty pleas to mail fraud and wire fraud (Hall also pled guilty to tax evasion). The district court sentenced Hall to 15 months’ imprisonment and Negroni to 5 years’ probation. The government had sought much higher sentences.

For Hall, the government had sought a Guidelines enhancement of six levels because the scheme allegedly involved more than 250 victims. According to the Court, the district court rejected the enhancement with little explanation, commenting only that it was reluctant to accept the cooperating witness’s testimony without corroboration. Without the enhancement, the range was 46-57 months. The government sought a high-end sentence, but the district court varied downward.

For Negroni, the range, including the enhancement, was 70-87 months. Negroni asked for a variance or departure based on diminished capacity, and an unhealthy dependence developed on the leader of the scheme during his unguided, unhappy youth. He presented letters describing his unfortunate history and reports by a psychologist and his treating therapist, In sentencing Negroni to probation (with some home confinement), the district court cited the abuse and neglect Negroni suffered, his attachment to the leader of the scheme, the psychologist’s report, his stable family life, his treatment, his acceptance of responsibility, and his ability to pay restitution.

The government objected to both sentences as unreasonable. Although the government labeled its challenges on appeal as “substantive” challenges, the Court held that it had not waived challenges to the procedural reasonableness of the sentence because many of the arguments the government presented in its brief fell squarely within the definition of procedural error.

The Court then held that the district court failed to provide adequate explanation for its rejection of the enhancement for 250 or more victims. The Court felt that the government had presented evidence in support of the enhancement, although the defense had identified weaknesses with that evidence. Because the district court did not give its reasons for rejecting the enhancement, the Court was unable to review that decision.

With regard to Negroni’s sentence, the Court held that the district court failed to provide sufficient explanation for variance from a range of 70 to 87 months to probation and home confinement. Although the district court individually identified each statutory sentencing factor, it did not discuss all of the factors, and did not explain how the factors it did discuss justified the extraordinary downward variance. In reversing, the Circuit expressed its “doubt” that the sentence could be justified, in view of the Sentencing Commission’s express concern with the under-punishment of white-collar crime.

A petition for rehearing has been filed and is available at: http://www.fd.org/pdf_lib/3Rehear-Negroni_e041211.pdf.

SORNA - Failure to Register Conviction Upheld

2011-04-20T12:27:00.000-04:00

In United States v. Pendleton, 2011 WL 1366382 (Apr. 12, 2011), the Circuit rejected defendant’s challenge to the sufficiency of the evidence supporting his conviction for failure to register as a sex offender. The Court’s decision is based on the fact that defendant had stated numerous times to government officials and others—including during the time period alleged in the indictment—that he actually lived at the charged address, not only that it was his mailing address, regardless of fact that witness who lived in the house testified defendant had never stayed there. The court declined to reach issue of whether a “mail drop” address would have been sufficient to charge under the statute. The court likewise rejected a Commerce Clause challenge, and a Due Process and fair notice challenge based on the fact that Delaware law did not require Pendleton to register.

Dismissal of RICO Indictment Reversed - Enterprise and Pattern of Activity Sufficiently Alleged

2011-04-20T12:01:00.000-04:00

In United States v. Bergrin, 2011 WL 1366388 (Apr. 12, 2011), the Government appealed dismissal of RICO indictment which district court held did not adequately allege a racketeering “enterprise” or a “pattern of racketeering activity.” Following a thorough review of RICO definitions, the Circuit disagreed and held the indictment sufficient, finding that the district court principally erred in assessing the government’s ability to prove the allegations rather than assuming all alleged facts as true as required at the motion to dismiss stage.

Bergrin, defense attorney and former federal prosecutor, was charged with heading a criminal enterprise from 2003 through 2009 involving numerous offenses and co-defendants connected through an “association-in-fact” enterprise called the Bergrin Law Enterprise (BLE) which included four corporations —the law firm Pope, Bergrin & Verdesco, PA (PB & V); the Law Office of Paul W. Bergrin, PC; Premium Realty Investment Corp., Inc.; and Isabella's International Restaurant, Inc.

The indictment alleged that Bergrin was the leader of the BLE and played an instrumental role in six criminal schemes, with co-defendants' each having significant involvement in at least one scheme and little or no involvement in others. The six schemes, listed as “racketeering acts,” included: arranging for the murders of government witness on behalf of clients, bribing a government witness, trafficking in kilogram quantities of cocaine, running a prostitution scheme, and fraudulent real estate transfers.

The indictment also alleged purposes of the Enterprise, including: providing the BLE with an expanding base of clients for legal and illegal services; generating, preserving and protecting the BLE’s profits and client base through those alleged acts; protecting Bergrin’s status as a licensed attorney; enhancing his reputation as a criminal defense attorney; promoting the BLE’s activities; enriching members; and concealing the criminal activities of the BLE and its members and associates from detection and prosecution.

Bergrin and his co-defendants moved to dismiss the RICO and racketeering-based counts. The district court granted the motions, finding that the indictment did not adequately allege a racketeering “enterprise” or a “pattern of racketeering activity.”

The Circuit reversed, first reviewing the definitions of “enterprise,” “employed or associated with,” “pattern of racketeering activity,” and “racketeering activity,” and the broad reach of the statute. Pointing out the narrow analysis permitted by a motion to dismiss – whether the allegations, assumed to be true, suffice to charge an offense – the court found sufficient allegations to establish both a pattern of racketeering activity and an enterprise, including purpose, relationships and longevity. In granting the motion to dismiss, the district court erred in finding that the indictment failed to allege a common purpose among the predicate acts by weighing whether the government could prove the allegations. Also, there is no requirement that the predicate acts be similar in order to establish a “pattern,”or that an enterprise have structure, defined leadership or organization.

Third Circuit invalidates robbery conviction based on Brady violations and ineffective assistance of counsel

2011-04-20T12:00:00.006-04:00

In Breakiron v. Horn, (April 18, 2011), after the District Court had invalidated Breakiron's murder conviction and death sentence, the Third Circuit found three reasons to invalidate the robbery conviction: (1) the Brady violations that had caused the District Court to invalidate the murder conviction were also material to the robbery conviction; (2) trial counsel had been constitutionally ineffective in failing to request the lesser-included offense of theft; and (3) trial counsel had been constitutionally ineffective in failing to take corrective action when a venire panel member was exposed to evidence about Breakiron’s propensity to commit robberies and then served on the jury.

Mark Breakiron killed the bartender of a bar in Uniontown, Pennsylvania, and stole money from the bar. He was charged with first-degree murder and robbery. At trial, Breakiron argued, based on a voluntary intoxication/diminished capacity defense, that he did not have the specific intent to kill and so was only guilty of third-degree murder. In addition, he argued he decided to steal the money after the attack was complete, so he was guilty of theft not robbery. Ellis Price was incarcerated with Breakiron before his trial and testified to statements Breakiron made to him that suggested the attack was premeditated. The jury convicted Breakiron of first-degree murder and robbery and found as an aggravating factor that Breakiron committed the murder while committing a felony (robbery). Breakiron was sentenced to death.

The Pennsylvania Supreme Court affirmed. Breakiron filed a petition for post-conviction relief, which was denied after the court held an evidentiary hearing. The Pennsylvania Supreme Court affirmed. Breakiron filed a federal habeas petition. Breakiron also filed a second state petition, raising Brady issues, which the state court dismissed as untimely. The District Court (W.D.Pa.) found a Brady violation regarding impeachment evidence about a key witness, Price. The Brady violations were failure to disclose that Price (1) had been convicted of an impeachable offense, (2) had sought a deal in exchange for his testimony against Breakiron, and (3) was a suspect in an unrelated criminal investigation pending at that time for which he was never charged. The District Court invalidated Breakiron’s murder conviction and death sentence, but not the robbery conviction after concluding that Price’s testimony was not material to the robbery conviction. The government did not appeal, so only the robbery conviction was before the Third Circuit.

Within the deferential strictures of a review under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Third Circuit invalidated Breakiron’s robbery conviction. The Third Circuit found that Price’s testimony was material to the robbery conviction because (1) it suggested that the entire incident was a premeditated and intentional plan, and (2) it undercut Breakiron’s credibility, which was crucial for his theory of defense.

The Third Circuit found that trial counsel had been constitutionally ineffective in failing to request a charge for the lesser-included offense of theft where the trial strategy had been to concede that Breakiron had committed a theft but not a robbery. Thus, where Breakiron was guilty of some offense, and the jury instructions only presented the jury with an all-or-nothing choice between robbery and outright acquittal, there was a substantial risk that the jury would convict him of an unproven offense (robbery).

The Third Circuit found that counsel was constitutionally ineffective for failing to take corrective action at voir dire. A member of the jury that convicted Breakiron had heard another venire member state he knew Breakiron and that Breakiron “used to do a lot of robberies.” The Third Circuit expressed concern at the juror’s exposure to propensity evidence which is so patently prejudicial that it is not necessarily cured by a limiting instruction. Even worse, the propensity evidence here was about the very crime at issue, robbery. The Third Circuit determined there was no reasonable basis for any belief in the impartiality or fairness of this juror. The Third Circuit found prejudice using an objective standard: “Whether there is a reasonable probability that a juror who had not been exposed to that statement would have voted to acquit Breakiron of robbery.” The Court found there was a reasonable probability that corrective action by counsel would have produced a different result.

Court Emphasizes the Strict Standard of Relief under Writ of Error Coram Nobis.

2011-04-08T14:59:00.002-04:00

Following his conviction for possession with intent to distribute 50 grams of cocaine base, Petitioner Gary Rhines continued to challenge his conviction and life sentence. After his conviction and sentence were affirmed by the Third Circuit, his writ of certiorari was denied by the Supreme Court, his motion under 28 U.S.C. §2255 was denied, and his application to file a second and successive §2255 motion were rejected, Rhine filed a writ of error coram nobis. In the writ he claimed that the arresting officers fabricated evidence and gave false testimony at trial. The basis for his claim was the 2007 indictment of the officers on charges that included tampering with records and perjury. Rhines additionally argued ineffective assistance of counsel for failure to discover the indictments against the officers. The district court dismissed the petition. In United States v. Rhines, 10-4077, the Third Circuit summarily affirmed the district court’s decision because the appeal did not present a substantial question.

In affirming the district court’s dismissal, the Third Circuit noted that relief under coram nobis is an “extraordinary remedy,” traditionally reserved for petitioners that are no longer in federal custody. When another avenue of relief is available, a court will not issue a writ of error coram nobis. Moreover, in order to obtain relief there must exist a fundamental error that essentially renders the trial invalid.

Specific to Rhines’ case, he did not qualify for coram nobis relief because he was still incarcerated when he filed the writ. Additionally, his petition did not present a fundamental error that would make his trial invalid. Rhines’ position that he was unable to impeach the officers at trial was unavailing. The officers in question were indicted five years after his conviction and there was no evidence suggesting that the tampered records related to Rhines’ case. In short, pure speculation is insufficient to carry the burden for relief. Finally, the Third Circuit noted that Rhines raised the same issues in his second §2255 motion, and that the Court had rejected his application for certificate of appealability. Failure to meet the standard for a second §2255 motion does not entitle a defendant to bring a writ of error coram nobis.

Writ of Mandamus issues when District Court refuses to instruct jury on all elements of charged offense.

2011-03-28T17:15:00.008-04:00

While reiterating its general rule that mandamus is “a drastic remedy that is seldom issued and its use is discouraged,” the Third Circuit nevertheless found “the kind of extraordinary situation in which we are empowered to issue the writ of mandamus,” in United States v. Higden, No. 10-3882 (March 17, 2011).

Defendant was tried for violating 18 U.S.C. § 922 (g)(1), which has three elements: (1) that defendant possessed a firearm; 2) that defendant was a convicted felon; and 3) that the firearm had traveled in interstate commerce. Before trial, Defendant and the Government stipulated that Defendant had satisfied the last two of those three elements, and that the jury should be informed of that stipulation. The District Court refused to permit the Government to mention the stipulation during voir dire, and instructed the jury without mentioning either the convicted felony or interstate commerce elements of the charge. Similarly, at trial, despite several requests by the AUSA, the District Court refused to permit the jury to hear about the stipulation or provide a more complete instruction on the elements of the charged offense. At the end of the trial, the District Court refused again to instruct the jury on all elements of the charge, charging only that “”your job is to decide whether the evidence which was actually presented does or does not establish beyond a reasonable doubt that the defendant, Mr. Higden, had possession of this firearm, that he knew he had possession and knew it was a firearm.”

After a day of deliberation, the jury reported a deadlock. The District Court proposed that the parties accept a majority vote for a verdict. Both counsel rejected the proposal, noting the requirement of a unanimous verdict in criminal cases.

The District Court then scheduled a second trial. Before the second trial, the Government filed a motion in limine to ensure that the jury was properly instructed on all three elements of the charge, and that the Government could present evidence (including the stipulation) on all three elements. The District Court denied the motion. The Government appealed and petitioned for mandamus.

As a threshold matter, the Court of Appeals addressed its jurisdiction. It ruled, first, that it had jurisdiction to hear the Government’s interlocutory appeal concerning the stipulation, because it was a pretrial evidentiary ruling to exclude evidence, under 18 U.S.C. § 3731, but that it did not have jurisdiction to hear an appeal on the refusal to charge the elements of the offense. The Court ruled, however, that it did have jurisdiction to consider the refusal to charge for purposes of mandamus.

On the merits of the appeal, the Third Circuit ruled that a district court may not entirely exclude a stipulated fact from the jury’s consideration when that fact constitutes an element of an offense. So, while a defendant’s stipulation can prevent the jury from hearing the underlying facts of the prior felony, it cannot prevent the jury from hearing the fact of the prior felony conviction. The Court noted that “an appropriately forceful limiting instruction” can cure any prejudice arising from evidence of the prior felony.

As for mandamus, the Court ruled that the Government had met both requirements for issuing a writ: 1) that the Government had no other adequate means for relief; and 2) that the Government’s right to the writ was clear and indisputable. The Court stated that “it is crystal clear” that the Government had no other avenue to compel the District Court to instruct the jury on all three elements of the charge. And the Court stated further that the District Court’s insistence on giving an improper jury charge was “clear and indisputable error”. Therefore, finding this “an extraordinary situation”, the Court granted the petition for mandamus, and remanded, directing the Chief Judge of the Eastern District of Pennsylvania to reassign the case to another district court judge.

Finally, on an editorial note, it is clear from Chief Judge McKee’s opinion that the Court granted the petition for mandamus because of the extreme circumstances, characterizing the situation “as unfortunate as it is regrettable.” Although stating that the Court was “simply at a loss to explain the [district] court's behavior," the Court did observe that “Judge Fullam is a very experienced and hard working jurist and he has devoted decades of service to the federal bench.” Six days after this decision was issued, Judge Fullam stated his intention to resign.

Borrower of rental car generally lacks expectation of privacy in that rental car.

2011-03-28T14:33:00.003-04:00

In United States v. Kennedy, No. 09-1980 (March 16, 2011), the Third Circuit affirmed the denial of a suppression motion by a driver of a rental car that was not rented in his name. Police had arrested defendant Kennedy on an outstanding warrant, and searching a nearby rental car that he had borrowed from his girlfriend – the authorized driver – police found guns and drugs inside the car. Defendant moved to suppress the evidence found in the car, asserting a legitimate expectation of privacy in its contents. The District Court denied the motion. After a two-day trial, the jury found Kennedy guilty on three counts of drug and firearms charges. The District Court sentenced him to 300 months in prison.

On appeal, the Third Circuit affirmed. Surveying decisions in the Circuits, the Court observed that while there may be agreement that an authorized driver on the rental agreement will generally have an expectation of privacy “due to his possessory and property interest in the vehicle,” the Circuits are split on whether that same expectation of privacy should be accorded to a driver who has been lent the car by the renter, but is not listed on the rental agreement as an authorized driver. The Court noted that the Eighth and Ninth Circuits have held that an unauthorized driver has an expectation of privacy when he has the renter’s permission, but that the majority of Circuits – Fourth, Fifth, Sixth, Seventh, and Tenth Circuits – hold to the contrary. The Third Circuit joined the majority in holding that “the lack of a cognizable property interest in the rental vehicle . . . makes it generally unreasonable for an unauthorized driver to expect privacy in the vehicle.”

The Court did note, however, that an extraordinary circumstance – not present here – might give rise to an exception to that general rule; as, for example, where the unauthorized driver was not only the authorized driver's spouse, but he had also contacted the rental car company to reserve the car in his name with his credit card, which was billed for the rental.

Court rejects Second Amendment challenges to 18 U.S.C. § 922(g)(1)

2011-03-07T16:24:00.005-05:00

Defendant James Barton entered a conditional guilty plea to two counts of being a felon-in-possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), reserving the right to argue on appeal that those convictions violated his Second Amendment right to keep and bear arms. The Third Circuit rejected Barton's challenges, holding that § 922(g)(1) was constitutional both on its face and as applied to Barton. See United States v. Barton, No. 09-2211 (3d Cir. March 4, 2011).

With respect to Barton's facial challenge, the Third Circuit concluded that it was bound by the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), to reject that challenge. The Heller Court found that the individual right to keep and bear arms, while fundamental, was not unlimited, id. at 626, and certain "longstanding prohibitions on the possession of firearms" are "presumptively lawful." id. at 626-27 n. 26. This includes a prohibition on the possession of firearms by felons. Id. at 626-27. The Third Circuit rejected Barton's argument that Heller's list of "presumptively lawful" regulations was dicta and, instead, found that discussion outcome-determinative. Accordingly, the Court held that it was bound by Heller to deny Barton's facial constitutional challenge to § 922(g)(1).

With respect to Barton's as-applied challenge, the Third Circuit "look[ed] to the historical pedigree of 18 U.S.C. § 922(g) to determine whether the traditional justifications underlying the statute support a finding of permanent disability in this case." Op. at 9. The Court found that "the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses." Op. at 10 (emphasis added). Thus, a felon convicted of a minor, non-violent crime or a felon whose crime of conviction was decades old who was able to show that he was no more dangerous than a typical, law-abiding citizen and posed no continuing threat to society could possibly raise a successful as-applied challenge to § 922(g)(1). Barton's criminal history, which included convictions for drug-trafficking and receiving stolen weapons in the recent past, precluded him from raising a successful as-applied challenge. Accordingly, the Third Circuit found no error in the district court's dismissal of this challenge.

Finally, Barton maintained that even if his prior convictions precluded him from possessing a firearm, he should retain the right to keep a firearm in his home for self-defense. The Third Circuit noted that this argument was foreclosed by its decision in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which holds that "a felony conviction disqualifies an individual from asserting" his fundamental right to "defense of hearth and home." Id. at 92.

Search warrant affidavit sufficient to establish probable cause in child pornography case despite deficiencies

2011-03-03T15:53:00.005-05:00

In United States v. Miknevich, 09-3059 (March 1, 2011), the Third Circuit was asked to determine whether an affidavit prepared by a law enforcement officer in child pornography case supported the district court's finding of probable cause. Defendant was charged with possession of child pornography after police executed a search warrant at his home and seized his computer. He entered a conditional guilty plea, reserving the right to challenge the district court's probable cause determination on appeal. In challenging the sufficiency of the affidavit, the defendant noted the following deficiencies: (1) the affidavit did not indicate that any investigating officer actually downloaded the suspect video file, (2) the affidavit did not indicate that anyone, including any other officers or the magistrate judge, ever actually viewed the suspect file, and (3) the affidavit contained no description of the suspected images or actions in the file.

While the Third Circuit agreed that parts of the affidavit were "imprecise" and "inartfully drafted," it nevertheless found that, even given the infirmities identified, the affidavit still contained information sufficient to support a finding of probable cause. The Court rejected any suggestion that a magistrate judge must review the contents of the actual files or that a search warrant must include copies of the images giving rise to the request for the warrant in order for probable cause to be established. Nor does the investigating officer necessarily need to review the images himself, although this remains, in the Court's view, the best procedure for investigating officers to follow. Instead, the Court found that the title of the computer file at issue, which contained highly graphic references to specific graphic sexual acts involving "6yo" and "7yo" children, coupled with the file's SHA 1 value (i.e., a digital fingerprint identifying the file as one known to contain images of child pornography), provided the magistrate judge with a substantial basis for finding probable cause to issue a search warrant. Accordingly, the Third Circuit affirmed the defendant's conviction and sentence.

State Court Unreasonably Denied Brady Relief for Commonwealth’s Concealment of Evidence

2011-02-15T11:39:00.001-05:00

In Lambert v. Beard, ___ F.3d ___, 2011 WL 353209 (3d Cir. Feb. 7, 2011), Judge Barry authored the panel opinion granting guilt-innocence phase relief in this 1984 Philadelphia capital case. The state’s star witness, Jackson, who initially was identified as one of the shooters in a barroom robbery-murder, identified petitioner as one of two robbers who entered the bar while Jackson waited in the getaway car. Jackson was extensively impeached at trial, but the prosecution argued that one aspect of his testimony—his identification of Lambert and a second party as the two men who committed the crime—had never changed. In postconviction and habeas petitions, Lambert presented evidence that the prosecutor’s claim was untrue. The Commonwealth had never disclosed a police activity sheet showing that Jackson at one time named a third party, not Lambert or the second party he identified at trial, as a “co-defendant” responsible for the shooting.

The Commonwealth conceded that the prosecution should have disclosed this information, and the Circuit panel held that the state courts had unreasonably found that the information was not material. The court acknowledged Harrington v. Richter’s holding that a state court merits ruling precludes federal habeas relief as long as “fairminded jurists could disagree” about the correctness of the ruling. Nevertheless, the panel held, it had found constitutional error and had a duty to correct it. Unlike all of the other impeachment evidence introduced at trial, the information in the police activity sheet would have opened “an entirely new line of impeachment” and thus was not cumulative. For that reason, the evidence was material and the state courts’ failure to grant relief for its nondisclosure was unreasonable.

The panel had issued an extraordinary order in November, stating that Lambert was clearly entitled to penalty phase relief because of Mills v. Maryland error, and should be taken off death row while the court drafted a full opinion that would address both the guilt-innocence and penalty phase issues. The Commonwealth’s petition for panel rehearing or rehearing en banc of that order was pending when the panel issued its February opinion. It vacated the November order and dismissed the Commonwealth’s petition on the ground that both were now moot.

Digest by Claudia Van Wyk, EDPA

Pro se notice of appeal liberally construed

2011-02-14T17:45:00.002-05:00

In US v. Aswa Mills, No. 10-1542 (Feb. 9, 2011) (click here), the Circuit ruled that a notice of appeal, especially if pro se, should be construed liberally and should be deemed adequate as long as it is "reasonably clear" under all the circumstances which judgment the party seeks to appeal.

Mills filed pro se notice of appeal shortly after his murder conviction, but gave the case number and trial date for an earlier assault case -- a case for which he had already fully served his sentence and had withdrawn an appeal. The Court reasoned that under the circumstances it should have been clear to the government that Mills intended to appeal from his murder conviction, not the expired assault conviction. In addition, the Court noted that the government could not show it was in any way prejudiced. "[A]s long as the judgment the party intends to appeal is fairly discernible, a notice of appeal will be deemed sufficient even though it references the wrong case number, or the wrong judgment date."

Court Finds File Names are in Plain View; Looks at Consent, Inevitable Discovery and Independent Source Doctrines

2011-02-08T11:40:00.001-05:00

In a lengthy c.p. opinion in U.S. v. Stabile, --- F.3d ----, 2011 WL 294036 (Feb. 1, 2011), the Third Circuit found the following:
(1) Consent to a warrantless search by cohabitant who had common authority over the property, including seizure of hard drives in common area which were not password protected, was valid; (2) the search of entire contents of the hard drives was reasonable and was not required to be done on-site;
(3) the subsequent revocation of cohabitant's consent by defendant was ineffective;
(4) a three-month delay between seizure of hard drives and obtaining search warrant was not unreasonable given that property was turned over by consent, defendant did not request return of the property, and government's rationale for the delay was reasonable;
(5) file names, which appeared when a folder on defendant’s hard drive was highlighted, indicating child pornography were in "plain view" during search for financial fraud evidence; and
(6) although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

In brief, during a counterfeit check investigation, secret service agents and members of a New Jersey sheriff’s office obtained consent from a cohabitant (“Deetz”) to search the house she shared with Stabile to search for evidence of financial crimes. Next to one of several computers and hard drives, the agents found check stock, check writing software, photocopies of checks, copies of previously-passed fraudulent checks, two printers, and checks with an alias. Agents also located DVD’s bearing titles believed to represent child pornography. When Stabile arrived, he refused to answer questions and attempted to revoke Deetz's consent by stating “I take it back,” but did not request return of his seized property until months later.

Although the agent obtained the six hard drives on July 24, 2006, he did not apply for a state search warrant until October 2006 because of another assigned detail. The warrant authorized search of the computer hard drives for evidence of financial crimes and child pornography. However, the DVDs at this point had already been determined to not contain child pornography, and the detective who would perform the forensic search, was told that there was a problem with the warrant as it related to child pornography and to search only for evidence of financial crimes. During the search, the detective noted numerous suspicious folders, including one “Kazvid,” which he understood to reference a file sharing program used often to share child pornography. He then highlighted the Kazvid folder, which allowed him to view a list of file names contained in the folder. The detective later testified that he highlighted the Kazvid folder not because it necessarily contained child pornography but because-as a suspicious folder-it could harbor evidence of any sort of crime, including a financial crime. He then observed a list of file names suggestive of child pornography and opened twelve different video files to “confirm” that they contained child pornography. He then notified the agent who obtained a federal search warrant based on only the names of the files in the Kazvid folder. This ultimately led to warrants to search the other drives and the child pornography indictment.

Stabile moved to suppress the evidence but the district court concluded that the search of Stabile's house was a valid consent search, that Stabile could not “revoke” Deetz's prior consent under Georgia v. Randolph, that the Government's delay in obtaining a state search warrant was not unreasonably long, and that, under the inevitable discovery doctrine, the evidence obtained from the search of the first hard drive need not be suppressed.

The Circuit affirmed, agreeing that Deetz ( who had common authority over the property) could consent to the warrantless search, including seizure of hard drives in common area which were not password protected. The court further rejected Stabile’s argument that the search of the hard drives should have been done on-site and found that his subsequent revocation of Deetz’s consent was ineffective. The Court also found the three-month delay between the seizure of the hard drives and obtaining of the search warrant reasonable, given that the property was turned over by consent, Stabile did not request return of the property, and government's rationale - that the agent was unavailable due to another assignment - for the delay was reasonable. Finally, the Court held that the file names in the Kizvid folder indicating child pornography were in "plain view" during search for financial fraud evidence because the officer [a] validly arrived at the place where file names were listed, [b] the incriminating character was immediately apparent, and [c] the officer had a lawful right to access the harddrive and, although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

Clear-Error Standard of Review Applies to a District Court’s Determination of Recklessness Under Franks

2011-02-01T15:20:00.001-05:00

In United States v. Brown, No. 09-3643, the Third Circuit affirmed the District Court’s opinion granting the defendant’s motion to suppress a sample of his DNA pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Two men wearing masks from the movie “Scream” robbed a bank in Western Pennsylvania at gunpoint and fled to a nearby school district building, where they stole a school district van. Police found the van abandoned by the road only a half-mile from the school district building. A “Scream” mask with DNA material was later found in the van. Witnesses reported seeing a silver Volkswagen Jetta driving in the area that morning. The Jetta was described as having white license plates; one witness specifically stated that the Jetta had Maryland plates. A bank teller recognized one of the robbers’ voices as belonging to a regular customer. His acquaintance informed a State Trooper that he had a nephew (Mr. Brown) who had a silver Jetta and visited the area frequently. Further investigations revealed that Mr. Brown, a Maryland resident, may have been visiting the area on the date of the robbery, and left his uncle’s house for a few hours that morning in his silver Jetta.

The Trooper and an FBI Agent sought a warrant to obtain a DNA sample from Mr. Brown in the hopes it would match the DNA found on the “Scream” mask. The Agent never interviewed any of the witnesses. The Trooper filled him in via telephone and provided him with his written reports from the investigation. The Agent never read the witness statements and did not review the investigation reports in detail. The resulting affidavit contained an abbreviated version of the facts of the case. It also contained an averment that witnesses reported seeing the stolen school district van meet up with a silver Jetta with possible Maryland registration. The Agent failed to cross-check the affidavit’s contents with the investigation reports and never asked the Trooper to check the affidavit for accuracy. An Agent in Maryland took the affidavit to a United States Magistrate Judge, who issued the warrant. Mr. Brown’s DNA matched the DNA on the “Scream” mask.

The averment mentioned above turned out to be false. The Trooper testified at the Franks hearing that he never told the Agent that various witnesses saw the van meet up with the Jetta. The District Court granted Mr. Brown’s motion to suppress, finding that the Agent had acted with reckless disregard for the truth and that, in the absence of the “meet-up” between the vehicles, the affidavit lacked probable cause. On appeal, the government conceded falsehood and materiality under Franks and Mr. Brown conceded that the Agent’s actions were not knowing and intentional. The only issue on appeal was whether the Agent’s conduct evinced a reckless disregard for the truth.

The Third Circuit first held that the recklessness determination under Franks is subject to the clear-error standard of review. The Court explained that unlike First Amendment “actual malice” cases (from which Franks recklessness is derived) which are subject to de novo review, the exclusionary rule does not implicate a constitutional right. Rather, the recklessness inquiry goes to whether a violation of the Fourth Amendment requires exclusion of the evidence.

Applying the clear-error standard of review, the Third Circuit held that the District Court properly concluded that the recklessness standard had been met in this case. The Court reiterated that pursuant to Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000), “[a]n assertion is made with reckless disregard when ‘viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.’” In doing so, the Court held that “a court may properly infer that an affiant acted with reckless disregard for the truth where his affidavit contains an averment that was without sufficient basis at the time he drafted it.” The Court reasoned that where a law enforcement officer lacks sufficient grounding to support his averment, “it constitutes an ‘obvious reason[] for doubt’ under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth.”

The Agent basically admitted on the stand that he had no basis for his assertion that the two vehicles met up. Nor was there any basis for such an averment in the materials the Trooper provided to him. Therefore, the District Court did not clearly err in finding that the Agent’s conduct rose to the level of recklessness under Franks.

Christofer Bates, E.D. Pa.

Collective Knowledge of Police Sufficient to Support Reasonable Suspicion for Terry Stop

2011-01-13T12:02:00.002-05:00

In United States v. Whitfield, No. 09-3031 (3d Cir., filed December 6, 2010, published January 6, 2011), four Camden police officers in three marked police vehicles were patrolling an area of the city known for violence and drug activity involving crack cocaine. As the caravan approached a particularly active street corner, the officers in the lead car observed two individuals in conversation, later identified as Defendants Whitfield and Langston. Upon receipt of this notice regarding the defendants, the officer in the second car, Officer Redd, observed the defendants engage in a hand-to-hand exchange and quickly exit the area. Officer Redd notified his fellow officers that they should “check out” the two men. However, Officer Redd did not inform his colleagues that he had observed a hand-to-hand exchange between the defendants. All four of the officers stopped their vehicles and approached the defendants. Officer Redd and Sergeant Rivera, who had been driving the third police vehicle in the caravan, claimed that they observed Defendant Whitfield quickly place his hand in his pocket as if he was holding something. The officers drew their weapons and ordered Defendant Whitfield to remove his hand from his pocket, but the defendant refused and continued walking. Officer Redd maintained that Defendant Whitfield looked as if he was searching for a way to escape. As Defendant Whitfield approached Sergeant Rivera, the officer grabbed the defendant and moved him towards the police vehicle. As he was apprehended by Sergeant Rivera, Defendant Whitfield informed the officer that he possessed a firearm. Defendant Whitfield challenged the legality of his seizure by Sergeant Rivera because this officer did not witness Defendant Whitfield engage in the hand-to-hand exchange with Defendant Langston. Sergeant Rivera only observed Defendant Whitfield place his hand in his pocket.

The Third Circuit upheld the seizure, citing the “collective knowledge” doctrine. The Court ruled that, pursuant to this doctrine, “the knowledge of one law enforcement officer is imputed to the officer who actually conducted the seizure, search, or arrest.” The Court reasoned that it would be impractical to expect an officer, who is working with his fellow officers as a “unified and tight-knit team” during a “fast-paced, dynamic situation,” to communicate to the other officers every fact that could be pertinent in a subsequent reasonable suspicion analysis.

Circuit Requires Relevant Conduct to Cross-Reference

2011-01-04T14:16:00.003-05:00

Kulick pled guilty to unlawful possession of a firearm. In exchange, the government dismissed other charges, including an extortion charge, dating from more than a year earlier. Nonetheless, the district court cross-referenced to the extortion guideline at sentencing, resulting in application of a guideline four levels higher than would have applied for the unlawful possession of a firearm. The Third Circuit reversed. See United States v. Kulick, No. 09-3833, http://www.ca3.uscourts.gov/opinarch/093833p.pdf.

In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would "eviscerate the effect and import of the Guidelines to permit an enhancement on these facts."

Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court "actively considered" the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines' discouragement of departures on this ground and Cooper's holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.

A SENTENCE TO STATUTORY MAX 30 YEARS - MORE THAN DOUBLE THE GUIDELINE RANGE AND DESPITE A 5K1.1 MOTION - AFFIRMED

2010-12-30T17:13:00.001-05:00

In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin’s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.

Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B.L. and M.M., over the internet in exchange for money. She was subsequently charged with one count of production of a sexually explicit visual depiction of a minor, 18 U.S.C. § 2251(a), amongst other counts. Larkin entered a guilty plea pursuant to a plea agreement to this count alone (the rest were dismissed). Pursuant to the plea agreement, the Government moved for a downward departure under § 5K1.1 for Ms. Larkin’s substantial assistance to law enforcement authorities. Additionally, the plea agreement outlined a projected guideline range of 121-151 months imprisonment. Prior to sentencing the United States Probation Office calculated a higher guideline range than the plea agreement contemplated as it added 2 levels for “use of a computer” under § 2G2.1(b)(3) (2003), it found there were two victims (not one) and because of the calculation that Ms. Larkin was a CHC II (not a CHC I as contemplated by the plea agreement). Despite the plea agreement, the Government made arguments in support of the probation office’s positions. After objections, including that the Government violated the plea agreement, the district court did not apply the 2 level enhancement. The district court did, however, agree that there were two victims (i.e. both of Larkin’s children) and that it could consider their mental health evaluations. And, finally, the district court did not find the Government breached the plea agreement when it briefed in support of the U.S. Probation Office’s positions.

Prior to sentencing and despite the Government’s 5K1.1 motion for downward departure, the Court asked the parties to brief possible upward departures. Thereafter, the Court issued its opinion that it intended to upwardly depart. At sentencing, the Court sentenced Ms. Larkin to the statutory maximum 30 years imprisonment with lifetime supervised release.

On appeal, Ms. Larkin raised four issues: 1) Whether the photographs of her one child, B.L., qualified as “sexually explicit” under 18 U.S.C. § 2256(2)(B)(iii) which therefore qualified her as a second victim; 2) Whether the Government’s conduct violated the terms of the plea agreement; 3) Whether the district court violated the ex post facto clause when it upwardly departed five levels; and 4) Whether Larkin’s sentence was reasonable.

First, the Court of Appeals held that the photographs of B.L. were “sexually explicit” because they were “graphic or simulated lascivious exhibition of the genitals or pubic area of any person” under 18 U.S.C. § 2256(2)(B)(iii). In analyzing 5 photographs, the Court applied the “Dost test” which is a 6-factor test (looks at whether there’s a focus on genitalia, sexual suggestiveness, pose, nudity, sexual coyness, intended to elicit a sexual response) in determining whether a depiction is of “lascivious conduct.” See United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986). In applying this test, the Court analyzed each photograph individually and discussed each factor. While in large part the photographs satisfied few of these factors or they were “close calls,” the Court often fell back on factor 6 - that the photographs were “engineered to elicit a sexual response” of their “target audience” - and therefore qualified es “sexually explicit.”

Second, the Court of Appeals held the Government did not violate the terms of the plea agreement. Applying a contract law standard of analysis, the Court considered “whether the government’s conduct falls within the range of expectations reasonably understood by Larkin when she entered her guilty plea.” The Court engaged in a three-step process: 1) review the relevant portions of the plea agreement as compared to the allegations of impropriety by the government; 2) evaluate the conduct and determine if it is violative of the plea agreement; and 3) if there is a violation, fashion an appropriate remedy. The plea agreement contemplated a specific guideline range and cited particular enhancements that did and did not apply. For example, the government agreed that the 2 level enhancement for use of a computer did not apply. Yet, when probation said it did apply and the government argued pre-sentence for its application. The government also provided the probation office with psychologist reports that were in support of an upward departure. The government also filed briefs in response to the court’s request regarding upward departures. Larkin asserted this (among other things) was a breach of the plea agreement. Despite Larkin’s arguments that the plea agreement terms were breached, the Court of appeals disagreed. The Court cited specific language in the plea agreement which stated that, in effect, the government would provide all information to the court and the probation office that was relevant to sentencing factors and was not limited in its response to court requests for briefing. So, in effect, the government drafted a plea agreement with Larkin and agreed to certain terms. Yet, when the probation office mentioned the possibility of an upward departure, the government simply “obliged” by giving them the no doubt unfavorable psychological report which supported the upward departure. Then when the Court requested briefing on the upward departure the government’s response was not considered “advocacy” but rather it was considered an “assessment of the law and the relevant facts that would support the application of the enhancement.” As a result, the Court of Appeals decided the government had not crossed the line.

Third, the Court of Appeals held that the district court did not violate the ex post facto clause when it upwardly departed five levels based on a 2009 amendment to the Sentencing Guidelines (Larkin committed the offense in 2002 and was sentenced in 2009). The district court found the 2002 Guidelines did not consider the severity of Larkin’s conduct and therefore departed upward by 5 levels under the 2009 Guidelines, § 5K2.0. The district court did so citing the fact that the 2009 guideline specifically contemplated enhancements for the identified conduct. Yet, while the Court of Appeals held that direct application of an amended guideline to conduct that occurred prior to the amendment offends the ex post facto clause, “analogizing” to the amendment does not.

Fourth, the Court of Appeals held that Larkin’s sentence was reasonable. The bulk of Larkin’s argument in this regard centered on the disparity in sentences between she and her co-defendant who received the same sentence despite the fact that she provided substantial assistance. Finding no procedural errors, the Court cited Gall, in holding that, although the appellate court might “reasonably have concluded that a different sentence was appropriate” that is “insufficient to justify reversal.”

Case Remanded for Resentencing Due to Imposition of “General Sentence”

2010-11-30T14:52:00.002-05:00

In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.

Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.

At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.

The Defendant appealed arguing the sentence was procedurally and substantively unreasonable. The Third Circuit applied a two-step process: (1) addressing procedural errors by reviewing facts for clear error and applied a de novo review of legal rulings; and (2) addressing substantive reasonableness using an abuse of discretion standard by looking at the "totality of circumstances". Errors not raised at trial were subject to "plain error review."

Ward argued the trial court erred procedurally by finding that a second victim was involved. Applying U.S.S.G. § 2G2.1 and relevant conduct to the facts, the Third Circuit found no error in adding the two-level adjustment for a second victim.

The Third Circuit found that converting restitution into a fine was in error because of the manner in which it was done; no analysis was made by the district court explaining why a fine would be appropriate. Unfortunately this error did not result in a "manifest injustice" so there was no plain error.

However, the Third Circuit held that under § 5G1.2 and Application Note 1, sentencing courts must impose a sentence on each count. Failure to do so is plain error affecting the defendant’s substantial rights and resulting in "manifest injustice" because it doesn’t allow the defendant or appellate courts to determine whether the sentence was legal as to particular counts. The sentence was therefore vacated and the case remanded for resentencing.

Interior Dog Sniff of Open Car Not Illegal Warrantless Search

2010-10-21T12:37:00.002-04:00

In United States v. Pierce, No. 09-3865 (3d Cir., October 1, 2010), the defendant was stopped by a Delaware State trooper for speeding. According to the trooper, the defendant's responses to his questions led the trooper to remove the defendant from the vehicle. As the defendant complied with the trooper's command, he left the front driver's side door open. At some point, the trooper requested that a narcotics dog conduct a K-9 examination of the car. As the narcotics dog and its handler circled the vehicle, the dog alerted when he reached the front passenger side door. When the dog and its handler reached the driver's side of the car, the dog immediately jumped into the driver's seat through the open door. The dog intently sniffed the glove box and air vents. In response to the dog's alert, the trooper searched the glove box and discovered approximately one kilogram of cocaine and over $20,000 in cash.

Citing the Eighth and Tenth Circuits, the Third Circuit determined that an interior dog sniff is not violative of the Fourth Amendment if the dog's actions are instinctive, and not directed, facilitated or encouraged by its handler. The defendant argued that the dog's sniffs of the interior of the car constituted a Fourth Amendment search because the dog's handler facilitated his entry into the vehicle. However, after a review of the record, which included a videotape of the traffic stop, the Court concluded that the dog acted instinctively and without facilitation by its handler. The Court ultimately ruled that the dog's interior sniff at issue was not a search under the Fourth Amendment, but merely a natural migration from its exterior sniff. The Court also noted that the search would have been deemed permissible because it is well settled that a dog's positive alert during an exterior sniff of a vehicle establishes the probable cause necessary to search the interior of the car.

PWID is Lesser-Included Offense of PWID Within 1000 Feet of School

2010-10-21T12:34:00.002-04:00

In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant's vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered marijuana from the vehicle.

The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.

One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.

CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable

2010-10-21T09:02:00.003-04:00

U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.

Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.

Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.

The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”

Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”

Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.

Circuit Applies Skilling, Reverses Honest Services Conviction

2010-10-05T12:10:00.001-04:00

In United States v. Riley, 2010 WL 3584066 (3d. Cir. Sept. 16, 2010), the Court held that the district court’s instruction to the jury that honest services fraud did not require scheme to defraud another to obtain money or property, and could instead be based on violation of duty of honest, faithful, and disinterested service, was plainly erroneous. Riley is the Third Circuit’s first application of the Supreme Court’s recent decision in Skilling v. United States, --- U.S. ----, 130 S.Ct. 2896 (2010), holding that to remain within constitutional limitations, the honest services statute at § 1346 is limited to “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”

Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of conspiracy to defraud the public of Defendant James's honest services in violation of 18 U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371. At trial, the District Court instructed the jury that honest services fraud did not require a scheme to defraud another to obtain money or property, and could instead be based on a violation of the duty of honest, faithful, and disinterested service. The Circuit here reversed.

The Court rejected defendants’ arguments that (1) the evidence in support of the honest services charge had an improper spillover effect; (2) the evidence was insufficient to prove “scheme to defraud”; and (3) the district court abused its discretion in not severing the charges.

Circuit Affirms Inventory Search into Closed Containers

2010-10-05T12:07:00.000-04:00

In United States v. Mundy, 2010 WL 3547435 (3d. Cir. Sept. 14, 2010), the court held that (1) the city police department's vehicle stop and impoundment guidelines provided sufficiently standardized criteria regulating scope of permissible inventory search, including searches of closed containers; (2) the officer's reliance on the guidelines was not a pretext for an investigatory search of vehicle.

Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit and a gray plastic bag containing a closed shoebox. The officer removed the shoebox and opened it. Inside, he found a brown paper lunch bag and two clear plastic zip-locked bags filled with a substance that appeared to be cocaine. Inside the paper lunch bag were four more clear plastic zip-locked bags, also containing a substance that appeared to be cocaine. The officer replaced the items, closed the trunk of the vehicle, placed Mundy under arrest, and recovered $1,107 in cash from his person. The officers then notified narcotics agents. They did not complete a Towing Report listing the items found during the search.

At the hearing on Mundy’s motion to suppress, the officer testified that he found the cocaine during a routine inventory search of Mundy's car. Philadelphia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from claims of missing property and damage. Mundy argued that the officers did not have probable cause to search the vehicle, and that the inventory search policy did not sufficiently regulate the officers' discretion with respect to closed containers found in the vehicle. The District Court denied the motion to suppress, concluding that the search was conducted pursuant to a valid inventory search in accordance with departmental policy.

The Third Circuit affirmed, holding that the City police department's vehicle stop and impoundment guidelines, which implemented impoundment provisions of state Vehicle Code, provided sufficiently standardized criteria regulating the scope of inventory searches of automobiles, including closed containers found inside, notwithstanding that the policy did not specifically mention closed containers. The standardized criteria could adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or equivalent terms because the policy explicitly set out its objectives to protect owner's property and shield officers from claims of loss or damage, and sufficiently regulated the scope of the search.

Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo

2010-10-01T16:17:00.001-04:00

In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703.

In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.

On appeal, the Government argues that the Act does not require it to demonstrate Rule 41 probable cause, but rather, under Sec. 2703(d), only “specific and articulable facts” demonstrating reasonable grounds to believe that the contents of the data “are relevant and material to an ongoing criminal investigation.” The Third Circuit held while the Act permits the Magistrate Judge to issue a disclosure order without a warrant showing probable cause, it also gives the Magistrate Judge the option to require a showing of probable cause before issuing a disclosure order.

Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.

2010-10-01T15:16:00.003-04:00

United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses. The most significant legal challenge involved a willful blindness jury instruction.

Stadtmauer argued that the Supreme Court’s opinion in Cheek v. United States, 498 U.S. 192 (1991), precluded a willful blindness instruction. Cheek holds that criminal tax liability does not attach to a person who, in good faith, is ignorant of a legal duty, misunderstands that legal duty, or believes that such a legal duty does not exist. In accord with several other circuits, the Third Circuit concluded that a willful blindness instruction does not run afoul of Cheek, because where the evidence supports a finding that a defendant intentionally insulated himself from knowledge of his tax obligations, the defendant cannot claim good faith ignorance.

In addition, Stadtmauer also challenged as an abuse of discretion the District Court ‘s admitting lay testimony by his company’s accountant about Stadtmauer’s knowing that the tax returns were false. Specifically, this involved Staudtmauer asking the accountant “whether the returns were okay to sign”, which the accountant understood to mean whether the IRS would be likely to detect the problems with the returns. The Third Circuit held that while this was a close question under Federal Rule of Evidence 701, it was not an abuse of discretion, but even if it were, the error was harmless in the context of the record as a whole.

In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

2010-09-29T17:00:00.005-04:00

In Gov’t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant’s possession was a legal necessity.

Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm. At trial, Lewis testified that after falling asleep at George’s home, he awoke to find George sexually assaulting him. Lewis left, returning a few days later to collect some belongings. When Lewis arrived, George became enraged. He brandished a firearm, fired shots into the ground, and ordered Lewis to get into the passenger seat of George’s car. While George was driving, he began insulting George and jabbing the gun into his head. A struggle ensued, the gun fired several times, Lewis gained control of the gun and shot George in self-defense.

At the close of trial, the Government and Lewis submitted proposed jury instructions. Lewis specifically requested that a self-defense instruction be given on the murder charge, but not on the unlawful possession charge. The court instructed as Lewis requested. The jury acquitted Lewis for murder, but convicted for unlawful possession. The Appellate Division affirmed the conviction.

On appeal, Lewis argued that his unlawful possession charge should be vacated. Lewis argued that he possessed the gun only long enough to defend himself in the car, and therefore the court should have instructed the jury on the affirmative defense of temporary justified possession. Because this issue was being raised for the first time, the Court reviewed it for plain error.

The Third Circuit ruled that it was not plain error for the trial court to fail, sua sponte, to instruct the jury on the affirmative defense of justification. In reaching that ruling, the Court examined its decision in United States v. Paolello, 951 F.2d 537 (3d Cir. 1991). In Paolello, the court adopted a four-part test to detemine the availability of a justification defense for an unlawful possession charge. The evidence must support a jury’s conclusion that: (1) the defendant was under an unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4)there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. The Court further noted that this test must be applied restrictively, requiring a high level of proof to establish justification.

Applying the Paolello test to the record, the Court found that Lewis satisfied the first and second Paolello requirements. Discussing the third requirement, the Court agreed with Lewis that a jury could conclude that he could not have avoided the threat George posed without taking immediate possession of the gun while in the car. But the Court refined the third Paolello test to require that the defendant: (a) possess the firearm no longer than is absolutely necessary to avoid the imminent threat; and (b) must dispossess himself of the gun in an objectively reasonable manner once the threat has abated. Reviewing the record, the Court found that Lewis did not meet the third requirement because he did not immediately discard the firearm from the car, or hand the gun to police when he arrived at the police station – Lewis’s decision to discard the gun in a dumpster does not satisfy the dispossession requirement.

The Court thus concluded that under Paolello, as refined, the record evidence did not support a justified possession defense to the unlawful possession of a firearm charge. Therefore, there was no plain error in the trial court’s sua sponte failure to give the justification instruction.
　　

Third Circuit holds Fed. R. App. P. 4(b) not jurisdictional, and explicates the rule on questioning a defendant at trial on post-arrest silence.

2010-09-29T15:55:00.004-04:00

In Gov’t of V.I. v. Martinez, No. 08-2694 (3d. Cir. Sept. 8, 2010) the Third Circuit clarified two rules, on procedural, one substantive.

The defendant was convicted in the Territorial Court of the Virgin Islands for kidnapping for rape. The Appellate Division of the District Court of the Virgin Islands affirmed.Martinez then appealed to the Third Circuit -- late. The procedural issue that the Third Circuit addressed was Martinez’s untimely filing of his notice of appeal.

The Court ruled that the time limitation in Federal Rule of Appellate 4(b), while a "rigid" deadline, is a claim-processing rule subject to forfeiture, and not jurisdictional. In other words, if a criminal defendant files a late notice of appeal, and the Government moves to dismiss the appeal for filing out of time, the Court will dismiss the appeal. But if the Government fails to make a motion to dismiss, or if the Government fails to respond to the Clerk’s Order requesting comment on possible lack of jurisdiction because of untimely filing, the issue is forfeited. In that circumstance, the Court will exercise appellate jurisdiction to address appellant’s claim on the merits.

The substantive issue that the Court addresed was whether the Government violated Martinez’s right to due process by questioning him on his post-arrest silence, contrary to the Supreme Court’s ruling in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Supreme Court held that once a criminal defendant recieves proper Miranda warnings, it is improper for the Government at trial to cause the jury to infer guilt from the defendant’s post-arrest silence. Doyle’s rule is subject to harmless error review.

At trial, Martinez’s testimony during direct examination provided an exculpatory narrative. The Government attempted to counter Martinez’s testimony by asking him whether he had told that exculpatory story to anyone before trial. Defense counsel objected.

The Third Circuit was especially troubled by the Government’s questions about whether Martinez had ever told "anyone" his exculpatory account: "[b]ecause the prosecutor placed no personal or temporal specifications on the questions, they might well have been construed as targeting Martinez’s post-arrest, post-Miranda warning failure to proffer his story to the police." But after a comprehensive examination of the record, the Court found – under harmless error review – that "[u]nder all the circumstances here", the error was harmless beyond a reasonable doubt.
　
　

Third Circuit Denies Victim Mandamus: district court did not abuse discretion in denying motion to allow victim's attorney to appear at sentencing.

2010-09-24T10:39:00.003-04:00

Professor Berman's post on this interesting Crime Victims' Rights Act case, including a link to the Third Circuit's opinion, is available at http://sentencing.typepad.com/, in the blogging from Thursday, September 23, 2010. Short version: no abuse of discretion in denying motion to allow victim's attorney to appear at sentencing because district court recognized victim's right to be heard, and government was advocating for victim (e.g., by filing victim's request for restitution and attorneys fees).

New Impeachment Evidence Can Serve as Basis for New Trial When Evidence Suggests Defendant was Wrongly Convicted

2010-09-08T13:44:00.002-04:00

In United States v. Quiles, Nos. 09-1667 and 09-1686 (August 17, 2010) , the Third Circuit affirmed the district court’s denial of a new trial based on a government witness’ subsequent indictment on sexual assault charges finding that this new evidence was merely impeaching evidence on an unrelated matter that did not go to the heart of the instant case.

Defendants were convicted of money laundering based largely on the testimony of a confidential informant who, following the trial, was indicted in an unrelated matter on charges of child rape and other sexual crimes. Defendants moved for a new trial under Fed. R. Crim. 33 and the district court denied the motion asserting the new evidence was inadmissible impeachment evidence citing United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000), that mere impeachment evidence could not form the basis for granting a new trial.

The Third Circuit applied a de novo standard of review and clarified their holding in Saada. The Court held that Rule 33 permits courts to grant a new trial "when the interest of justice requires it." The Court asserted that "evidence that is merely impeaching is unlikely to reveal that there has been a miscarriage of justice." However, when asked to grant a new trial solely on the basis of new impeachment evidence, if the defendant has demonstrated an exculpatory connection between the evidence and the offense or that the newly discovered evidence totally undermined critical inculpatory evidence, a new trial can be warranted. Determination of the strength and importance of the connection or significance of the newly discovered evidence with respect to a witness’ credibility, is for the discretion of the district court.

The Court further rejected the argument there was insufficient evidence to convict Gloria Quiles. The Court also rejected the argument that German Quiles’ sentence was excessive based on the lesser sentence of the co-defendants, holding the district court explained their reasoning and that co-defendants do not have the right to be sentenced equally.

Sex Offender Requirement to Admit Guilt as Condition of Parole Does Not Violate First Amendment, Due Process or Ex Post Facto

2010-09-08T13:42:00.001-04:00

In Newman v. Beard, No. 08-2652 (August 16, 2010), the Third Circuit affirmed the district court’s dismissal of petitioner’s amended complaint which asserted that the Department of Corrections’ (DOC) requirement that sex offenders admit guilt as a prerequisite to entry into a treatment program, the completion of which is required to be eligible for parole under 42 Pa. Cons. Stat. Ann. § 9718.1, violates petitioner’s: 1) First Amendment right; 2) right to due process; and 3) the Ex Post Facto Clause of the Constitution.

Newman was convicted of two rapes and related sexual offenses. While serving his sentence, Pennsylvania enacted new legislation requiring sex offenders to complete a treatment program to be eligible for parole. A DOC regulation required all inmates to admit guilt in order to attend the program. Newman, who exhausted all his direct and post-conviction appeals, refused to admit guilt and thus was denied entrance into a treatment program and further denied parole.

The Court held that a prison regulation that impinges on an inmate’s constitutional rights is valid if it is reasonably related to a penological interest. The Court found that requiring admission of guilt, as a step toward rehabilitating a sex offender, is such a legitimate interest.

The due process claim failed substantively because refusal to admit guilt as a prerequisite for entry into a sex offender treatment program was not arbitrary and does not shock the conscience. Furthermore, the Constitution does not establish a liberty interest in parole that invokes due process protection. While Pennsylvania law guarantees a prisoner the right to apply for parole and have the application fairly considered, the Court found that the Parole Board gave the application all the consideration it was due, and that refusal to admit guilt can be considered in the decision to deny parole.

Lastly, the Court, assuming that § 9718.1 was given retrospective effect, held that the petitioner failed to demonstrate that the new law created a significant risk of increasing his punishment.

Rehabilitative Needs Can Be Considered to Determine Whether to Revoke Supervised Release and the Duration of Imprisonment Upon Revocation

2010-09-08T13:40:00.001-04:00

In United States v. Doe, No. 09-2615 (August 16, 2010), the Third Court affirmed revocation of Doe’s supervised release and imposition of a 24 month term of imprisonment followed by an additional 12 months supervised release on the basis that Congress intended, in 18 U.S.C. § 3583(e), that District Courts should consider a defendant’s medical and rehabilitative needs in assessing whether to revoke supervised release and the duration of imprisonment that is appropriate upon revocation.

Doe pleaded guilty to possession with intent to deliver five grams or more of crack cocaine and was sentenced to 30 months imprisonment followed by 4 years of supervised release, the terms of which provided that Doe may not possess or use a controlled substance. Doe violated these terms on several occasions by testing positive for use of cocaine. Following a third petition on revocation of supervised release, the district court revoked Doe’s supervised release explaining to the defendant that "...I am doing it in an attempt to protect you from yourself." Doe appealed based on § 3582(a) which forbids a district court from imposing a term of imprisonment for the sole purpose of a defendant’s rehabilitation at the time of post-conviction sentencing.

The Court distinguished post-conviction sentencing from post-revocation sentencing and held that § 3582(a) does not preclude a district court from considering rehabilitative needs when revoking supervised release and requiring the defendant to serve the remainder of his sentence in prison.

Search Incident to Execution of Warrant Upheld

2010-08-27T10:44:00.001-04:00

U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes. The bar was in a high-crime area and was patronized by some with histories of violence, firearm possession, and drug activity. Roughly four months before the raid, a person had been shot at the bar, and a few weeks before the raid an individual was arrested for illegally possessing a firearm inside the bar.

Officers secured the premises inside and outside the bar. Five people-including Allen, who was on duty as a security guard-were standing directly in front of the bar. The SWAT team, wearing armor and with guns drawn, ordered them to lie face down on the sidewalk with their hands in front of them, and explained that they would be detained just long enough to ensure the officers' safety and for the officers to gather the evidence they were seeking. The district court found that Allen, while lying on the ground, volunteered he had a firearm upon observing police take a gun from an individual lying next to him. An officer then searched Allen, seized the gun, and inquired if he had a permit for it. Allen responded that he had an expired, out-of-state permit. Allen was arrested.

In denying Allen’s motion to suppress, the district court concluded that pursuant to Michigan v. Summers, 452 U.S. 692 (1981) (upholding detention of resident during execution of warrant to search house for contraband), and Los Angeles County v. Rettele, 550 U.S. 609 (2007) (approving detention of occupants of home during execution of warrant to search residence and other persons believed to live there for evidence), the search warrant carried with it a limited authorization to secure persons at the bar and that the officers’ actions were reasonable to ensure their safety.

The Third Circuit affirmed. The Court first found Summers distinguishable, because there police had a warrant to search the arrestee’s home for contraband, and thus some basis to suspect the arrestee of potential criminal activity. The arrestee’s detention served to prevent flight, minimize risk of harm from the person who may own the contraband being sought, and assist in orderly completion of the search - of which only minimizing the risk of harm was applicable here. However, relying on Rettele, the Court held that safety concerns alone may be sufficient to detain individuals during execution of a warrant, regardless of whether the search warrant was for evidence (as in Rettele) or contraband (as in Summers). That was the case here, the Court concluded, as police were executing a valid search warrant for evidence at a bar located in a high-crime area, where patrons were known to carry firearms, and where several firearm-related crimes had recently been committed.
The Court distinguished its own precedent in Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), in which plaintiffs’ detention during a search was held to violate the Fourth Amendment, finding the detention there far more intrusive. It also noted that, at least with respect to language in Leveto distinguishing between searches for contraband and searches for evidence, Retelle supersedes Leveto and renders that distinction immaterial.

In first treatment of Gant, Third Circuit applies limited search-incident-to-arrest rule beyond vehicle searches

2010-08-17T20:09:00.006-04:00

In its first treatment of Arizona v. Gant, 129 S. Ct. 1710 (2009), which overruled the Belton rule allowing police to search a suspect's car incident to his arrest even if the suspect no longer has access to the car at the time of the search, the Third Circuit has held that Gant applies to all searches incident to arrest, not just to car searches. The case is United States v. Shakir, No. 09-2665 (3d Cir. Aug. 10, 2010).

The search-incident-to-arrest exception to the warrant requirement permits police to search an arrestee's person and "grab area," to ensure officer safety and guard against evidence destruction. Fueled by Belton, many courts had expanded the exception to permit search of the arrest area even after the suspect no longer conceivably has access to that area (e.g., when he had already been transported from the scene)-- unmooring the exception from its rationale.

Gant put an end to that, but like Belton, was decided in the vehicle context. The Third Cicuit has now made clear that the newly limited search-incident-to-arrest rule applies in all contexts: police may search only the area reasonably accessible to the arrestee at the time of the search.

In Shakir, the arrestee was handcuffed and guarded by two police officers in a crowded hotel lobby. When arrested, a duffel bag he was carrying dropped to his feet. Applying the Gant standard, the Court held that a search of the bag was permissible because -- although Mr. Shakir was guarded and handcuffed -- the bag remained within his reach in a chaotic public venue.

As the result in Shakir suggests, the Gant standard will be broadly, but perhaps not rigorously, applied. As the Court put it: "th[e] standard requires something more than the mere theoretical possibility that a suspect might access a weapon or evidence, [but] it remains a lenient standard."

Fractured Third Circuit panel clarifies government waiver rules and previews looming Fourth Amendment issue

2010-08-10T13:41:00.020-04:00

In a rare, three-opinion panel decision, the Third Circuit has weighed in on -- but, for now, has not resolved -- an important issue concerning the Fourth Amendment exclusionary rule: when a suspect is unlawfully seized, but then breaks away and discards evidence while being chased by police, should the evidence be suppressed? The case is United States v. Dupree, No. 09-3391 (3d Cir. Aug. 6, 2010). The district court suppressed the evidence in question, a gun, and the government appealed. The Third Circuit affirmed the suppression order, with one judge concluding that the government had waived the suppression argument it made on appeal, and another judge concluding that the order should be affirmed on the merits.

A standard exclusionary rule "fruits" analysis would lead to suppression when a "forced abandonment" occurs after an unlawful seizure, since there is no meaningful causal attenuation between the unlawful seizure and the discovery of the discarded evidence. The Third Circuit assumed as much in United States v. Coggins, 986 F.2d 651 (3d Cir. 1993), which presented the same factual scenario. The Coggins court did not have to reach the fruits issue, however, because the Court in that case held that the initial seizure was lawful.

But in Dupree, everyone agreed -- the government a bit later, as explained below -- that there was an unlawful seizure. The fruits issue was thus in play.

In dictum in California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court arguably cast doubt on whether suppression is appropriate in this situation. Hodari D.'s holding is that a show of authority to which a suspect does not submit is not a seizure -- regardless of whether a reasonable person in the suspect's position would have thought he was free to leave. Since there was no seizure in Hodari D. (just as there was no unlawful seizure in Coggins), the Supreme Court had no occasion to conduct a fruits analysis. But the Court stated at one point in its opinion that, had the suspect in Hodari D. been touched by the police and thereafter had broken away and discarded evidence, "it would hardly be realistic to say that disclosure had been made during the course of the arrest." 499 U.S. at 625.

On appeal in Dupree, the government argued that this dictum from Hodari D. -- coupled with the deterrence rationale for the exclusionary rule recently emphasized by the Supreme Court in cases such as Hudson v. Michigan, 547 U.S. 586 (2006) and Herring v. United States, 129 S. Ct. 695 (2009) -- means that evidence discarded after a brief seizure has ended is not fruit of the seizure, and suppression is therefore inappropriate. But in the district court, the government had argued a different point: that, under Hodari D., Dupree had never been seized before discarding the evidence. It was only on appeal that the government conceded that an unlawful seizure -- however momentary -- had taken place (without reasonable suspicion, a police officer had grabbed Dupree for approximately two seconds before Dupree broke away and fled).

Most of the courts that have addressed the dictum from Hodari D. have held that it does not mean that such evidence is admissible -- instead, they adhere to a standard fruits analysis and suppress the evidence. See, e.g., United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991).

Two of the three judges on the Dupree panel were ready to engage the fruits issue on the merits. Judge Fisher would have affirmed suppression of the evidence under a standard fruits analysis, concluding that the government's Hodari D. argument rests on dictum that has rarely been read in accordance with the government's interpretation, and is in "manifest tension" with established fruits law. Judge Cowen, on the other hand, favored the government's reading of the Hodari D. dictum and would have applied it to reverse the suppression order.

Judge Hardiman, the third judge on the panel, declined to address the merits because he concluded that the government waived its fruits argument by not raising it in the district court. Judge Hardiman emphasized that, as an appellant, the government is subject to strict waiver principles no less than are defendants. Simply relying on Hodari D. in the district court was not enough to preserve the government's fruits argument, because Hodari D. had been used below not to argue fruits, but to argue no seizure.

Dupree is a precedential decision, but what law does it announce beyond affirming the suppression order in the case? The decision's impact appears to lie in its "institutional value," a criterion the Third Circuit uses to determine what decisions receive precedential status. Waiver law has developed for the most part with defendants as appellants, so clarifying waiver's impact on the government is crucial. But perhaps even more, the important Fourth Amendment issue raised in this case is bound to arise again -- in this circuit and others -- and the thoughtful analyses of its merits is surely valuable in that context.

Upholding § 922(k) Ban on Unmarked Firearms, Court Charts Course for Second Amendment Challenges

2010-07-29T20:06:00.005-04:00

In a ruling upholding 18 U.S.C. § 922(k), which bars possession of firearms with obliterated serial numbers, the Court sets forth an extensive gloss on the proper approach to Second Amendment challenges under the Supreme Court’s path-breaking decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). Heller concluded that the Second Amendment confers an individual right to keep and bear arms, at least “for the core purpose of allowing law-abiding citizens to ‘use arms in defense of hearth and home.’” Elaborating on that ruling, today’s decision in United States v. Michael Marzzarella, Third Circuit No. 09-3185, is clearly at pains not to open any Pandora’s box. Defendants charged with gun offenses may perhaps find instead a mixed bag.

On the one hand, dicta in the new decision further entrenches a proposition as to which Heller likewise urged it would not “cast doubt”: the Second Amendment “affords no protection,” the Circuit says, “for the possession of dangerous and unusual weapons, possession by felons and the mentally ill, and the carrying of weapons in certain sensitive places.” The decision also finds several routes to upholding § 922(k), even as applied to possession exclusively within the home.

On the other hand, the Court reasons that the statute’s constitutionality should be reviewed under a standard of “intermediate scrutiny,” which is to be informed by reference to First Amendment jurisprudence addressing laws burdening protected expression. The Court further suggests that at least some gun laws may be subject to strict scrutiny. Under even intermediate scrutiny, the purpose served by a regulation burdening a protected Second Amendment interest must not be more than “reasonably necessary.”

Michael Marzzarella was charged under § 922(k) with possession of a firearm with an obliterated serial number. He moved to dismiss the indictment under the Second Amendment, lost, and entered a conditional guilty plea reserving the right to appeal the constitutional question. Affirming the motion’s denial, the Court, with Judge Scirica writing, offers an exegesis of Heller. It finds that decision to suggest a two-step approach to Second Amendment challenges, whereby a court must first ask whether a law imposes a burden on conduct falling within the scope of the Amendment’s guarantee. If it does, the court must next determine whether the law survives the appropriate “form of means-end scrutiny” – that is, rational basis review, intermediate scrutiny, or strict scrutiny.

Elaborating on the first step in this two-step approach, the Court reiterates Heller’s dictate that the Second Amendment “affords no protection to weapons not typically possessed by law-abiding citizens for lawful purposes.” By contrast, “commercial regulations on the sale of firearms do not fall outside the scope of the Second Amendment,” and will thus warrant review of “the nature and extent of the imposed condition.”

Turning to § 922(k), the Court “cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms.” It then concludes that § 922(k) withstands either intermediate or strict scrutiny, although it favors the less demanding of the two: “While it is not free from doubt, we think … § 922(k) should be evaluated under intermediate scrutiny.” Whichever standard applies, the decisive fact is that banning the possession of unmarked firearms “restricts possession only of weapons which have been made less susceptible to tracing,” and not of “any otherwise lawful firearm.” Unable to “conceive of a lawful purpose for which a person would prefer an unmarked firearm,” the Court finds that “the burden will almost always fall only on those intending to engage in illicit behavior.” Accordingly, any intrusion upon a protected Second Amendment interest is trumped by the “law enforcement interest in enabling the tracing of weapons via their serial numbers.” By “enabling law enforcement to gather vital information from recovered firearms,” § 922(k) serves “not only a substantial but a compelling interest.”

Court Construes Meaning of Federal “Official” for Purposes of Threat Statute; Rejects Self-Representation Challenge

2010-07-29T19:57:00.003-04:00

In United States v. Michael Bankoff, Nos. 08-3275 & 08-3688 (July 27, 2010), the Court holds that the federal statute criminalizing certain threats of federal “officials” extends to both “officers and employees.” Separately, the Court determines that there was no abuse of discretion in a district court ruling temporarily barring the defendant from representing himself.

Section 115 of Title 18, enacted in 1984, defines certain crimes relating to threats of a federal “official” “whose killing would be a crime under” 18 U.S.C. § 1114. Section 1114 in turn covers “any officer or employee of the United States.…” Michael Bankoff argued that § 115’s use of the term “official” limited that statute’s scope to “officers” within the meaning of § 1114, thus excluding “employees.” The district court agreed and instructed the jury that each of three Social Security Administration employees allegedly threatened by the defendant had to be “authorized to exercise his or her discretion in the performance of … duties,” rather than engaged in “routine and subordinate functions.” The jury returned a guilty verdict with respect to an SSA “claims representative” and, separately, an “operations supervisor.” The district court thereafter granted the defendant’s Rule 29 motion for acquittal as to the claims representative but upheld the verdict as to the operations supervisor. Both the defendant and the government appealed.

The Court, with Judge Ambro writing, holds for the government. Its analysis foregrounds the rule that “the meaning of statutory language, plain or not, depends on context.” Reviewing the cross-referenced § 1114 as it read at the time of § 115’s enactment, as well as other statutes defining federal “officials” for purposes of coverage under criminal statutes, the Court determines that “Congress intended terms like ‘official’ and ‘officer’ to have a special meaning in § 115 that was not the same as their ordinary, dictionary definitions.” Although Webster’s Third New International Dictionary, as published in 1971, defines an “official” as “a person authorized to act for a government, corporation, or organization,” and an “employee” as “one employed by another, usually in a position below the executive level and usually for wages,” the Court holds that “official” in § 115 encompasses “both officers and employees.” Indeed, it deems that statutory meaning “plain” and consults legislative history only as a consistent “course marker.” Accordingly, the Court not only rejects the defendant’s appeal but vacates the partial judgment of acquittal as to the claims representative, remanding for further consideration of alternative challenges to the sufficiency of the evidence on that count.

As to the right of self-representation, the Court finds no abuse of discretion in the district court’s ruling denying the defendant’s requests to give his opening statement and to cross-examine the government’s first witness. The defendant aired an “angry outburst” during the prosecutor’s opening and then demanded, upon its conclusion, to deliver his own opening pro se. In light of earlier vacillation by the defendant as to whether or not he would proceed with counsel, the Circuit holds that the request could be deemed equivocal, and a hearing on it properly deferred until the conclusion of the first day of trial. After defense counsel concluded cross-examination of the first witness, the district court permitted Bankoff to proceed pro se, and also ultimately allowed him to recall the first witness for a pro se cross. Meanwhile, the court permitted newly stand-by counsel to take over the questioning of a different witness when the defendant’s examination faltered. “In this context, we believe the Court not only acted well within its discretion, but treated Bankoff with the utmost fairness.”

"Career Offender" Designation Not Always Fatal to Sentence Reduction Motion Pursuant to Crack Cocaine Guideline Amendments

2010-07-29T09:48:00.008-04:00

After an extended engagement with some very fine print, the Court holds in United States v. Glenn Flemming, No. 09-2726 (July 27, 2010), that a notable group of defendants are eligible for sentence reductions pursuant to the Sentencing Commission’s retroactive lowering of crack cocaine offense levels. These are all who were designated as career offenders under pre-2003 versions of the Sentencing Guidelines but who, following a determination that the career offender enhancement overstated their actual criminal history, received downward departures to points within a sentencing range yielded by the crack cocaine guideline. The Court also strongly suggests, without deciding, that the opposite result will hold for defendants sentenced under later versions of the Guidelines.

Glenn Flemming’s crack cocaine offenses were determined to have involved a quantity of between four and five grams. The offense conduct occurred during a period that called for application of the 2001 version of the Guidelines. Under the provision then codified at U.S.S.G. § 2D1.1, his sentencing range was 92-115 months. Two previous drug convictions, however, triggered the career offender provision at § 4B1.1 and raised his sentencing range to 267-327 months. The district court ultimately deemed this enhancement to overstate his criminal history, and therefore granted a downward departure for overrepresentation pursuant to § 4A1.3. In determining how far to depart, the court chose to reset the offense level as per § 2D1.1 itself. (Note that such a "vertical" § 4A1.3 departure, previously authorized under United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), is no longer permitted following a 2003 Guidelines amendment defining "departure" for purposes of § 4A1.3.) The court also reset Flemming’s criminal history category. The corresponding sentencing range thus reverted to 92-115 months, as provided by the crack cocaine guideline at § 2D1.1. The court imposed a high-end sentence of 115 months.

In 2008, the Commission designated as retroactive an amendment of the crack cocaine guideline lowering most defendants’ offense levels by two levels. Under the amended guideline, Flemming’s range becomes 77-96 months. He brought a pro se motion pursuant to 18 U.S.C. § 3582(c)(2), which permits district courts to reduce a sentence under an otherwise final judgment when the defendant was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered," if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The Commission, in turn, has promulgated a policy statement at § 1B1.10 barring reductions if a retroactive amendment "does not have the effect of lowering the defendant’s applicable guideline range." In Dillon v. United States, decided last month, the Supreme Court held this policy statement to remain binding on courts despite the generally advisory nature of the Guidelines after United States v. Booker.

Other circuits have lined up in a 3-3 split as to whether defendants in Flemming’s position are eligible for a sentence reduction under the amended crack guideline. In this week’s decision, the Third Circuit places itself in a new majority holding they are. The Court, with Judge Ambro writing, first determines that Flemming’s sentence was "based on a sentencing range that has subsequently been lowered." It devotes the better part of its discussion to scrutiny of the meaning of "applicable guideline range" as used in the Commission’s binding policy statement. Ultimately the Court concludes that neither the text of the pre-2003 Guidelines nor the Commission’s commentary permits a clear conclusion. Those Guidelines were "ambiguous as to whether the ‘applicable guideline range’ is [the defendant’s] pre-§ 4A1.3 departure range (the Career Offender Guidelines range) or his post-§ 4A1.3 departure range (the Crack Cocaine Guidelines range)."

Accordingly, the Court applies the rule of lenity to conclude that defendants such as Flemming are eligible for a reduction of sentence pursuant to the retroactive crack amendment. In a concluding discussion, the Court strongly suggests the opposite will be true of defendants sentenced under the Guidelines in effect as of October 27, 2003, or later. An amendment effective that date may be read to cure the ambiguity in the phrase "applicable Guidelines range" to provide that it means the range yielded by the career offender provision. If that reading is adopted, the policy statement at § 1B1.10 will bar sentence reductions even when district courts departed downward under § 4A1.3 and then selected sentences within the range yielded by the crack cocaine guideline. (The Circuit has previously held that defendants sentenced within the career offender range following conviction for crack cocaine offenses are not eligible for § 3582 reductions. See United States v. Mateo, 560 F.3d 152 (3d Cir. 2009) (Third Circuit Blog post here)).

Defendant's Repeated Presence at Drug Transactions Coupled With Phone Calls Sufficient to Support Aiding and Abetting Conviction

2010-07-12T16:08:00.001-04:00

In United States v. Mercado, No. 09-2681 (3d Cir., July 7, 2010), the three defendants were indicted for aiding and abetting the possession of more than 100 grams of heroin with the intent to distribute within 1000 feet of a school as well as the substantive counts. The only evidence presented regarding Defendant Mercado’s participation in the charged offenses was testimony from Co-defendant Rodriguez-Nunez that he observed Mercardo in the passenger seats of the vehicles driven by Co-defendant Morrisette when Rodriguez-Nunez and Morrisette met to conduct the drug exchanges. Specifically, Rodriguez-Nunez testified that he received drugs through the passenger-side window, where Mercado was seated as the passenger. Evidence was also presented that Morrisette called Mercado during the same time period in which he had received and returned calls from Rodriguez-Nunez. Rodriguez-Nunez admitted that he did not deal directly with Mercado, but only with Morrisette. The court noted that this was a “close case,” but that it was “constrained by a deferential burden” to conclude that a reasonable jury could have found that Mercado’s presence with Morrisette on multiple occasions during drug transactions with Rodriguez-Nunez was sufficient to support its verdict that Mercado, “at a minimum” encouraged the illegal drug activity between Rodriguez-Nunez and Morrisette. The Court ultimately affirmed the district court’s rejection of Mercado’s motion for judgment of acquittal, concluding that “a defendant's presence on multiple occasions during critical moments of drug transactions may, when considered in light of the totality of the circumstances, support an inference of the defendant's participation in the criminal activity.”

Conviction vacated due to prosecutorial misconduct

2010-06-29T17:06:00.002-04:00

In United States v. Liburd, No. 09-3156 (D.VI 06/09/10), the Court of Appeals vacated Mr. Liburd’s conviction in light of repeated prosecutorial misconduct.

Mr. Liburd was in the St. Thomas airport intending to catch a flight to Atlanta. En route to his plane he passed through TSA security and one of the officers noticed on the scanner an image of two large organic masses located within his carry-on bag. He was therefore referred to an inspection station. While there, another TSA officer searched through his bag and asked about the two brick-like objects - Mr. Liburd told the officer that the bricks were “cheese.” Mr. Liburd was subsequently permitted to continue on to his flight. Then, while waiting for his flight, yet another TSA officer approached Mr. Liburd for a “random inspection” because he appeared to be nervous. Upon second search of his carry-on bag, Liburd made a statement that “there’s something in my bag” - the search revealed that the two brick-like objects were over 2 kilograms of cocaine.

Mr. Liburd was subsequently charged with possession with intent to distribute more than 500 grams of cocaine and attempted importation. Liburd moved to suppress the statement “there’s something in my bag” and the cocaine. Defense counsel did not move to suppress the cheese statement because, at that time, the statement had not been disclosed. At the suppression hearing, the district court asked the prosecutor if he intended to use Mr. Liburd’s statement at trial and the prosecutor stated, unequivocally, “No - that he wouldn’t rely on any statements” made by Mr. Liburd. As a result, the district court declined to rule on the admissibility of the statements.

On the eve of trial, the prosecutor disclosed Mr. Liburd’s cheese statement. And then, at trial, the prosecutor repeatedly admitted Mr. Liburd’s cheese statements. Defense counsel objected and ultimately requested a mistrial. The court declined the request for a mistrial but instead gave a curative instruction advising the jurors not to consider statements attributed to the defendant that were improperly introduced. Liburd was convicted and subsequently appealed.

On appeal, Liburd’s primary argument was that the prosecutor’s use of his cheese statement was misconduct, the misconduct violated his right to due process and the district court erred by refusing to grant a mistrial.

The Third Circuit Court of Appeals agreed - it determined that the prosecutor’s pre-trial promise not to rely on “any statement” made by Liburd required the prosecutor to do just that. The government responded by arguing that it did not know of the cheese statement until the eve of trial and argued it could not promise to not rely on a statement which it didn’t know about. The Court quickly rejected the government’s claim that a prosecutor could never make a promise regarding the use of undiscovered evidence. It also added that the claim was irrelevant - that once a prosecutor makes a promise to defense counsel or the court they are committed to keeping them.

The Court also determined that the prosecutor’s actions made a fair trial impossible in this case and therefore violated due process under the Fifth Amendment. Specifically, the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy - but for this promise, the strategy would have been different.

VACATED and REMANDED .

Conviction for Possession of a Weapon in a Prison affirmed

2010-06-29T17:03:00.001-04:00

In United States v. Holmes, No. 09-2846 (W.D.PA 06/07/10), the Court of Appeals affirmed Mr. Holmes conviction for possession of a weapon in a prison.

Holmes was a prisoner at FCI - Loretto who was searched by prison guards and found to be in possession of a utility-knife blade. Holmes was subsequently charged with one count of possessing a weapon in a prison in violation of 18 U.S.C. § 1791.

Holmes proceeded to trial, was convicted and sentenced to 24 months incarceration. On appeal he made the following three claims: 1) the evidence at trial was insufficient for the jury to conclude the blade was a “weapon” within the meaning of 18 U.S.C. § 1791; 2) that the statute requires the government prove Holmes “knew” the blade was a weapon; and 3) that the district court erred when it refused to charge him with misdemeanor possession of a “prohibited object” as a lesser included offense.

As to the first claim, that the evidence was insufficient for the jury to conclude the blade was a “weapon,” Holmes argued that the definition of weapon should be an object whose primary purpose is for use in combat or an object that is inherently a weapon. Based on the invited error doctrine, the Court of Appeals rejected this argument, finding that this definition on appeal was much narrower than the definition proposed and adopted at trial. Specifically, trial counsel proposed a jury instruction which the district court adopted and advised the jury that the definition of a weapon is a “question of fact for you alone to decide.” Because the definition of “weapon” on appeal varied from the definition adopted at trial, the Court of Appeals declined to consider whether the definitions on appeal were correct. The Court then conducted a plenary review of the trial record in a light most favorable to the verdict winner and found the evidence to be sufficient - that blades are restricted items, that Holmes had no legitimate use for the blade the morning he possessed it, that he lied to the officers when asked if he had anything sharp, that he was hiding the blade, and that the prison guards testified they thought the item constituted a weapon. As a result the sufficiency claim was rejected.

As to the second claim, that the statute requires the government prove Holmes “knew” the blade was a weapon, the court of Appeals found that section 1791 had no scienter requirement but noted both parties agreed that a scienter requirement should be implied. The government argued that the statute requires only knowing possession of the object. In contrast, Holmes argued that he could only violate the statute if he knowingly possessed an object he knew was a weapon. The Court of Appeals rejected Holmes’ argument finding no support in the statute, that it lacked the support of congressional intent, and ignored the notion of the need for prison security - that prison security is threatened every time an inmate possesses a blade, regardless of whether or not the inmate “knows” it’s a weapon.

Finally, the Court of Appeals rejected Mr. Holmes third claim, that the district court erred when it refused to charge Holmes with misdemeanor possession of a “prohibited object” as a lesser included offense. The Court conducted a textual comparison between possession of a weapon in prison (§ 1791(d)(1)(B)) and possession of a prohibited object (§ 1791(d)(1)(F) - in doing so the Court found that § 1791(d)(1)(F) applies only to “any other object that threatens the order ... of a prison.” The Court determined that the use of “other” in this subsection meant that it “expressly exclude[d] items discussed in other subsections of § 1791(d)(1).” Because the elements of the misdemeanor offense were not a subset of the charged offense it could not be considered lesser included. AFFIRMED.

Third Circuit Upholds Free Speech Rights of Anti-abortion Protestor Arrested for Demonstrating in Front of Liberty Bell Center.

2010-06-25T14:01:00.003-04:00

In United States v. Michael Marcavage , No. 09-3573 (3d Cir. June 16, 2010), the defendant and some 20 others demonstrated in an anti-abortion protest – with graphic signs and use of a bullhorn – in front of the entrance to Philadelphia’s Liberty Bell Center in Independence National Historical Park, where a long line of tourists were waiting to enter. Although Marcavage did not have a written permit as National Park Service regulations require, a park ranger stated that he would give the demonstrators a verbal permit, but they had to move away from the entrance to a nearby designated demonstration area. When Marcavage refused to move, park rangers arrested him for violating the terms of the permit and interfering with Park Service functions, both misdemeanors. A U.S. Magistrate Judge in the Eastern District of Pennsylvania found him guilty on both counts after a two-day trial, sentencing him to 12 months’ probation. On appeal to a U.S. District Court Judge, the conviction and sentence were affirmed.

The Third Circuit overturned both convictions. First, the Court vacated the conviction on the permit violation count because a verbal permit is invalid, and so there was nothing valid for Marcavage to violate. Second, as to the conviction on the interference with park functions count, the Court necessarily addressed Marcavage’s Free Speech defense. The Court rejected the Government’s arguments that the sidewalk near the Liberty Bell Center is a nonpublic forum, and that its restriction of Marcavage’s speech was content neutral. While the Court expressed some sympathy to the park rangers’ intent to protect captive tourists on line from being disturbed by the bullhorn and offended by graphic images, the Court noted that a fundamental Free Speech principle is that the Government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court found that while the Government’s interests in restricting speech – "ensuring traffic flow and/or public safety, and regulating noise"– were legitimate, they were not sufficiently compelling to satisfy strict scrutiny. The Court noted that the demonstrators caused no more disturbance than others near the Liberty Bell entrance, including drivers of horse-drawn carriages, and that the Government did not prove that anyone was prevented from entering the park. Therefore, the Government "impermissibly infringed Marcavage’s First Amendment right to free speech."

U.S. Supreme Court Severely Restricts Scope of Sentence Reduction Proceedings under 18 U.S.C. § 3582(c)(2).

2010-06-25T11:16:00.005-04:00

As suggested in this Blog’s May 2009 entry, the Third Circuit’s decision in United States v. Dillon, 572 F.3d 146 (3d Cir. 2009) has, indeed, effectively "ended crack litigation", as the Supreme Court, by a 7-1 vote, affirmed the Third Circuit in Dillon v. United States, No. 09-6338 (U.S. June 17, 2010). In brief, Justice Sotomayor’s majority opinion holds that proceedings brought by a defendant’s motion for sentence reduction under 18 U.S.C. § 3582(c)(2) are not governed by the same principles as standard plenary sentencing proceedings – notably, application of United States v. Booker, 543 U.S. 220 (2005) – but rather are limited to the specific reduction permitted by the Sentencing Commission’s relevant policy statement. The effect of Dillon, in light of the recent two-level reduction for crack offenses in the USSG § 2D1.1 drug tables, is to limit eligibility for that reduction only to defendants whose calculated Sentencing Guidelines range is actually reduced by two levels. Defendants with crack offenses whose Guidelines sentences involved career offender status, a Rule 11(c)(1)(C) plea, a mandatory minimum with USSG § 5K/§ 3553(e) relief, a sentencing range that remained unchanged after a two-level offense level reduction, or even an obvious Guidelines calculation error in the original sentencing are simply ineligible for § 3582(c)(2) relief.

"Clearly Established Federal Law" is Determined as of the Date of the Relevant State-Court Decision Subject to Habeas Review

2010-06-02T14:35:00.004-04:00

Greene v. Palakovich, No. 07-2163 (3d Cir. May 28, 2010). A split panel of the Third Circuit held that for purposes of the standard of review for a federal habeas claim set forth in AEDPA, 28 U.S.C. §2254(d)(1), "clearly established Federal law" should be determined as of the date of the relevant state-court decision subject to habeas review. Greene was convicted of second degree murder, robbery and conspiracy and sentenced to life imprisonment. On appeal to the Pennsylvania Superior Court, Green argued, inter alia, that the admission at trial of redacted statements of his co-defendants violated the Confrontation Clause. The Superior Court rejected that claim in a decision dated December 16, 1997. That decision became the final state court decision for purposes of habeas review. Greene’s conviction became final on July 28, 1999. In the meantime, however, the Supreme Court decided Gray v. Maryland, 523 U.S. 185 (1998), on March 9, 1998, which supported Greene’s claim. The issue before the Third Circuit was whether the Gray case was to be considered "clearly established Federal law." The court held that it was not because the relevant state court decision was issued before Gray. One judge dissented opining that the relevant time frame should be the time that the conviction became final.

Drug Trafficking Conviciton Affirmed - No Problems with Time Frame of Conspiracy, Sufficiency of Evidence & Chain of Custody

2010-06-02T14:27:00.006-04:00

United States v. Rawlins, No. 08-2948 (3d Cir. May 26, 2010). The Third Circuit affirmed the defendants drug trafficking conviction and rejected his arguments that:1) the indictment was invalid because it failed to allege the proper time frame for the conspiracy; 2) the evidence was insufficient to sustain the conviction, and; 3) there were gaps in the chain of custody of the evidence.

Rawlins was convicted of several counts of conspiracy and possession with intend to distribute cocaine. The evidence at rial suggested that Rawlins was a baggage handler at an airport and that he participated in a cocaine smuggling operation by switching tags from legitimate luggage to baggage containing cocaine. His first argument on appeal challenged the validity of the indictment which charged conspiracy "from a time unknown and continuing to September, 2004." The court of appeals rejected that argument because the overt acts alleged in the indictment "adequately limited the time frame of the conspiracy" and "all in all, the indictment was sufficient to apprise Rawlins of the charges against him, to enable him to prepare a defense, and to avoid double jeopardy on the same charge."

Rawlins also claimed that the evidence was insufficient to prove that he knew that the luggage that he moved contained cocaine. The Third Circuit found, however, that Rawlins’ "irregular and plainly illegal act of tag switching evidenced his knowledge of cocaine smuggling."

Lastly, although the court of appeals found that although there were gaps in the chain of custody of the cocaine admitted at trial, the district court did not err in admitting that evidence. DEA chemists testified that the substance they received was cocaine, however, there was no testimony regarding the transfer of the substance to the DEA labs from the facilities where they were stored in other states. The Third Circuit held that deference is owed to a district court’s determinations regarding chain of custody and they will be reversed only on a showing of abuse of discretion. Additionally, the court relied on a "presumption of regularity in the handling of evidence by law enforcement" in rejecting Rawlins’ claim.

Child Pornography / Warrants / Sufficiency / Evidence of Age

2010-05-21T14:08:00.000-04:00

U.S. v. Vosburgh, 2010 WL 1542340, April 20, 2010. Vosburgh appealed his conviction following a jury trial of possession and attempted possession of child pornography (18 U.S.C. § 2252). The investigation of Vosburgh began when an IP address linked to his account attempted to download child pornography on the internet. This, in addition to assertions that child pornography collectors maintain materials and rarely dispose of them, was the basis for issuance of a warrant to search Vosburgh’s apartment four months later. In his apartment agents seized an external hard drive which was later found to contain hundreds of images of "child erotica" (defined as sexually suggestive photos not sufficiently lascivious to meet the definition of sexually explicit conduct), and a thumbnail image file which contained two images of child pornography. The two images did not exist as independent picture files on the computer. The government asserted at trial that the existence of the thumbnail files indicated Vosburgh’s "prior possession" and viewing of the full image files, although they had since been deleted.

The Circuit affirmed the conviction in a lengthy opinion, finding that: (1) the warrant to search defendant's apartment, based on use of his IP address to access unlawful internet content four month’s earlier, provided a substantial basis for concluding there was a fair probability that contraband or evidence of an attempt to possess child pornography would be found in defendant's apartment; (2) the government did not constructively amend the indictment as to the count charging defendant with possession of child pornography by impermissibly changing its theory of prosecution, during closing argument, as to which visual depictions of child pornography-thumbnail images or full-size images-defendant unlawfully possessed; indictment did not charge defendant with possessing any particular depiction of child pornography, but with possessing a computer hard drive that contained visual depictions of child pornography, and any variance was not prejudicial as the defense at trial belied any claim of surprise; (3) the evidence was sufficient for the jury to make a finding on the government’s "prior possession" theory, where only thumbnails of files remained on the hard drive, and (4) admission of "child erotica" was not an abuse of discretion, as possession was probative of the defendant's interest in children, the limiting instruction was sufficient.

Defendant Liable for Co-conspirator’s Loss, Applying Victim Enhancement to One Conspirator Did Not Create Unwarranted Disparity

2010-05-17T15:21:00.001-04:00

U.S. v. Robinson, 2010 WL 1610582, (April 22, 2010). Robinson pled guilty to conspiring to steal and convert United States Treasury checks in violation of 18 U.S.C. §§ 641 and 371, arising out of a scheme led by an individual named Jeffress, who provided "checkcashers"-Robinson and other individuals-with stolen Treasury checks and fake id, and drove them to checkcashing stores.

On appeal Robinson challenged the district court's calculation of his sentencing guideline range of 27 to 33 months, as it included the number and dollar amount of checks converted by another checkcasher, with whom Robinson contended he did not conspire. The Circuit affirmed the sentence, finding that the extra loss was properly attributable under § 1B1.3 given Robinson’s implicit agreement to cash stolen checks for Jeffress, the leader of the conspiracy, such that checks cashed by other checkcashers were reasonably foreseeable and within scope and in furtherance of their joint criminal activity. Robinson and the other checkcasher knew each other, Robinson knew that the checkcasher was cashing stolen checks for Jeffress, he and the other checkcasher were in same check-cashing store at the same time on two occasions, and an inference could be drawn that they came and went to that location together driven by Jefress.

Next, the Circuit rejected Robinson’s claim that application of a multiple-victim enhancement to his sentence created an unwarranted disparity where the same enhancement was not applied to a co-defendant. It reasoned that Robinson had failed to show that he was similarly situated to his co-defendant, finding no basis for concluding that the district court viewed co-defendant’s conduct similarly to Robinson's in terms of victims, particularly because the enhancement resulted from his being responsible for the previously mentioned checkcasher’s conduct as well.

Sentence Below Career Offender Guideline Found Procedurally Unreasonable

2010-05-17T11:31:00.003-04:00

United States v. Merced, 2010 WL 1542263, April 20, 2010. Merced pleaded guilty to a drug possession charge, his career offender guideline range was 188 - 235 months. At sentencing, the district court pointed to several factors in support of a below-guideline range, including the "street level" nature of Merced's previous crimes, his own possible drug problem, his troubled childhood, his strong family relationships, and the fact that his longest prior prison term was, at most, four years. The court addressed most of the § 3553 factors, but did not mention unwarranted disparity. The court also noted at one point "I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it's appropriate." The court ultimately sentenced Merced to 60 months.
The Third Circuit, in an opinion thoroughly recapping reasonableness review precedent, found the sentence procedurally unreasonable based on two errors. First, based on the above statements, it found that the district court may have sentenced Merced pursuant to a personal policy disagreement with the scope of the career offender provision of U.S.S.G. § 4B1.1. While recognizing that a variance on such grounds may be permissible, the court explained that the district court must state clearly whether it is granting a variance based on a policy disagreement with § 4B1.1 and, if so, explain its reasoning more thoroughly. Second, the circuit found that the district court failed to analyze a highly relevant sentencing factor, § 3553(a)(6). Finding that Merced’s sentence may have created a risk of unwarranted disparity between similarly situated recidivist crack cocaine dealers, the district court should have considered this issue, and addressed the government's argument that a Guidelines sentence was necessary to promote uniformity in sentencing.

Securities Fraud / Fiduciary Obligations / Omission Liability / Materiality Expert

2010-04-23T16:29:00.000-04:00

In U.S. v. Schiff, --- F.3d ----, 2010 WL 1338141, April 07, 2010, defendants were "high-ranking corporate executives" at a pharmaceutical company, indicted for orchestrating a securities fraud scheme in violation of 15 U.S.C. § 78j(b) and SEC Rule 10b-5. The government filed an interlocutory appeal over a district court order addressing several contested theories of liability as well as expert witness issues under Daubert.

In a lengthy opinion only briefly summarized here, the Court first addressed, and rejected, the viability of the government's legal theory that defendant had a fiduciary duty to rectify codefendant's allegedly material misstatements in subsequent SEC filings. Absent a duty to disclose, silence is not fraudulent or misleading under Rule 10b-5. Pursuant to Oran v. Stafford, a duty to disclose under Rule 10b-5 may arise only in three circumstances: when there is [1] insider trading, [2] a statute requiring disclosure, or [3] an inaccurate, incomplete or misleading prior disclosure. The Court rejected the government’s theory that "high corporate executives" have any general fiduciary obligation to disclose under Rule 10b-5. To the extent the Government argued an alternative theory that this duty to disclose based on statements of another rests instead on prong three of Oran (misstatements), the issue was waived.
The Court next rejected the government’s three liability theories – "all of a piece," "duty to update," and "duty to correct," – with respect to defendant’s omissions from his own statements, which did fall under Oran’s third prong as the allegations failed to suffice under those theories.

With regard to exclusion of the government's proposed expert-who would have testified to Bristol's stock price drop as evidence of Rule 10b-5's materiality element- the Circuit found no abuse of discretion. The methodology of the government's expert, did not fit the issues and was not relevant to primary issue of materiality, as the methodology failed to control for unrelated adverse events that were simultaneously disclosed and that could have caused stock price drop.

Court Finds Inadvertent Out-of-jurisdiction Arrest Reasonable; Declines to Address Sentencing Entrapment and Manipulation Doctrines

2010-04-23T14:40:00.002-04:00

In U.S. v. Sed, --- F.3d ----, 2010 WL 1292152 (Apr. 6, 2010), defendant, convicted of conspiracy to distribute and PWID, challenged (1) the validity of his arrest in Ohio by Pennsylvania state police and (2) the denial of a sentencing reduction based on sentencing entrapment and/or manipulation.

First addressing Sed’s arrest, the Circuit held it reasonable under Fourth Amendment despite the fact that Pennsylvania state police violated Ohio law by seizing him outside of their jurisdiction. The Court first rejected the notion that any violation of state law constituted an ipso facto violation of the Fourth Amendment, citing Virginia v. Moore, 553 U.S. 164 (2008). Next, the Court found the arrest reasonable under the totality analysis, based on the fact that defendant had committed a serious drug crime in Pennsylvania, was acting in furtherance of conspiracy to distribute drugs in Pennsylvania at time he was seized, was responsible for a last-minute change of plans such that the second controlled buy occurred close to the state line, and that the police intended to arrest Sed in Pennsylvania and believed that they had done so at the time.

Next the Court addressed Sed’s challenges to his sentence, claiming the police entrapped him into selling drugs in amounts beyond what he what he was predisposed to sell (sentencing entrapment) and that they unfairly strung out their investigation solely to increase the quantity of drugs he sold (sentencing factor manipulation). The Court noted a Circuit split, but declined to address the validity of the doctrines in this case. Instead, it found that Sed could not establish the requisite factual predicates for either, given the District Court found that Sed had perjured himself when he testified regarding his lack of predisposition to sell cocaine and also because the police were not required to arrest Sed after the first controlled purchase.

"Seemingly innocent" activity sufficient to support probable cause for search warrant in light of initial tip and subsequent police surveillance

2010-03-25T11:52:00.004-04:00

In United States v. Stearn, 08-3230 (3d Cir. March 9, 2010), the Third Circuit reversed a district court's suppression order after concluding that the searches conducted were supported by probable cause. Based on a tip from a confidential informant that defendants Michael and Joseph Doebley were selling cocaine powder supplied to them by Edward Stearn, police officers began surveillance of the defendants' homes and vehicles. The officers observed two controlled buys of cocaine involving one of the defendants, real estate records, utility bills, and police observation corroborated the informant's statement that defendants' cocaine business operated out of a gym, and the informant demonstrated knowledge of defendants' homes, cars, and daily routines. After the surveillance was completed, officers sought search warrants for five properties and 2 vehicles owned or frequented by the defendants. A magistrate judge issued the warrants and drugs, drug paraphernalia and money were recovered from all but one residence.

The district court granted the defendants' motions to suppress the recovered evidence because it found insufficient evidence of probable cause within the supporting search warrant affidavit. The court found that the affidavit contained no evidence regarding the reliability of the informant and no information connecting any of the searched locations to actual drug dealing activity. Because the court found the affidavit's defects so severe, it perfunctorily declined to apply the Leon "good faith" exception to the exclusionary rule. Finally, the court applied its suppression order to all of the defendants without determining standing as to each individual defendant.

On appeal, the Third Circuit found the district court's across-the-board exclusionary remedy to be a fundamental error. While the government had conceded each defendant's standing to challenge one or more specified searches, it actively disputed each defendant's right to challenge all the searches. The district court's failure to account for the government's defendant-specific concessions resulted in evidence being suppressed against a defendant who did not even challenge its admissibility, much less prove an expectation of privacy therein. Notwithstanding this fundamental error by the district court, however, the Third Circuit was unable to resolve the case on the standing prong alone because of the government's concessions regarding standing for each defendant as to one or more of the searches. Thus, the Court was compelled to determine the constitutionality of each search on a defendant-specific basis.

Turning to the probable cause determination, the Third Circuit found that the district court's probable cause analysis erroneously discounted the reliability of the confidential informant where the informant's tip was corroborated in significant part by independent police observation. Officers corroborated the defendants' drug involvement through two controlled buys, real estate records, utility bills, and the informant's knowledge of the defendants' homes, vehicles, and daily activities. Although there was no direct evidence that the defendants were dealing drugs out of their homes, the Court found circumstantial corroboration of the informant's tip in the defendants' "peculiar shuttling" among their properties and their frequent stops at a gym which police had linked to two drug deals. Finally, the Court found that the district court's refusal to consider Third Circuit precedent stating that it is reasonable, under certain circumstances, to infer that drug dealers often store evidence of drug crimes in their residences resulted from an unduly restrictive parsing of the case law.

Although the Third Circuit ultimately determined that the magistrate judge had a sufficient basis for his probable cause determination, it further held that, even if probable cause was lacking, the extreme sanction of exclusion was not warranted in this case. The Court noted that exclusion is a rare circumstance where a magistrate judge has found probable cause. Here, the district court improperly truncated its good faith analysis based on its erroneous characterization of the "bare bones" nature of the affidavit and its failure to credit circumstantial corroboration of the informant's tip. Furthermore, given the complexity of the district court's probable cause analysis, it was unreasonable to expect that lay officers executing the search warrant would have reasonably believed that the magistrate judge was incorrect in his probable cause determination.

Finally, examining each property in turn, the Third Circuit concluded that the informant's tip, in conjunction with the evidence adduced by officers in subsequent investigation, afforded the magistrate with a substantial basis for determining probable cause existed to search each of the properties at issue. The Court found each residence searched to be part of a network of suspiciously titled homes connected to at least one of the three defendants whose involvement in the drug trade had been confirmed through surveillance and controlled buys. Accordingly, the Court reversed the district court's suppression order and remanded the case for further proceedings.

Sentence vacated and remanded where the district court did not properly apply U.S.S.G. 2C1.1(b)(2) to determine the amount of a "benefit received"

2010-03-22T17:19:00.005-04:00

In United States v. Lianidis, No. 09-1165 (D.NJ 03/19/10), the Court of Appeals vacated and remanded for re-sentencing where the district court did not properly apply section 2C1.1(b)(2) - a guideline provision which determines the amount of a “benefit received” for sentencing purposes.

Lianidis was the president of DMS, a computer engineering company founded by her husband. DMS was subsequently awarded government contracts to set up computer systems for the FAA. These contracts were awarded by a longtime friend of Lianidis, Darrell Woods (an employee of the FAA), who had received numerous cash payments (i.e bribes) from Lianidis which totaled over $150,000. While the contracts were secured with bribes, the work performed by Lianidis’ company was deemed “legitimate.” Thereafter, over a six year period, the FAA paid Lianidis’ company more than $6.7 million dollars.

Because of the bribes, Lianidis was indicted and pled guilty to three counts of bribery of a federal employee. Of importance, there was a plea agreement which expressly stated there was no agreement under § 2C1.1(b)(2) as to the calculation of “value, benefit, and loss.” This was the subject of dispute at sentencing and then again on appeal.

Prior to sentencing, the probation office recommended a 16-level increase, under § 2C1.1(b)(2), concluding that the “benefit received” by Lianidis was between $1,000,000 and $2,500,000. At sentencing, the district court agreed - the court calculated the “benefit received” using two approaches: the first was the “Landers approach” (based on United States v. Landers, 68 F.3d 82 (5th Cir. 1995)); and the second was the “salary approach.” The "Landers approach" calculates “benefit received” by deducting direct costs, but not indirect costs, from the gross proceeds of the illegally obtained contracts. The “salary approach” uses the salaries earned as a proxy for the “benefit received.”

Using both approaches, the district court found that the “benefit received” was in excess of $1,000,000. Consequently, the 16 level enhancement under § 2C1.1(b)(2) was applied which increased Lianidis’ base offense level to 25. With a criminal history category I the advisory guideline range was 57 - 71 months. Due to Lianidis’ personal circumstances, the Court granted a nine month downward variance and sentenced her to 48 months imprisonment. Lianidis appealed.
On appeal, Lianidis argued that the district court erred both in the application and use of the “Landers approach” as well as the use of the “salary approach.” And, as a result, Lianidis argued the district court committed clear error in its application of the 16-level enhancement.

First, with regard to the “Landers approach,” Liandis argued that the “benefit received” should be calculated by subtracting “legitimate costs” from the gross revenue - a slightly different approach than the method used in Landers. The Third Circuit disagreed. The Court, referring to an application note of § 2C1.1, observed the phrase “benefit received” was discussed in terms of “net value” and “profit.” With regard to “net value” the Court, relying on Landers, found that only "direct costs" should be subtracted because “indirect costs, like bribes, do not impact the harm caused by the bribery, and allowing the deduction of interest costs would foster inconsistency in sentencing.”

Liandis argued in the alternative, should the Court apply the "Landers approach," that "direct costs" should include both company overhead as well as her and her husband’s salaries. In response, the Third Circuit again referred to Landers to determine what constituted a “direct cost.” After providing lengthy definitions of both “direct” and “indirect costs,” the Court stated “succinctly whether a cost is direct or indirect depends on whether it can be easily attributable to the specific contract at issue.” In Lianidis’ case, the district court concluded (without explanation) that the company overhead and salaries were not “direct costs.” Consequently, the Third Circuit remanded the matter because the district court did not engage in the proper analysis.

Finally, with regard to the “salary theory,” Lianidis argued that the district court erred in calculating the “benefit received” in terms of “profit” based on her and her husband’s salaries. Again citing an application note to § 2C1.1, the Third Circuit agreed, stating that the “benefit received” is not the salary earned (legally), but rather the “net value” received by the company pursuant to the government contract.

In conclusion, the Court adopted the Fifth Circuit’s approach in Landers and concluded that “the ‘benefit received’ under § 2C1.1(b)(2) is the net value, minus direct costs, accruing to the entity on whose behalf the defendant paid the bribe.”

Of note, while Judge Hardiman agreed with the majority’s adoption of the "Landers approach," he dissented. He found no clear error and thought the sentence should have therefore been affirmed.

No per se rule that a prior conviciton under 4B1.1 must be established by a "certified" record

2010-03-22T12:53:00.002-04:00

In United States v. Howard, No. 08-4748 (E.D.PA 03/19/10), the Court of Appeals affirmed the district court’s reference to “uncertified documents” in its determination that Mr. Howard was a career offender under U.S.S.G. § 4B1.1.

Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school. At sentencing he objected to application of the career offender enhancement based on two prior drug convictions. As to one of the prior convictions, the district court relied on an incomplete certified conviction record and an uncertified Municipal Court document which indicated that Howard was convicted of felony drug conspiracy (no sentencing transcript was available). As a result, Howard’s base offense level of 13 (pursuant to § 2D1.1) was enhanced to 32 (pursuant to § 4B1.1). The district court sentenced Howard to 148 months and Howard appealed.

On appeal, Howard did not contest that he had two prior drug convictions, but rather argued that the district court impermissibly relied on uncertified documents in determining whether or not the career offender enhancement applied. The Court of Appeals disagreed. In doing so, the Court held that “evidence presented at sentencing must have a sufficient indicia of reliability to support its probable accuracy.” That the fact of a prior conviction is not an element of the crime and all the government needs to do at sentencing is present evidence that establishes the conviction by a preponderance of the evidence. The Court added that there is no “per se rule that certified copies of conviction must be offered by the government” to determine whether or not the career offender enhancement applies (a similar argument was rejected by the Court in United States v. Watkins, 54 F.3d 163, 168 (3d. Cir. 1995)).

The Court concluded that the district court’s reliance on the incomplete certified conviction record and the uncertified Municipal Court document to establish a prior drug conviction for career offender purposes was in keeping with the standard set forth in Shepard v. United States, 544 U.S. 13, 16 (2005)(a sentencing court may determine the existence of a prior conviction by relying on “the terms of the plea agreement, the charging document, the transcript of the colloquy ... or other comparable judicial record of sufficient reliability”)(emphasis added).

Owner of Sporting Goods Store Must Forfeit Firearms Following Conviction for Being a Drug User in Possession of Firearms

2010-03-18T14:04:00.008-04:00

United States v. Cheeseman, No. 09-1756, 2010 WL 699550 (3d Cir. Mar 2, 2010). The Third Circuit affirmed the district court’s forfeiture of some 600 firearms, potentially valued at $500,000, in connection with the defendant’s conviction for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3).

The defendant, Cheeseman, was the owner and proprietor of a sporting goods store that maintained an inventory of approximately 600 firearms. Cheeseman developed an addiction to crack cocaine and eventually moved from his home into the warehouse of the store. The district court found that Cheeseman and other addicts used crack on the premises. Additionally, Cheeseman denied being a drug user on his renewal application for his federal firearms dealer license. Cheeseman eventually pleaded guilty to possession of firearms and ammunition by an unlawful user or addict of a controlled substance. The district court ordered the forfeiture of the firearms, which Cheeseman claimed to be valued at $500,000, pursuant to 18 U.S.C. § 924(d)(1). Cheeseman raised two arguments on appeal, viz., that the forfeiture was improper because the property was neither "involved in" nor "used in" a knowing violation of 18 U.S.C. § 922(g)(3) and that forfeiture violated the Excessive Fines Clause of the Eighth Amendment. Both arguments were rejected by the Third Circuit.

The Court of Appeals noted that 18 U.S.C. § 924(d)(1) would permit only forfeiture of firearms that were "involved in" nor "used in" Cheeseman’s offense. The Court held that because "mere possession" does not constitute use, the firearms were not "used in" the offense. The Court further held, however, that "the term's plain meaning leads to the conclusion that the seized firearms … were "involved in" the offense to which Cheeseman pled guilty because the firearms served as the foundation of his criminality and conviction. Indeed, without the firearms, there would have been no crime." The Court explained:

possession of firearms and ammunition is sufficient for a district court to find that the property was "involved in" a § 922(g)(3) offense. This interpretation of "involved in" makes sense in light of Congress' intent to keep firearms out of the possession of drug abusers, a dangerous class of individuals, and supports a finding that the seized firearms and ammunition were "involved in" Cheeseman's § 922(g)(3) offense. This conclusion is bolstered by the District Court's findings that: (1) Cheeseman had unfettered access to the full panoply of weapons located in [the store]; (2) he used crack cocaine in and around those weapons; and (3) he brought other drug abusers to the store and warehouse to smoke crack.

The Court also rejected Cheeseman’s argument the forfeiture constituted an excessive fine in violation of the Eighth Amendment because "the forfeiture of Cheeseman's firearms and ammunition was not grossly disproportionate to his 18 U.S.C. § 922(g)(3) offense because he was abusing drugs while illegally possessing firearms, he was part of the class of persons whose behavior the statute criminalized, and the value of the firearms was at most two times the maximum penalty imposed by the statute."

Deficient Seach Warrant in Child Porn Case "Saved" by Good Faith Exception

2010-03-18T14:00:00.003-04:00

United States v. Tracey, No. 08-3290, 2010 WL 681364 (3d Cir. Mar. 1, 2010). The Third Circuit reversed the district court’s suppression order in a child pornography case and held that although the search warrant was deficient because it did not clearly indicate that the items-to-be-seized, the good faith exception applied because the "officer could understandably believe that he had met the requirements of the Fourth Amendment."

The defendant, Tracey, was the subject of a state investigation into the internet distribution of a certain video containing child pornography. Tracey’s IP address was identified as participating in the distribution of the video via a peer-to-peer sharing program. Based on that information, the local police obtained a search warrant for Tracey’s residence from a state magistrate. The warrant identified the items to be searched and seized as follows: "Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs… COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media." A seven-page affidavit of probable cause was attached to the application for the warrant which described more specifically the items subject to the search. The Government conceded that the description of the items to be searched for and seized lacked the particularity required by the Fourth Amendment unless the affidavit of probable cause was incorporated. The Third Circuit found that the affidavit had not been incorporated because the application and the warrant did not contain any explicit words of incorporation and the description of the items to be searched for and seized did not incorporate the affidavit.

The Court of Appeals further held that while the warrant was constitutionally deficient because it lacked particularity, the exclusionary rule should not have been applied because the police acted in good faith in relying on the warrant because they could have reasonable believed that the warrant incorporated the narrower affidavit.

Court Upholds Constitutionality of "SORNA"

2010-02-15T14:30:00.002-05:00

In United States v. Shenandoah, No. 09-1205 (Feb. 9, 2010), the Third Circuit confronted one of what it called “hundreds of similar challenges” filed in federal courts to the Sexual Offender Registration and Notification Act (“SORNA”). In one fell swoop, it rejected a broad range of constitutional challenges in the case of a defendant convicted of statutory rape a decade before the law’s enactment in 2006.

Upon being paroled, Paul Shenandoah registered as a sex offender under the law of New York State, where he had been convicted. In August of 2007, he moved to Pennsylvania for employment as an iron worker. He did not register in that state as a sex offender or modify his New York registration to reflect his change of residence and employment. SORNA, as construed by the Court, requires persons in his position to keep their registration current on and after July 27, 2006. The defendant entered a conditional guilty plea reserving the right to appeal the district court’s rejection of his motion to dismiss on various grounds. He was sentenced to 12 months and one day of imprisonment, to be followed by ten years of supervised release.

As a threshold matter, the Third Circuit found it immaterial that neither Pennsylvania nor New York had complied with SORNA’s statutory mandates regarding, for instance, provision of registration information to certain entities. The Court found it sufficient simply that Pennsylvania and New York each operated sex offender registries after SORNA’s effective date. In a related conclusion, the Court held that the defendant could have complied with SORNA by following the two states’ laws, and thus rejected a due process challenge premised on the contention that compliance was impossible.

The Court next rejected an ex post facto challenge grounded on the fact that the defendant’s release from prison and original registration obligation predated SORNA’s enactment. There was no retroactive application of any law inflicting greater punishment for preexisting conduct, the Court concluded. Rather, the defendant committed a new crime by moving from Pennsylvania to New York roughly 13 months after SORNA’s enactment and then failing to keep his registration in the two states current. The Court did not pause to mention a challenge pending before the Supreme Court, Carr v. United States, No. 08-1301 (Carr’s merits brief here; brief of the United States here), concerning the Ex Post Facto Clause’s application to a registered offender whose travel in interstate commerce predated SORNA’s enactment. Oral argument is to be heard in that case next week.

Turning to a challenge under the Due Process Clause, the Court found that the conviction was not infirm for lack of notice. The Court found dispositive the undisputed facts “that Shenandoah knew that he was required to register under New York law” and that New York law “mandated that he update his registration if he traveled or moved out of state and that he register in the new state.” It was immaterial that the notice provided by New York’s registration form did not explain that a failure to register would be a violation of federal as well as state law. In a related holding, the Court concluded that SORNA is not a “specific intent law,” rejecting the argument that the indictment failed to allege a prima facie violation.

Nor was the Court impressed by the argument that Congress exceeded its Commerce Clause powers. Citing three categories of activity that United States v. Lopez, 514 U.S. 549 (1995), identified as within Congress’s authority to regulate, the Court found that SORNA was a valid regulation of “persons in interstate commerce” and of the “use of the channels of interstate commerce.” It reasoned that Shenandoah’s relocation made him “undeniably a ‘person … in interstate commerce.'” As to the regulation of “use,” the Court quoted a 1925 decision of the Supreme Court upholding Congress’s power to “forbid or punish use of interstate commerce ‘as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.’”

The Tenth Amendment did not require reversal, the Court next held, because the defendant, as a private party, had no standing to assert any challenge to federal encroachment on state sovereignty.

The Court concluded its merits analysis by rejecting the defendant’s claim that SORNA infringed upon his constitutional right to travel. The Court reasoned that the defendant “may travel interstate, but when he does, must register in the new state.… [M]oving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon anyone’s right to travel.” The Court also found it “worth noting” that the right to travel “is not an absolute right,” and that the burden imposed by SORNA “is necessary to achieve a compelling interest.… in preventing future sex crimes.”

The Court left open a possibility of a successful challenge on the part of a narrow class of persons “who, for various reasons, did not have a registration requirement prior to the passage of SORNA.” Such persons, it indicated, would have standing to challenge a series of implementing regulations adopted by the Attorney General in 2007 and 2008 to clarify SORNA’s application. As to this defendant, the Court held that the regulations were inapplicable.

Circuit Reverses Grant of Acquittal in Drug Conspiracy

2010-02-02T11:59:00.000-05:00

United States v. Boria, No. 08-2550, 2009 WL 282088 (Jan. 26, 2010). Following a jury verdict of guilty on charges of aiding and abetting and conspiracy to possess with intent to distribute cocaine, the district court entered a judgment of acquittal, finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. The Circuit reversed, holding that the conconspirator’s "crucial" testimony, combined with suspicious circumstances under which defendant became involved with the tractor-trailer carrying the drugs, established that defendant knew drugs were involved.

The evidence at trial showed that another conspirator, Diaz, brought to Philadelphia a tractor-trailer which contained one hundred kilograms of cocaine. A DEA informant, Alvarado, received a phone call from another conspirator, Morel, who was searching for a garage which could fit a tractor-trailer for unloading. Alvarado met with Morel and four other Mexican nationals, none of which were Boria. An overnight parking location was chosen. The next morning Alvarado returned to the parking lot to take Diaz to breakfast. When the two arrived at the diner, Alvarado received a phone call from Morel informing Alvarado that he had sent someone to take the tractor-trailer to a garage for unloading. Alvarado testified that he was told by Morel that Boria "was supposed to take the tractor-trailer from [Alvarado] and take it to a garage to unload the drugs that were in the back of the tractor-trailer." On cross, Alvarado maintained that Boria was responsible for "taking the truck from [his] hands to take it to another garage to unload it," and for "tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck." Morel informed Alvarado and Diaz that this man would identify himself as "Ruben," and Alvarado identified Boria as Ruben. When Alvarado and Diaz pulled into the parking lot. Boria identified himself as Ruben and confirmed that Morel had sent him. Alvarado acknowledged he had never before seen Boria. Diaz then climbed into the driver's side of the truck and Boria climbed into the passenger's side. The truck left its location with Alvarado following, at Morel's request, and eventually stopped in a K-Mart parking lot. Alvarado exited his car and approached the truck to ask Boria why they had stopped there because it was a "hot area." When Alvarado reached the tractor, Boria was on his cell phone. After Boria hung up, Alvarado asked where the truck was heading. Boria responded that he was going to a garage in North Philadelphia, but that he was waiting for someone to open it. When the truck pulled out of the parking lot, it was stopped by the police, who had been observing the truck since receiving Alvarado's tip. Police gained access to the locked trailer portion with a key on the ring they found in the ignition. After three hours of searching, the police located one hundred kilograms of cocaine hidden in boxes, which themselves were hidden in the middle of the trailer within pallets of mostly rotten fruit.

The District Court entered a judgment of acquittal for Boria finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. The court found: "there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer; no probative evidence of the substance of any communications in which Mr. Boria engaged; no evidence that Mr. Boria ever ‘possessed’ or saw the cocaine, or that he ever saw the back of the trailer unlocked; no evidence of any prior relationship between Mr. Boria and any co-conspirators; and no evidence that Mr. Boria previously had been involved in any drug-trafficking activities."

In reversing, the Circuit held that a rational trier of fact could infer that Boria knew drugs were involved based on Alvarado's testimony and the suspicious circumstances under which Boria became associated with the tractor-trailer. Boria was responsible for taking the truck for unloading, but first had to arrange a garage. He knew exactly which truck to approach, confirmed Morel had sent him, and began directing the truck to a garage. A reasonable juror could conclude, based on this arrangement, that Boria knew something criminal was afoot. Alvarado's testimony that Boria was responsible for unloading the drugs, attributable to Boria as a co-conspirator, then serves as the crucial additional fact imputing knowledge of drugs, as opposed to some other form of contraband. Accordingly, a rational trier of fact could have found Boria guilty, beyond a reasonable doubt, of conspiracy to possess with intent to distribute cocaine and aiding and abetting the possession of cocaine.

Circuit Affirms Summary Judgment for State Defendants in Delaware Lethal Injection Case

2010-02-02T11:33:00.002-05:00

Jackson v. Danberg, No. 09-1925 and 09-2052 (Feb. 1, 2010). In a § 1983 class action challenging the constitutionality of lethal injection in Delaware, neither (1) Delaware’s record of errors in implementing its execution protocol, nor (2) the absence of a planned alternative to peripheral venous access, show a substantial risk of serious harm under the standard announced in Baze v. Rees. The District Court’s order of summary judgment for the state defendants is affirmed, and the stay of executions pending appeal is dissolved.

In this long (47-page) opinion, the Third Circuit holds that the practice of lethal injection in Delaware is constitutional under Baze v. Rees, 553 U.S. 35 (2008). The Supreme Court held in Baze that the standard governing method-of-execution claims brought under § 1983 is whether the challenged practice poses a "substantial risk of serious harm" to the condemned prisoner. Finding no such risk in Delaware, the Third Circuit affirms the District Court’s grant of summary judgment for the state defendants, and dissolves the stay of executions that had been in place since the beginning of this litigation, in May 2006. Although the opinion notes that "the worrisome course [Delaware] appears to have taken at times under its formal protocol . . . gives us great pause," Slip op., 46, it nonetheless gives the green light for executions to resume in Delaware.

The opinion is notable for its lengthy discussion of the plurality opinion and the multiple concurring and dissenting opinions in Baze, although both parties in this case had agreed that the applicable standard was the plurality’s "substantial risk of serious harm" standard. The opinion then discusses the plaintiffs’ substantive claims: first, that the record of failures to comply with the execution protocol shows an unconstitutional risk of similar failures in the future; and second, that Defendants’ failure to adopt alternatives to peripheral venous access, for the foreseeable possibility that the executioners will be unable to establish peripheral access in a condemned prisoner, also show unconstitutional risk.

With regard to the plaintiffs’ evidence of Delaware’s failures to conduct a single of the 13 executions by lethal injection without deviating from the written protocol, the opinion finds that none of the mistakes shows a substantial risk. The court opens by saying, "the record is bereft of evidence that any of the thirteen inmates Delaware has executed using the three-drug protocol was still conscious when injected with potassium chloride." Slip op., 35, but then acknowledges that the evidentiary proffer regarding the Brian Steckel execution was disputed before the District Court, and some "evidence indicat[ed] that he had not received the appropriate dosage" of the anesthetic. Slip op., 36. The opinion then states, "Even assuming that Steckel suffered great pain during his botched execution, however, does no preclude summary judgment for Delaware, as Baze left no room for doubt that a single instance of mistake does not suffice to demonstrate a substantial risk of serious harm." Id. The court finds Plaintiffs’ other evidence of noncompliance with the written protocol, such as failure to follow the requirements for the training of execution personnel, similarly does not show unconstitutional risk.
Plaintiffs’ second claim was that Delaware’s failure to provide for an alternative to venous access poses a risk of a failed execution, similar to what happened when Ohio tried, and failed, to execute Romell Broom in September 2009. The panel relies on Baze, which did not require a backup plan, to hold that this does not render Delaware’s protocol unconstitutional.

Finally, the opinion comments on the Defendants’ cross-appeal issue: the District Court’s
grant of a stay pending appeal. While acknowledging that the District Court’s potential reasons continuing the stay are obvious, the panel "encourage[s] district courts int his circuit to state their reasons for granting stays pending appeal." Slip op., 46.

Submitted by Maria Pulzetti

Court Upholds Denial of IA Claim: No Evidentiary Hearing was Necessary and Petitioner Failed to Show Prejudice

2010-02-01T13:31:00.002-05:00

In Palmer v. Hendricks, No. 06-2991 (3rd Cir. Jan. 26, 2010), the Third Circuit affirms the district court’s denial of habeas relief on Palmer’s claim that his trial counsel was ineffective for failing to advise him of his right to testify. Petitioner failed to show prejudice resulting from counsel’s failure to advise him of his right to testify, where petitioner’s factual proffer regarding this ineffectiveness claim did not include a proffer of his testimony, had he received proper advice and chosen to testify.

The Circuit also affirmed the District Court’s denial of an evidentiary hearing on this claim. Palmer raised this claim in state post-conviction proceedings, and the state court held that, based on the record, Palmer had been informed sufficiently during trial of his right to testify. The state court based this on the transcript, which showed one time trial counsel requested and received time to consult with his client, and also showed that the judge read to Palmer, and later to the jury, the instruction on a criminal defendant’s election not to testify. The state court reasoned that if Palmer understood the choice not to testify, he understood that he had the choice to testify.

This opinion is most notable for Section III.A.1, a lengthy discussion of evidentiary hearings in federal habeas. The Third Circuit restates the standard for an evidentiary hearing in federal court, although it finds that Palmer was not improperly denied such a hearing:

because Palmer’s petition does not contain sufficient "factual allegations, which, if true, would entitle the applicant to federal habeas relief," the District Court did not abuse its discretion in declining Palmer’s request for an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

The longer discussion of Landrigan, however, includes what the opinion describes as a "consideration" for a District Court to make when deciding whether to hold an evidentiary hearing: "‘if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.’ Schriro, 550 U.S. at 474." This is only the second time the Third Circuit has relied upon that language; the first time was in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), another Fuentes opinion.
Two additional things stand out in this section: first, the opinion ignores the previous week’s decision in Wood v. Allen, 558 U.S. ___ , No. 08-9156 (Jan. 20, 2010), which of course was not decided under § 2254(e)(2). Second, in footnote four, the court states that Palmer was diligent in developing his claim in state court, and affirms that the "failure to develop" language in 2254(e)(2) is defeated where a petitioner makes a factual proffer (in this case, via affidavit) and requests an evidentiary hearing.

In III.A.2, the opinion addresses the prejudice prong – somewhat ignoring the state court’s analysis of the deficient performance prong. "Notably, Palmer did not set forth the facts to which he would have testified had he taken the stand at his trial." Slip op., 8. Without such a proffer, the court holds, he cannot show prejudice. In III.A.3, the opinion notes that structural error does not arise from counsel’s failure to advise a defendant of the right to testify.

Submitted by Maria Pulzetti

Pennsylvania Resisting Arrest is Crime of Violence Under Begay

2010-01-24T19:57:00.005-05:00

In United States v. Stinson, No. 08-1717, the Third Circuit recently ruled that Pennsylvania Resisting Arrest is a crime of violence under Begay. The Pennsylvania statue specifies two ways in which a defendant may resist arrest: (1) by creating a substantial risk of bodily injury to an officer or another; or (2) by employing means justifying or requiring substantial force to overcome the resistance. The Court held that the first "fits squarely within the definition of a crime of violence in the residual clause." Under Begay, the Court had to analyze whether the second "typically involve[s] purposeful, violent, and aggressive conduct." The Court held that it does.

"Such conduct poses as great or greater a risk as burglary or extortion . . . . [R]esisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public . . . . [T]he offense engenders a significant risk of conflict and, correspondingly, a significant risk of injury." It is "by definition, purposeful, aggressive and violent," because the statute requires "the intent of preventing a public servant from effectuating a lawful arrest . . . . and knowingly engaging in conflict with another." [Note: This seems to invoke the "powder keg" theory rejected by the Supreme Court in Chambers. The Court purports to distinguish resisting arrest from its walk-away escape decision, Hopkins, in a footnote, however: "[Misdemeanor escape 'is conduct materially less violent and aggressive than the enumerated offenses." . . . Such is not the case with resisting arrest."]

Stinson had argued that because resisting arrest could include passive resistance, it should not be a categorical crime of violence, relying on Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. Ct. 2007), a case in which the defendant and her husband had interlocked arms and legs and refused to respond to commands of officers. The Court found that Thompson was "hardly passive," yelling and waving her hands in an attempt to scare an officer's horse, "causing the animal to rear up," and struggling with the officers "for a few minutes." The Court "found no decision . . . that affirmed a conviction for resisting arrest based on a defendant's inaction or simply 'lying down or 'going limp.'" [Note: This seems to ignore the reality that most resisting arrest prosecutions are resolved without a trial, so there are few reported cases.]

The Court then asserted that the "'ordinary' or 'typical' fact scenario underlying resisting arrest convictions in Pennsylvania" involves purposeful, violent and aggressive conduct.

This was a disappointing result, especially because the Court had granted panel rehearing of the first adverse decision. The Third Circuit Defenders participated as amicus, and David McColgin, EDPA, presented very strong oral argument on behalf of Mr. Stinson.

Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

2010-01-22T13:49:00.002-05:00

United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.

The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have taken the opposite view, that the unit of prosecution is the firearm possession (or use), and that the language of the statute and legislative history could be interpreted to support both sides. For these reasons, the Court looked to the rule of lenity in reaching its decision, finding "without hesitation that ‘[a]fter ‘seiz[ing] everything from which aid can be derived’ we are ‘left with an ambiguous statute,’" and adding, "[a]pplication of the rule of lenity is particularly appropriate in the context of § 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions."

Court Continues to Require Careful Tailoring of Internet Restrictions on Sex Offenders

2010-01-21T21:29:00.003-05:00

In United States v. Heckman, 08-3844, the Third Circuit extended its line of precedent (Crandon, Freeman, Voelker, Thielemann) requiring district courts to carefully tailor internet restrictions for sex offenders on supervised release. Heckman had a lengthy history of child molestation, but he had never been convicted of using the internet to entice or exploit a child -- the type of conduct the Court has previously said is essential to supporting Internet bans. Nonetheless, on the instant conviction for transporting child pornography, the district court imposed a lifetime, unconditional ban on Internet access. The Court rejected this condition, refusing to make the "inferential leap" that Heckman would eventually progress to using the Internet directly to harm a child. The Court also noted that there are alternative, less restrictive means of controlling an offender's Internet use, including computer monitoring conditions. The Court made clear, however, that it was not holding that limited Internet bans of shorter duration can never be imposed as conditions of supervised release in child pornography cases.

The Court rejected Heckman's challenge to a mental health condition that he had argued impermissibly delegated too much authority to Probation. It read the condition as requiring participation in mental health treatment, leaving only the details to be set by Probation, which is permissible under the Court's precedent in Pruden. The government had conceded that a condition governing contact with minors was impermissible because it gave full discretion over Heckman's contact with minors (including his own family members) to Probation.

Congratulations to Christy Unger, EDPA, for the win!

En Banc Court to Revisit Construction of Federal Conspiracy Statute

2010-01-14T11:34:00.004-05:00

On the government’s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "whether the two clauses in 18 U.S.C. § 371 – the ‘offense’ clause and the ‘defraud’ clause – constitute separate offenses under the Double Jeopardy Clause of the United States Constitution." (More fully, the statute begins: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States....")

The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule, while the dissent tallied a 2-1 split to opposite effect. (The disagreement owed to conflicting views regarding the scope of certain rulings.)

The case involves the high-profile prosecution of members of the Rigas family on charges of diverting funds from Adelphia Communications Corporation for personal use. Until its collapse in 2002, Adelphia was the country’s sixth largest cable operator.

Intentional 45 month delay in bringing defendant to trial violated defendant's Sixth Amendment speedy trial rights

2009-12-21T10:57:00.004-05:00

In a rare reversal of a district court's speedy trial decision, the Third Circuit in United States v. Battis, 08-2949 (3d Cir. December 14, 2009), concluded that the government's intentional 45 month delay in bringing the defendant to trial violated the defendant's Sixth Amendment right to a speedy trial. The Court reversed the district court's judgment denying defendant's speedy trial motion and remanded the case with instructions to dismiss the indictment and vacate the defendant's conviction.

The case arose out of a bar fight in Philadelphia. The defendant, Germaine Battis, was arrested by Philadelphia police for, among other things, illegally possessing a firearm. He was arraigned in state court on January 20, 2004. One month later, on February 24, 2004, Battis was indicted in federal court for possession of a firearm by a convicted felon. A federal bench warrant was issued as a detainer because Battis was in state custody, but the detainer was never formally filed. Battis was not arraigned in federal court until November 2, 2006. In the interim, state officials were waiting for the federal government to proceed with its case, while federal prosecutors intentionally delayed prosecution in order for the state court case to proceed against Battis. It was not until September 18, 2006, when the state court dismissed the state charges against Battis on speedy trial grounds, that federal prosecutors finally began to proceed with their case.

Battis filed a motion to dismiss the federal case on speedy trial ground, but the motion was denied by the district court. His case proceeded to trial and he was ultimately convicted of being a felon-in-possession. On June 23, 2008, he was sentenced to 120 months imprisonment. On appeal, the Third Circuit weighed the four Barker v. Wingo, 407 U.S. 514 (1972) constitutional speedy trial factors anew and determined that Battis's constitutional speedy trial rights had been violated. First, the Court calculated the length of the delay as 45 months, measured from the date of the federal indictment through the beginning of the trial. The Court affirmatively ruled that a defendant's arrest on related state charges does not trigger the speedy trial protection for a subsequent federal charge. The length of this delay was more than sufficient to trigger speedy trial protection. Second, the reason for the delay, weighed against the government. The Court found that the government’s justification, deference to the state’s interest in prosecution, failed in this case because while an "initial delay to allow the state to proceed may have been valid, there came a time when the federal Government should have taken some action to proceed in light of the state authorities' inaction."

The third factor, whether defendant asserted his speedy trial right, weighed in the defendant’s favor. The Court noted that Battis notified authorities on four occasions that he wanted his federal case to proceed, and addressed three requests for a speedy trial to the court. Notably, federal counsel made a request within weeks of being appointed. Finally, the Court held that "prejudice will be presumed when there is a forty-five-month delay in bringing a defendant to trial, even when it could be argued that only thirty-five months of that delay is attributable to the Government" and that in this case the government was not able to rebut this presumption. Battis's preparation for the state case during the delay did not alleviate any prejudice even though the charges in the state case were based on essentially the same facts as the federal charges, as this did not address the reason for presuming prejudice-that the delay undermines the basic reliability of the trial and the concerns of Battis's counsel in the two cases, and their resulting investigative efforts, would necessarily have been different. Moreover, the threat to the reliability of a trial is especially high where, as here, the delay results in the defendant's not being appointed counsel for three years after indictment.
　
The Court thus concluded that Battis was presumptively prejudiced by the delay, that all four factors of the Barker test weighed against the government, and that Battis was unconstitutionally deprived of his right to a speedy trial.

Congratulations to the Defender Association of Philadelphia's Federal Court Division on this tremendous win!

Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well

2009-12-04T14:30:00.003-05:00

The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served. The Court had previously so held in U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007). But in Manzella, rehabilitation was the only justification given, whereas the district court in Hoffa cited rehabiliation as well as incapacitation. The Court saw no distinction, holding that the plain meaning of 3582(a) prohibits the use of rehabiliation as "a factor" in imprisonment descisions.

The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.

PA Simple Assault = crime of violence under knowing/intentional part of statute

2009-11-22T21:58:00.002-05:00

In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v. Begay, 128 S. Ct. 1581 (2008). But the Court did rule that simple assault committed knowingly or intentionally does qualify as a crime of violence. It remanded for a resentencing hearing at which the district court is to determine whether Johnson’s prior conviction for simple assault was for the part of the statute charging knowing and intentional conduct, as opposed to reckless conduct.

Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). The Third Circuit in US v. Dorsey, 174 F.3d 331 (3d Cir. 1999), had ruled the simple assault does qualify as a crime of violence, even though the offense can be committed recklessly.

On appeal, the Circuit, in a lengthy footnote, explained that under Begay, only "purposeful, violent and aggressive" conduct can count as a crime of violence. This "suggest[s] that a crime committed recklessly is not a crime of violence," as nearly every other Circuit has already held. The government on appeal conceded the issue, explaining that the Department of Justice position now is that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence." Thus, the government conceded that Dorsey is no longer good law in light of Begay.

Normally such a concession would make the Court’s resolution of the issue easier. But here, for reasons that are not made clear in the opinion, the Court took the government’s concession as a reason not to resolve the issue. Instead, the Court ruled that knowing or intentional simple assault would qualify as a crime of violence, and it remanded to the district court to determine under the "categorical approach" whether Johnson’s conviction was under this part of the statute. If not, then in light of the DOJ’s concession, the prior conviction as reckless simple assault cannot count as a crime of violence. The Court made clear that this categorical determination is not a factual one but instead solely a question of what part of the statute Johnson actually pled guilty to: "[W]hat matters is the mens rea to which Johnson actually pleaded guilty," and not the facts in the Presentence Report suggesting the conduct was intentional.

Most likely, the Court’s reason for not expressly resolving the recklessness issue is because the same issue is currently pending in two other cases before the Court, and this panel wanted to leave the issue for resolution in one of those cases.

For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

2009-11-05T11:24:00.001-05:00

In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockburger v. United States, 284 U.S. 299 (1932), the Third Circuit joined the majority of circuits to rule that 18 U.S.C. § 371 proscribes one offense which may be committed two ways. (Judge Rendell in dissent, however, relied upon Blockburger to find that § 371 creates two separate offenses.) The court also reiterated that the Clause prohibits the government from splitting a single conspiracy into several prosecutions. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir.1987) and United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the court ultimately remanded the case to allow the lower court to determine whether the defendants entered into two separate agreements or only one.

The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.

Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty

2009-11-05T11:21:00.001-05:00

The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for “honest services” fraud under 18 U.S.C. §§ 1341, 1343 and 1346. The defendants ran the Ben Franklin Technology Center (hereinafter “BFTC”). The purpose of BFTC was to administer funds provided by the Commonwealth of Pennsylvania for other organizations in an effort to foster the development and commercialization of new technology. One of BFTC’s clients during the course of this fraudulent scheme was the U.S. Navy. The government indicted the defendants for defrauding BFTC of their honest services by misusing BFTC funds for personal expenditures and thwarting the efforts of subordinate employees to investigate their actions. The indictment also charged the defendants with depriving the U.S. Navy of the honest services of BFTC. In essence, the government sought to extend the honest services fraud theory to non-public officials. The court ultimately concluded that both public and private officials owe a fiduciary duty to the public. Specifically, the court determined that, as public officials owe a duty to protect the common good, private officials have a duty of protection as well, albeit a duty that is based primarily upon economic concerns. The court concluded that the defendants owed a fiduciary duty to BFTC by virtue of their status as corporate officers. The court ultimately ruled that this fiduciary duty could serve as the basis for the charge of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346, where the defendants were charged with executing a fraudulent scheme which breached this fiduciary duty and deprived BFTC of their honest services.

However, the court ruled that, while the indictment sufficiently alleged that the defendants committed honest services fraud against BFTC, the indictment did not sufficiently charge that the defendants committed honest services fraud against the U.S. Navy. Unlike BFTC, the defendants’ relationship with the Navy did not create a fiduciary duty. To the contrary, the relationship between the defendants and the Navy was merely contractual. The court ruled that the government must allege more than a breach of contractual obligations in order to charge a non-public official with honest services fraud.

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

2009-11-05T11:13:00.002-05:00

In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court’s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1.3. Prior to 2003, the Third Circuit had interpreted U.S.S.G. § 4A1.3 to permit a downward departure from a defendant’s career offender status if the court found that the career offender designation over-represented his criminal history. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit had ruled that, in the absence of a definition for the term "departing" as used in § 4A1.3, this section permitted a downward departure to both the criminal history category as well as the offense level. However, in 2003, the Sentencing Commission amended § 4A1.3 to provide a specific downward departure where the defendant’s criminal history category substantially over-represents the seriousness of his criminal history or his likelihood of recidivism. The 2003 amendments also provided a definition of the term "departure" as used in the amended version of § 4A1.3. Pursuant to the 2003 amendments, § 1B1.1 now provides a definition of the term "departure" that specifically addresses the downward departure provided in § 4A1.3. The definition provided in the current § 1B1.1 for the term "departure" as used in § 4A1.3 addresses only the assignment of the criminal history category. The court in Grier concluded that the 2003 amendments superseded Shoupe.

Also, the government had argued that Shoupe was no longer good law after United States v. Booker, 543 U.S. 220 (2005) and United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The court, however, concluded that Shoupe was not impacted by Booker and Gunter because a consideration of Shoupe departures falls squarely within Step Two of the three-step process mandated by Booker, namely, formally ruling on any departure motions.

Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

2009-10-21T14:00:00.006-04:00

In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same. The Court affirmed the convictions of the organization, Stop Huntingdon Animal Cruelty ("SHAC"), and six individuals charged: the President of SHAC, the Campaign Coordinator for SHAC, the web creator/manager for SHAC, the Seattle branch manager for SHAC, a SAC activist who coordinated protests, and a SHAC Huntingdon campaign organizer in NJ.

A complete recitation of the facts from the Court’s 60-page opinion is not possible here. In brief: Huntingdon Life Sciences is a research corporation that performs testing for companies bringing products to market. Its labs use animals as test subjects. After animal abuse inside a Huntingdon lab in England was documented in the late 1990s, animal rights organizations began targeting the company. One of those organizations was Stop Huntingdon Animal Cruelty - UK ("SHAC-UK").

In the wake of an a brutal assault on its Managing Director by a member of SHAC-UK, Huntingdon relocated its financial base to the United States, where laws better protected the confidentiality of its shareholders, whom SHAC-UK had begun to target in the England. When a Huntingdon branch opened in New Jersey, SHAC formed a branch there, as well.

SHAC targeted Huntingdon, companies that were involved with Huntingdon, and people who worked for both Huntingdon and the affiliated companies. Its primary tool was its website, through which members coordinated protests. It posted the names, home addresses and home phone numbers of employees on the website. The web-page also included pages describing: (1) upcoming "direct action" – protests such as the activities at issue in this case; (2) previous "accomplishments" – for example, acts of vandalism committed by protesters; (3) "top 10 terror tactics," like smashing windows and firebombing cars; (4) how to evade investigators through techniques like encryption; and (5) "electronic civil disobedience" – such as inundating websites with email to crash servers or using "black faxes" to exhaust toner. The government’s evidence showed the cyberattacks cost Huntingdon $400,000 in lost business, $50,000 in staffing costs for repairs, and $15,000 in computer replacement costs.

Constitutionality of the AEPA: Void for Vagueness: The AEPA prohibits travel in interstate commerce or use of the mail or other facility in or interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise that intentionally damages or causes the loss of property used by the animal enterprise (or conspiracy to do so). Defendants argued that the terms "economic damage" and "physical disruption" were not clearly defined," and included activities protected by the first amendment. The Court rejected these arguments because (1) "physical disruption has a well-understood common definition; (2) legal protest, such as letter-writing, which might cause an ancillary physical disruption is exempted from the statute; (3) defendants’ behavior – including encryption, evasion techniques, and even concessions on the website that some activities were illegal – suggests they knew their activities were illegal; and (4) the "intent" requirement means that the government must establish that the actor meant to disrupt the functioning of the enterprise, which alleviates vagueness concerns (citing Gonzales v. Carhart, 550 U.S. 124, 149 (2007)).

As-Applied Constitutional Challenge to AEPA: All parties agreed that, to the extent they advocated humane treatment of animals, the postings on the website fit within the rubric of the First Amendment. The question was whether they were directed to inciting or producing imminent lawless acting and likely to produce such action. Put differently, did they constitute a "true threat." Much of the speech did not. But the Court found the postings encouraging electronic civil disobedience and the dissemination of the personal information of Huntingdon employees was "more problematic."

Regarding the electronic civil disobedience, the Court held that the postings "encouraged and compelled an imminent unlawful act that was not only likely to occur, but provided the schedule by which the unlawful act was to occur. This type of communication is not protected speech." It found "ample evidence" to demonstrate that the individual defendants coordinated and controlled and participated in such activities.

Regarding dissemination of names and protests against target employees, the Court held that the defendants used past incidents to instil fear in future targets. For example, using photos of assault victims at protests. Viewed in context, the implied threats against target employees were not conditional and rightly instilled fear in the listeners, converting them to "true threats." The Court gave examples of particular instances in this category involving each defendant.

Definition of "Animal Enterprises": Defendants argued that the protest activity against companies associated with Huntingdon was not directed at "animal enterprises." The Court disagreed, finding that the "ultimate object" of the conspiracy was Huntingdon.

Actual v. Intended Loss: Defendants argued that the district court erred in instructing the jury that it could convict them for intended loss. The Court did not decide this issue, instead finding that any error would have been harmless because the government proved an actual loss in excess of the statutory threshold.

Sufficiency of Evidence/Conspiracy: Defendants challenged the sufficiency of the evidence to prove that they acted for the purpose of causing physical disruption to Huntingdon and to intentionally damage or cause the loss of Huntingdon’s property. The Court conceded that there was no direct evidence to prove a conspiracy between the defendants, but found "ample circumstantial evidence from which the jury could have inferred their agreement," to accomplish these unlawful goals. Judge Fisher dissented on this point, noting "I fail to see any evidence of an agreement to cause physical disruption to Huntingdon – as opposed to other non-animal enterprise companies affiliated with Huntingdon – or to cause damage or loss to property used by Huntingdon.

Stalking: The defendants also challenged their stalking convictions. One argued that he only intended to harass and embarrass the victims and make their lives miserable. He contrasted this type of infliction of emotional distress with the statute’s requirement that he intend to put his victims "in reasonable fear of death or bodily injury." The Court found that the invocation of the the website’s references to extreme acts of violence, coupled with protesters' use of ultimatums, went beyond harassment and embarrassment. Another defendant argued that the victims’ fears were unreasonable. The Court dismissed this argument for the same reason, adding that this particular defendant had personally threatened to burn one victim’s house down. The web administrator argued that the evidence was insufficient to convict him of any stalking-related counts. The Court found that the jury could reasonably have concluded that he aided and abetted the stalking because the website was a primary tool in it.

The Court also summarily rejected a variety of other challenges in this complicated and hard-fought case.

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

2009-10-13T15:46:00.002-04:00

Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.

(1) Federalism Challenge

Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requisite federal interest element, nor states any basis for its enactment beyond the Chemical Weapons Convention. On appeal, Bond asserted that 18 U.S.C. § 229 violated constitutional principles of federalism because it was not based on a valid exercise of congressional authority, it did not require proof of a federal interest, it was vague and overbroad, and it failed to provide fair notice of the conduct covered by its terms.

The Third Circuit, in United States v. Bond, No. 08-2677, declined to reach the merits of Bond's federalism challenge to Section 229 because it concluded that private parties lack standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties. The Court also rejected Bond's vagueness claim, finding that, while the terms of Section 229 were certainly broad, a person of reasonable intelligence would know that Bond's conduct violated the statute and that the statute cast a wide net for obvious safety reasons and did not criminalize protected activities outside the permissible bounds of Congressional regulation.

(2) Appropriateness of "Special Skill" Sentence Enhancement

Bond also challenged a two-level sentence enhancement for use of a special skill. The Third Circuit affirmed the district court's application of the enhancement, finding that Bond's advanced degree in microbiology, her training in the development and application of biocides, and her position at a chemical manufacturing company, where she could research and steal chemicals unavailable to the public, all supported the enhancement. Bond's background and training facilitated her handling and deployment of the chemicals in a fashion thought to be most lethal and influenced her decision to use toxic chemicals as her weapon of revenge. Accordingly, the Third Circuit affirmed application of the special skill enhancement.

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

2009-10-13T15:21:00.003-04:00

Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count. On appeal, the Government conceded that Cesare improperly received concurrent sentences in violation of double jeopardy because bank robbery is a lesser included offense of armed bank robbery, but argued that the two separate $100 special assessments be left intact because special assessments are not punishment.

The Third Circuit, in United States v. Cesare, No. 08-2749, disagreed with the Government's position regarding the special assessments, holding that the entry of separate convictions, including separate special assessments, threatened the defendant with "potential adverse collateral consequences." As such, the two separate special assessments constituted impermissible double punishments offending double jeopardy. Accordingly, the Third Circuit remanded this matter to the district court with instructions to vacate the defendant's armed robbery conviction.

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

2009-10-05T10:17:00.005-04:00

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – properly calculated defendant’s offense level as 23 and criminal history category as I, yielding a Guidelines sentencing range of 46 to 57 months' imprisonment. Then, in Gunter step two, the District Court granted the Government’s 5K1.1 one-level downward departure motion: that reduction yielded a Guidelines range of 41 to 51 months' imprisonment. The District Court imposed a sentence of 48 months: at the upper end of the custody range that included the one-level departure, but also within the original, pre-departure custody range. Defendant did not object to the sentence.

On appeal, defendant argued that he was entitled to re-sentencing because the District Court committed plain error by imposing a sentence that was two months higher than the bottom of the original pre-departure Guidelines range, without any indication that it was applying an upward variance under 18 U.S.C. § 3553(a). Defendant argued that the District Court erroneously failed to give effect to the one-level departure that it granted when it imposed a sentence above the bottom of the pre-departure Guideline range.

The Third Circuit agreed. First, at Gunter step two, the District Court was required to calculate a sentence below the bottom of the otherwise applicable Guidelines range by U.S.S.G. § 1B1.1, cmt. n.1.E (defining downward departure as a "departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence."). Quoting its earlier decision in United States v. Floyd, 499 F.3d 308, 312-13, the Court ruled that when a district court grants a downward departure, the sentence it imposes "must be less than the bottom of the otherwise applicable Guidelines range." Here, where the post-departure 41 to 51 months Guidelines range overlapped with the original pre-departure 46 to 57 months Guidelines range, the District Court’s Gunter-step two calculation required a sentence less than 46 months. The District Court could have imposed a 48-month sentence only if the District Court explicitly supported an upward variance in reliance on the § 3553(a) sentencing factors– but the District Court did not do so here.

The Court further held that this sentence was plain error, because the Guidelines definition of "downward departure" was unequivocal, and clearly explicated in Floyd. The Court further held that this error was prejudicial because it was unclear whether the District court intended to vary the sentence upwards, or whether it failed to realize that it did not give defendant the benefit of the departure that it had granted. Significantly, the Court emphasized that "very few procedural errors by a District Court will fail to be prejudicial, even when the Court might reasonably have imposed the same sentence under the correct procedure. . . . [and] an error of procedure is seldom harmless."

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

2009-09-29T14:32:00.002-04:00

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that in a civil enforcement proceeding, a "non-owner operator" is liable under the act "if he or she has ‘significant or substantial or real control and supervision of a project’" and that there is no difference in the criminal context. That based on the record, there was substantial evidence that Starnes "exercised significant control and supervision" over the project and that was sufficient to survive the motion for judgement of acquittal.

Second, Starnes and George both argued that the District Court erred in denying their motions for judgement of acquittal on the false-statement counts. Specifically that the Government’s evidence was insufficient as to "falsity" or "federal-government jurisdiction" - both necessary elements of a false statements violation. The Third Circuit quickly dismissed the arguments as to "falsity" indicating that both defendants arguments rested on the faulty premise that the defendants were charged and convicted of falsely representing the amounts of asbestos in the air samples taken from the site. To the contrary, the Government’s evidence was that the samples weren’t analyzed at all - a fact that went uncontested. As a result, the evidence was sufficient as to "falsity."

As to "federal-government jurisdiction" both defendants argued that the federal government lacked jurisdiction because the reports were sent to the Virgin Islands Housing Authority (VIHA), which wasn’t a federal agency. The Third Circuit quickly dismissed this claim as well stating that it’s enough that the statement pertains to a "matter in which the executive branch has ‘the power to exercise authority.’" In other words, the fact that the VIHA was funded by HUD was enough to satisfy "federal government jurisdiction."

George alone argued that the district court erred in denying his motion for judgment of acquittal on the false statement count because, as he put it, the Government failed to demonstrate that he had the "specific intent" to violate the false statements statute. The Third Circuit rejected this argument as well. In doing so, the Court noted that the statute identified the mens rea as "knowingly and willfully" rather than "specific intent." The Court was not willing to decide whether "specific intent" was "shorthand" for "knowingly and willfully." Rather, the Court chose to focus on the generally accepted definitions of "knowingly" and "willfully" and applied them to the statute at hand. The Court concluded that "knowingly" requires the Government to prove the defendant had "knowledge of the facts that constitute the offense." With analysis, the Court of Appeals eventually concluded that "willfully," as it is applied to the false statements context (§ 1001), requires the Government to prove the defendant had "knowledge of the general unlawfulness of the conduct at issue." Based on these standards, the evidence presented was sufficient to survive the motion for judgment of acquittal.

Third, both defendants challenged the district court’s decision to admit the testimony of a witness, David Dugan. The decision to admit or exclude evidence was reviewed for abuse of discretion. Dugan testified regarding asbestos samples he collected which had high levels of friable asbestos. The district court ruled his testimony was relevant to demonstrate dangerous levels of friable asbestos that were likewise present in buildings worked on by the defendants. The defendants, in turn, argued that the district court’s decision to admit this testimony was an abuse of discretion because the witness collected samples from a building they didn’t work on and his collection occurred at a much later date than the events that led to their prosecution. Again, the Court of Appeals disagreed with the defendants because the Government demonstrated that all of the buildings in the complex (including the ones worked on by the defendants and the one in which Dugan collected samples) were made of the same materials and had no structural changes - therefore a reasonable inference could be made that the buildings worked on had dangerous levels of asbestos. Consequently, the testimony was deemed admissible under FRE 401 and 402. Additionally, the Court of Appeals summarily rejected the argument that the testimony of Dugan was inadmissible under FRE 403 because there was no demonstration of "unfair prejudice."

Finally, both defendant’s appealed the district court’s determination of their sentences. The review of the district court’s sentencing decisions was for reasonableness under a deferential abuse of discretion standard. And as the Court of Appeals put it, these arguments were "readily dispatched." (FISHER, JORDAN, and STAPLETON, opinion by FISHER).