3d Cir rejects Speedy Trial challenge

The Third Circuit recently addressed a number of issues in United States v. Willaman, No. 05-1336 (3d Cir. Feb. 17, 2006). Willaman appealed his 18 U.S.C. § 922 conviction based on, among other things, the Second Amendment and the Speedy Trial Act. The Third Circuit quickly disposed of the Second Amendment argument, relying on United States v. Rybar, 103 F.3d 273 (3d Cir. 1996).

Next, the Court addressed Willaman’s speedy trial challenge. The Court noted that the Speedy Trial Act requires that a defendant pleading not guilty be tried within 70 days of either the filing date of the indictment or "the date the defendant has appeared before a judicial officer . . ., whichever date last occurs." Willaman was indicted on May 11, 2004. He then appeared before a magistrate for a detention hearing on May 12, 2004 and pleaded not guilty at his arraignment on May 17, 2004. Based upon dictum in United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981), the Court decided that Willaman’s speedy trial clock began to run on the date of his arraignment, May 17, 2004, despite his appearance before a magistrate on May 12, 2004.

Thus, if the defendant is arrested before indictment, his pre-indictment physical appearance is sufficient to qualify as an appearance "before a judicial officer," thereby making the relevant speedy trial date the date of the indictment. However, if the defendant is indicted before he is arrested, his appearance in court is insufficient to start the clock for speedy trial purposes, unless and until he pleads not guilty to the offense.

The Court was satisfied that a distinction was justified because the Speedy Trial Act only applies to defendants that have pleaded not guilty. Therefore, a first appearance post-indictment does not qualify because the defendant has not pleaded not guilty yet. On the other hand, at a pre-indictment appearance, the defendant could not plead not guilty because he has yet to be charged. Thus, in that case, the indictment will trigger the Speedy Trial clock.

Due to the above rule, Willaman lost his speedy trial challenge because his trial, excluding the days needed to dispose of his pretrial motions, commenced 68 days after his arraignment.

Willaman also challenged both his statements to police and physical evidence under the Fourth and Fifth Amendments. The Court held that Willaman was informed twice that he was free to leave and was therefore not subject to custodial interrogation. The Court held that Willaman was not in custody during the interrogation or during his turning over physical evidence despite the interrogating officer’s conduct, including his comment that they "could do it the hard way or the easy way," and his showing Willaman a newspaper photo depicting a police raid.

Finally, the Court also rejected Willaman’s challenge of the indictment’s sufficiency. The Court held that a grand jury foreman’s failure to sign the indictment, though required by FRCP 6(c), is merely a technical deficiency, and thus does not warrant a dismissal.

3rd Cir., en banc, holds Booker inapplicable to forfeiture/restitution

The Third Circuit, in a very fractured en banc decision in United States v. Leahy, (3d Cir. Feb. 15, 2005), has ruled that Booker does not apply to either forfeiture or restitution. The 6-5 decision addresses both issues thoroughly and creates a number of splits among the judges, resulting in six different opinions. The issues are addressed as follows:

The Court, per Circuit Judge Fuentes, initially held that the Supreme Court’s pre-Apprendi decision in Libretti v. United States, 516 U.S. 29 (1995), still binds the circuit courts despite any erosion to the decision that has occurred since the 1995 Libretti decision. In Libretti, the defendant argued that his plea colloquy was inadequate because the district court failed to inform him of his right to a special jury verdict regarding forfeiture under former FRCP 31(e). The Supreme Court held otherwise, indicating "that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed." Id. at 49. In Leahy, the 3rd Cir. expressly noted the tension between Libretti and Booker, but decided that Libretti was still binding until the Supreme Court stated otherwise. The 3rd Cir. also ruled that Libretti similarly controlled any argument that forfeiture determinations must be made beyond a reasonable doubt.

Next, the Court turned to restitution, first addressing whether a restitution order was criminal or civil in nature. Pursuant to Pasquantino v. United States, 125 S. Ct. 1766 (2005), and United States v. Syme, 276 F.3d 131 (3d Cir. 2002), and a number of other Third Circuit and sister circuit decisions, the Court easily determined that an award of restitution under the Victim and Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA) is criminal in nature.

In assessing restitution under the Booker, the Court immediately determined that there was no Sixth Amendment distinction between the language in the VWPA or the MVRA; thus, the Court considered the two statutes together. Noting that Apprendi and its progeny explain that the Sixth Amendment requires facts that raise a defendant’s statutory maximum penalty be proven to a jury beyond a reasonable doubt or admitted, the Court then considered "whether a judge’s calculation of the sum a defendant must restore to his or her victim constitutes an increase in punishment exceeding that authorized by plea or jury verdict, in violation of the Sixth Amendment."

In answering this question, the 3rd Cir. stated that the restitution amount authorized by the governing statutes after a guilty plea or jury verdict is the "full amount of each victim’s losses." 18 U.S.C. § 3664(f)(1)(A). The defendants in Leahy pointed out that, in order for any restitution to be authorized, there must first be factual findings as to the amount of loss resulting from the defendants’ crimes. The 3rd Cir. disagreed, stating that "when the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction."

The 3rd Cir. decided that the restitution penalties here, though criminal, are different from enhanced terms of imprisonment as analyzed under the Sixth Amendment in Jones, Apprendi, Blakely, and Booker. The 3rd Cir. stated that the sentencing court can decide how much property and proceeds must be returned to victims as a result of the offense of conviction. The Court further reasoned that, although restitution penalties are criminal, they do not enhance the severity of a defendant’s punishment, as authorized by the defendant’s convictions, because restitution constitutes a return to the status quo, not an increase in sentence.

Eight different Circuit Judges combined to write six concurring and/or dissenting opinions in Leahy. Of note, Circuit Judge McKee penned a decision concurring in the judgment regarding forfeiture, but dissenting in relation to the Court’s holding on restitution. Judge McKee agreed that the 1995 Libretti decision controlled the forfeiture question, but acknowledged that the Supreme Court’s decisions since 1995, namely, Blakely and Booker, were difficult to reconcile with Libretti. McKee did not, however, agree that a sentencing court could determine the amount of restitution under either the VWPA or the MVRA consistent with the Sixth Amendment.

Judge McKee first notes the bright line rule of Apprendi and Blakely and points out that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Judge McKee further highlights that the majority, after conceding that restitution is a criminal sanction, inexplicably characterizes restitution as "not the type of criminal punishment that evokes Sixth Amendment protection" because it has "little in common with . . . prison sentences." Judge McKee asserts that this finding "sidesteps the analysis required by Blakely."

He further takes the majority to task for not answering the Blakely question at hand: "whether the verdict ‘alone’ allows the judge to impose restitution with no additional finding of fact." Judge McKee continues, "Obviously, it doesn’t." Judge McKee states that restitution is not authorized until additional findings are made regarding the amount of loss. Judge McKee finds no distinction between these findings and those that the Supreme Court found to be in violation of the Sixth Amendment in Blakely and Booker.

Judge McKee's opinion provides a much more thoughtful and thorough analysis of restitution under Sixth Amendment case law than does the majority's opinion. In addressing the majority's characterization of restitution, Judge McKee artfully describes the majority's analysis as a "pirouette," in reference to the Court's initial concession that restitution is criminal in nature, but later refusal to recognize that this determination subjects it to the Sixth Amendment, apparently due to the majority's own detection of certain civil aspects of restitution.

Third Circuit rules on Booker reasonableness review, jurisdiction, etc.

In United States v. Cooper, (3d Cir. Feb. 14, 2006), the Third Circuit has touched on a number of sentencing issues affecting the federal courts since the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), more than a year ago. First, the Court rejected, 2-1, the government’s assertion that the circuit court did not have jurisdiction to review post-Booker sentences imposed within the guidelines for unreasonableness. The Court affirmatively rules that it does, in fact, have jurisdiction under 18 U.S.C. § 3742(a)(1) to review for reasonableness. The Court states that an unreasonable sentence is one imposed "in violation of law," under § 3742(a)(1). The Court did not address whether a district court's imposition of a sentence "greater than necessary" under § 3553(a)'s parsimony provision is likewise imposed "in violation of law" under § 3742(a)(1). The Court also indicates that it may have such jurisdiction under 28 U.S.C. § 1291. Judge Aldisert, in dissent, asserts that the Court does not have jurisdiction to review within guideline sentences for reasonableness.

Second, the Court expressly declined to follow the lead of a number of its sister circuit courts that had ruled that a sentence imposed within the federal sentencing guidelines is presumptively reasonable. Rather, the Third Circuit notes that a within guidelines sentence only indicates that the district court considered one of the relevant § 3553(a) factors, rather than all of them. Thus, the circuit court, as directed by the Supreme Court, will continue to review sentences for reasonableness, whether it lies within or outside the applicable guidelines range. In reviewing for reasonableness, the Court demands that the record demonstrate that the district court gave meaningful consideration to the § 3553(a) factors, not just the guidelines. A "rote statement of the § 3553(a) factors should not suffice." The Court declares that it must be able to ascertain that, where properly raised, the district court not only considered the applicable § 3553(a) factors, but that it also "reasonably applied" those factors.

Note that while the Court indicates that sentencing facts under the guidelines need be proved by a preponderance of the evidence, the Court expressly withheld ruling on the standard of proof to be applied where a sentencing enhancement involves a separate crime.

Third Circuit Reverses District Court’s Order Granting § 2254 Petition for Habeas Corpus

In Satterfield v. Johnson, No. 04-3108 (3d Cir. Jan. 17, 2006), the Third Circuit held that a petition for post-conviction relief that was improperly filed under state law may not be considered "properly filed" for purposes of AEDPA’s tolling statute, § 2244(d)(2). Appeal was taken from the district court’s order granting state inmate’s habeas application under § 2254 based on counsel’s ineffective assistance. The Third Circuit deemed petitioner’s King’s Bench Petition to be improperly filed in the state court proceedings because, inter alia, he filed it with the Pennsylvania Supreme Court instead of the court in which he was convicted, contrary to Pennsylvania’s Post Conviction Relief Act ("PCRA"). Such an improperly filed petition did not toll AEDPA’s one-year statute of limitations, and thus his federal habeas petition was deemed time-barred unless equitable principles warranted tolling of the statute of limitations. In this case, where there were no allegations that the Commonwealth had misled petitioner regarding his claim, the Third Circuit determined that petitioner failed to demonstrate diligence or extraordinary circumstances justifying equitable tolling of AEDPA’s statute of limitations. Thus, the Third Circuit reversed the order granting the habeas petition and remanded for dismissal.

Third Circuit Affirms Mail Fraud Conspiracy Conviction in TOEFL Case

In United States v. Al-Ame, No. 04-3769 (3d Cir. Jan. 17, 2006), the Third Circuit affirmed defendant’s conviction of conspiracy to commit mail fraud, holding that defendant’s act of causing the Educational Testing Service ("ETS") to mail Test of English as a Foreign Language ("TOEFL") scores to his address was in furtherance of the conspiracy, and therefore his conduct constituted mail fraud under 18 U.S.C. § 1341. Defendant Al-Ame had paid an imposter to take the TOEFL on his behalf, who instructed ETS to mail the test results to Al-Ame’s home address. Upon receipt of the test results, Al-Ame intended to replace the photograph of the imposter with his own, and mail these results to his college.

On appeal, although Al-Ame argued that his scheme to defraud was complete at the time that the imposter took the test for him and thus the mailing of the TOEFL score to him was not in furtherance of the fraud, the Third Circuit explained that this mailing of the TOEFL score was a "critical step" in furtherance of the fraud, as were his receipt of the TOEFL score in the mail, and the mailing of the doctored score sheet containing the imposter’s score to his college. The Third Circuit also rejected Al-Ame’s second argument that ETS’s mailing of the score was routine and thus would have occurred without his fraudulent act. The Supreme Court has already rejected the notion that routine or innocent mailings are per se excluded from the scope of 18 U.S.C. § 1341. Moreover, although it is true that the mailing would have been sent regardless as required by law, he fraudulently induced ETS to mail him the TOEFL score, as there would have been no scores to mail at all had Al-Ame not hired an imposter to take the test for him. In affirming the conviction, the Court held that the conduct was mail fraud as defined in 18 U.S.C. § 1341, and therefore, the District Court had sufficient basis in finding him guilty of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.

Blakely-ized Indictment and Sentencing Interrogatories Given Thumbs Up By Circuit

In United States v. Hedgepeth, No. 04-4564 (3d Cir. January 12, 2006), the Third Circuit bestowed its approval upon a Blakely-ized indictment and special sentencing interrogatories. Subsequent to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but prior to United States v. Booker, 125 S.Ct. 738 (2005), the Government filed a third superseding indictment in Hedgepeth's case adding a Notice of Special Findings containing three sentencing factors. The district court denied Hedgepeth's motion to strike the sentencing factors as surplusage and permitted a special verdict form to be submitted to the jury that included the three sentencing factors.

On appeal, the Third Circuit first clarified the standard for striking surplusage, holding that a court may strike surplusage from an indictment or information upon a defendant's timely motion only when the surplusage is both irrelevant (or immaterial) and prejudicial. Here, because the indictment was never revealed to the jury, there could be no prejudice. Accordingly, the Court affirmed the district court's decision denying Hedgepeth's motion to strike.

With regard to the special sentencing interrogatories, the Court held that special interrogatories are appropriate in the sentencing context when they are considered by the jury after a guilty verdict has been rendered. Here, the special verdict form was structured so that the jury was first instructed to determine Hedgepeth's guilt and only then move on to consideration of the related sentencing factors. The Court concluded that the structure of the special verdict form was sufficient to alleviate any danger of prejudice and affirmed the submission of the form to the jury.

Felon in Possession Not a Crime of Violence under Bail Reform Act

In United States v. Bowers, No. 05-4908 (3d Cir. Dec. 27, 2005), the Third Circuit has announced that felon in possession of a firearm, 18 U.S.C. § 922(g), is not a crime of violence for purposes of bail. The Bail Reform Act, 18 U.S.C. § 3142, requires a court to hold a detention hearing upon motion by the government if the defendant is charged with a crime of violence. The statute also lists factors to be considered in deciding whether to release a defendant, including whether the charged offense is a crime of violence.

The magistrate judge held a detention hearing and ordered Mr. Bowers detained. In affirming the magistrate’s order, the district court found that a detention hearing was justified solely because it deemed felon in possession a crime of violence. It also relied primarily upon this classification in upholding the magistrate’s decision to detain Mr. Bowers.

The Third Circuit disagreed with the district court’s rulings. In determining that the possession offense was clearly nonviolent, the Court agreed with the majority of its sister circuits that had addressed the issue, comprised of the D.C., Seventh, and Eleventh Circuits. See United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir. 2001); United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999). Only one Court had disagreed. See United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). Likewise, the Third Circuit noted that its decision was consistent with its earlier decision in Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998), where the Court held that a categorical approach is appropriate for determining whether particular offenses are crimes of violence and ruled that § 922(g) is not a crime of violence under a statute with similar wording to § 3142.

The Court then listed the most persuasive reasons for classifying felon in possession as a nonviolent offense. First, the Court noted that the plain language of the statute applies to crimes that "involve[] a substantial risk" of violence. The Court then noted that the conclusion that the § 922(g) possession offense was a crime of violence was laden with "factual assumptions." Second, the Court recognized that a person’s mere status as a felon does not establish that his possession of a firearm will ultimately turn violent. Third, the Court noted that, even if a felon does use his weapon violently, that does not render his possession offense violent. Fourth, even if felon in possession is classified as nonviolent, the government may still move to detain defendants charged with the offense for other reasons. Finally, the Court took note that the Sentencing Commission had similarly deemed crimes of violence to exclude § 922(g) offenses.

Ultimately, the Third Circuit, per Judge Becker, reasonably concluded that it was "unwilling to infer that a felon will use a gun violently merely because he owns it." The Court then vacated the district court’s order and remanded for the district court to determine whether Mr. Bowers’ detention was otherwise necessary.

Evidentiary hearing ordered in 2255 proceedings alleging ineffective plea advice

Rounding out 2005, the Third Circuit has ruled that a district court abused its discretion by dismissing, without an evidentiary hearing, a Section 2255 motion alleging that trial counsel failed to inform the defendant of the possibility of entering an "open" guilty plea once plea negotiations with the government collapsed due to the defendant's refusal to cooperate against potential co-defendants. The court of appeals reiterated its "reasonably low threshold" for entitlement to an evidentiary hearing: a hearing must be held whenever the files and records of the case are inconclusive as to whether the movant is entitled to relief, accepting the movant's factual allegations as true unless clearly frivolous.

Here, the movant alleged that trial counsel knew both that the evidence of guilt was overwhelming and that movant did not want to cooperate with the government, yet never advised him of the possibility of pleading open. Applying the Strickland standard, the court of appeals found sufficient allegations of deficiency of performance and prejudice to require an evidentiary hearing. As to performance, the movant made the specific allegations discussed above and the government's response, which relied on a declaration of trial counsel, did not rebut those allegations (presumably, a hearing would still be required to assess credibility even if the declaration had non-conclusively rebutted movant's allegations). As to prejudice, an open plea to the indictment "would have likely" resulted in a three-level reduction in movant's offense level for acceptance of responsibility (the absence of which exposed movant to an additional 19-30 months' imprisonment under the Guidelines), assuming as true movant's allegation that he would have truthfully admitted the underlying conduct.

The case is United States v. Booth, No. 03-3893 (3d Cir. Dec. 29, 2005).

Third Circuit Finds Government Made Prima Facie Case That Crime-Fraud Exception To Attorney-Client Privilege Applied, Reverses Order Quashing Subpoena

In United States v. John Doe, 429 F.3d 450 (3d Cir. 2005), the Third Circuit reversed the district court’s order granting an attorney’s motion to quash a subpoena. The Circuit found that the government had satisfied its burden of establishing a prima facie case that the crime-fraud exception to the attorney-client privilege applied

In the course of a grand jury investigation into the activities of a federal law enforcement officer ("Target"), the government sought the testimony of an attorney ("Attorney"). The government claimed to have evidence that Target’s purpose in consulting Attorney was to determine how to conceal future criminal conduct. Attorney moved to quash the subpoena, invoking attorney-client privilege. The government argued (1) that the crime-fraud exception applied because Target’s conversations with Attorney were in furtherance of the planned criminal activity, and (2) that the involvement and presence of a third party ("Witness") at certain conversations destroyed the privilege. The district court disagreed with both contentions and granted the motion to quash.

The government appealed. Because the government did not challenge the district court’s finding that Target and Witness shared a common interest, the Third Circuit did not reach the issue of whether Witness’s presence vitiated the privilege. The Circuit also dismissed as without merit the argument that the district court improperly focused on whether the evidence was cumulative and necessary.

The Third Circuit then turned to the government’s principal argument that the district court improperly interpreted the crime-fraud exception to the attorney-client privilege. The Third Circuit noted the absence of formal findings of fact regarding Target’s intent in consulting Attorney, but found the record sufficient to support a finding that the government had met its burden of establishing a prima facie case, meaning that "the evidence, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met" (quoting In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d Cir. 2000) (internal citation omitted). The elements are that "‘the client was committing or intending to commit a fraud or crime’" and that the consultation was ‘in furtherance of that alleged crime or fraud’" (quoting In re Grand Jury Subpoena, 223 F.3d at 217).

The district court also failed to make findings of fact regarding the intent of either Target or Witness, and it applied the wrong standard for the crime-fraud exception. Reviewing the entire oral opinion, the Third Circuit stated, leads to the conclusion that the district court improperly relied on whether the consultation assisted or furthered the crime, rather than focusing on the intent of Target and Witness in consulting with Attorney. And the record, the Third Circuit said, "is reasonably clear as to the criminal intent of Target." The Circuit thus reversed the order of the district court and remanded the matter to the district court with instructions to deny the motion to quash the subpoena.

Third Circuit Offers Split Decision on Miranda Challenge Involving a Confidential Informant

In United States v. Jacobs, No. 04-2214 (3d Cir. Dec. 14, 2005), the Third Circuit considered whether statements made on two separate occasions by a confidential informant to her FBI handler were involuntary and taken in violation of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). The first set of statements, made in March 2000, were offered by Jacobs on her own terms - she called her handler, requested a meeting, set the time and place of the meeting, and controlled the amount and type of information offered. The second set of statements, made in April 2000, were made in response to an interrogation by Jacobs's handler at the FBI office after Jacobs had been summoned to the office without explanation and without being told that her status as an informant had been "closed."

The district court suppressed both the March and April statements on voluntariness grounds after concluding that Jacobs's handler made an implied promise that her statements would not be used against her. The Third Circuit refused to determine whether there was an implied promise and, instead, simply considered Jacobs's relationship with her handler as one factor in the totality of the circumstances analysis of voluntariness. Applying the totality test, the Third Circuit agreed that the April statements - made in a custodial setting in response to interrogation without adequate warnings - were involuntary. It reversed the district court's decision on the March statements, however, finding that the circumstances of the March statements point to Jacobs's willingness to speak by her own choice.

Judge Aldisert filed a dissenting opinion arguing that the district court decision should have been affirmed in its entirety because the district court did not clearly err in concluding that Jacobs's handler made an implied promise that her statements would not be used against her.

BOP Regulations Categorically Limiting Amount of Time Inmate May be Placed in CCC Declared Invalid

The Third Circuit has ruled that newly enacted Bureau of Prisons (BOP) regulations categorically limiting the amount of time an inmate may be placed in a Community Corrections Center, to the lesser of ten percent of the prisoner's total sentence or six months, are invalid because they conflict with Congress' explicit directive in 18 U.S.C. § 3621(b) to make individualized assessments regarding placement and transfer determinations. In Woodall v. Federal Bureau of Prisons, No. 05-3657 (3d Cir. Dec. 15, 2005), Woodall, a federal inmate, challenged the BOP's failure to follow a District Court recommendation that he be placed in a CCC for the last six months of his 30 month sentence. Citing 28 C.F.R. §§ 570.20, 570.21 (enacted 2/15/05), the BOP explained that Woodall was only eligible to serve 11 weeks (10%) of his total sentence in a CCC.

After concluding that Woodall's petition was properly filed under 28 U.S.C. § 2241 (challenging the "execution" of his sentence), the Third Circuit concluded that the BOP's regulations, containing a categorical limitation on placement, conflicted with Congress' statutory directive, under 18 U.S.C. § 3621(b), requiring the BOP to consider individualized factors in making placement and transfer determinations. Accordingly, the Third Circuit granted Woodall's habeas petition and ordered the BOP to reconsider whether to transfer Woodall to a CCC after analyzing the § 3621 factors.

Cert petition filed in Sczubelek case

Earlier this year, the Third Circuit upheld the constitutionality of the DNA Backlog Elimination Act. The aforementioned DNA Act allows for the forceful extraction of blood samples from those on supervised release. These samples then undergo DNA analysis and are forever placed in a national data bank for the purpose of aiding law enforcement in solving crimes. Sczubelek, represented in the Third Circuit by Eleni Kousoulis of the Federal Public Defender's Office in Delaware, challenged the constitutionality of the DNA Act on appeal, arguing that these suspicionless searches, absent any legitimate penological or "special needs" justification, violate Sczubelek's rights under the Fourth Amendment.

The Third Circuit denied the challenge, via a 2-1 decision, and later denied rehearing the case en banc. On December 2, 2005, Sczubelek filed a cert petition with the United States Supreme Court seeking review of the Third Circuit's decision. Feel free to contact the Delaware office with any questions regarding the Sczubelek case and preserving a challenge to the DNA Act.

Appeal waiver in guilty plea upheld on appeal of unsuccessful motion to withdraw plea

The Third Circuit, in US v. Wilson, upheld an appeal waiver in a guilty plea agreement, where the defendant had filed an unsuccessful motion to withdraw the plea in the district court.
Wilson was indicted for numerous drug offenses. He later pled guilty to two drug charges. His plea agreement included an appeal waiver that waived the opportunity for appeals or habeas relief regarding his sentence, including claims arising under Blakely. Three weeks after his plea, Wilson filed a motion to withdraw the appeal, but the district court denied his motion and ultimately sentenced him to two consecutive sentences of 34 months.

Wilson appeals, raising three claims. First, he claims that his rights under the Interstate Agreement on Detainers ("IAD") were violated because he was shuttled between MD and PA before the charges against him were adjudicated; this claim includes an ineffective assistance claim due to his counsel’s failure to pursue the claim in the district court. Second, Wilson appeals the district court’s denial of his motion to withdraw his guilty plea. Third, Wilson argues that he is not bound by the appeal waiver in the plea agreement.

The Third Circuit, citing United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), noted its rule that a knowing and voluntary appeal waiver is enforceable if it does not "work a miscarriage of justice." The Court then stated that it would be a miscarriage of justice for the district court to enforce a plea agreement that Wilson should have been permitted to withdraw. Therefore, the Court reviewed the district court’s denial of Wilson’s motion, under an abuse of discretion standard.

The Court first noted that withdrawal of a guilty plea is "not an absolute right." Then, the Court listed three factors to evaluate in a motion to withdraw: (1) whether the defendant asserts innocence; (2) the strength of the defendant’s reasons to withdraw; and (3) whether the government would be prejudiced.

In review, Wilson did assert his innocence, but offered no facts to support it. The defendant cited coercion as a reason to withdraw, but again offered no valid support. Moreover, the Court decided that the package plea deal that Wilson entered was a permissible one. The Court, in upholding the guilty plea, determined that it need not reach the third factor in reviewing Wilson’s motion to withdraw his guilty plea. Likewise, because the Court ruled that Wilson’s appeal waiver was valid and enforceable under Khattak, it found that it lacked jurisdiction to hear his appeal and did not reach his IAD claim.

Government, by not considering downward departure, breached plea agreement

The Third Circuit, in US v. Floyd, held that the government, under a plea agreement, was required to consider whether defendant’s assistance merited a downward departure, even though the agreement stated that the government "may request" a downward departure if the defendant renders substantial assistance.

Floyd and the government entered a plea agreement where Floyd pled guilty to a drug crime that carried a statutory maximum of five years. The agreement also stated that the government "may request" a downward departure for Floyd’s cooperation if Floyd "renders substantial assistance." After entering her plea, Floyd traveled to speak with one of her co-defendants before his trial. The government conceded that this conversation likely led to his guilty plea. Before sentencing, the PSR reported Floyd’s guideline range to be 292-365 months, substantially more than the 60 months permitted by Floyd's plea bargain.

At sentencing, the government did not recommend a downward departure because of the substantial difference between her guideline range and her bargained for statutory maximum sentence. The district court ultimately disagreed with the offense level calculations and found her guideline range to be 41-51 months. The district court then sentenced her to 48 months.

Floyd appealed, arguing that the government acted in bad faith by not considering a downward departure for reasons outside of the plea agreement. The Third Circuit first noted that plea agreements are "contractual in nature." The Court stated that a defendant must show by a preponderance of the evidence that the government violated the plea agreement. Also, any ambiguities are to be resolved in favor of the defendant, due to the greater bargaining power enjoyed by the government.

The Third Circuit assessed the language of the entire plea agreement, stating, "under contract law, the court must read Floyd’s plea bargain in a manner that gives meaning to each provision." Therefore, despite the plea agreement’s language that states that the government "may" request a downward departure if Floyd renders substantial assistance, the Court found that Floyd had an expectation that the government would request a downward departure if she rendered substantial assistance so long as she did not otherwise breach the agreement or commit another offense. This reading resulted from the agreement’s language stating that, if Floyd renders substantial assistance, the government "may decline" to recommend a downward departure for only these two reasons. According to the Court, if unfettered discretion was afforded to the government, such discretion would completely render this other language meaningless.

The Court further determined that the government’s reasoning for declining to recommend a downward departure for reasons extraneous to the plea agreement failed to meet the good faith requirement as set out in United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). The Court found that the government cannot try to avoid performance on the contract simply because it made a mistake in calculating what Floyd’s guideline range would have been. Thus, the Court determined that Floyd was entitled to an evidentiary hearing on whether her assistance was warranted the government’s recommendation for a downward departure.

2254 exhaustion requirement not excused when claim likely futile in state courts

In Parker v. Kelchner, the Third Circuit ruled that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is not excused merely because petitioner’s claim would likely be futile on the merits in state court. Petitioner filed for habeas relief in the district court, stating that the PA Parole Board applied the 1996 version of the Parole Act in denying him parole. He argued that such application violated the Ex Post Facto Clause because he committed his offense before the enactment of the 1996 version of the Parole Act. The district court agreed, granting his petition.

The state appealed, claiming that the district court erred in hearing Parker’s claim due to failure to exhaust: he never pursued it in state court. Parker claims that pursuing the claim in state court would have been futile, because the state supreme court had already rejected this claim on numerous occasions. The district court agreed.

The Third Circuit has previously held that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is satisfied where a state’s procedural rules preclude a petitioner from raising the claim in state court. The Court, here, found that futility is different and does not relieve a petitioner from the exhaustion requirement. The Court cited Engle v. Isaac, 456 U.S. 107 (1982) in support of this proposition. In Engle, the Supreme Court found that a petitioner’s failure to object at trial cannot be excused as futile, simply because the objection was unacceptable to that court at that time.

Despite a concurring opinion in the Third Circuit and some Supreme Court caselaw that lends support to Parker’s futility argument, the Court agreed with numerous sister circuits and rejected it. The Third Circuit also viewed the PA Supreme Court’s repeated willingness to hear the issue as an indication that Parker’s claim may not have been futile in state court.

Capital Habeas Case: Counsel's "Agreement" to Non-Adversarial Sentencing Proceedings A Result of Failure to Prepare

In Marshall v. Cathel, No. 04-9007 (3d Cir. Nov. 2, 2005), a capital habeas appeal, the Third Circuit affirmed the district court’s grant of sentencing phase relief.

The defendant was convicted of arranging a contract that resulted in the murder of his wife. During trial, defense counsel presented evidence of Marshall’s civic and charitable activities and four character witnesses who testified to the defendant’s reputation for honesty and integrity. Counsel also called his client and his client’s three sons to testify about tapes he left for them that were suicide notes of sorts.

Immediately after the conviction, the defendant’s family left, unaware that the sentencing phase would commence the same day. The defendant fainted and was taken to the hospital, but was back in the courtroom by the early afternoon. While the defendant was at the hospital, defense counsel conferred with the prosecutor. They reached an "agreement." The prosecutor would only pursue one of three aggravating factors, namely, that the defendant had hired someone to kill his wife. The prosecution agreed to stipulate to one mitigating factor, that the defendant had no criminal record. Also, defense counsel would retain the right to argue the "catch-all" mitigating factor. Both parties would waive openings and only make short closing arguments to the jury. After these brief proceedings, the defendant was sentenced to death, the jury finding the one aggravating factor outweighed both mitigating factors.

In the state post-conviction proceedings, the courts did not grant a full evidentiary hearing on all of Marshall’s claims and the issue of preparation for the sentencing phase was not the subject of a hearing. The New Jersey Supreme Court rejected the claim saying the court was unwilling to second guess counsel’s strategic decision because the jury found both mitigators. Also, it said that the issue of whether additional investigation would have unveiled additional mitigating evidence was too speculative to merit an evidentiary hearing.

In a prior appeal, the Third Circuit had remanded for a district court evidentiary hearing to address the preparation or investigation, if any, that counsel performed in anticipation of the penalty phase and his reasons, if any, for his actions or inactions. The district court conducted those proceedings.

The Third Circuit concluded that the New Jersey Supreme Court’s conclusion that counsel had been effective was objectively unreasonable. The Court identified several facets of its decision. One was a total failure of counsel to prepare for the sentencing phase. Next, once the verdict was in, he did not request a continuance. In addition, his closing was inadequate. In his closing, counsel recalled only a few pieces of evidence from the trial, did not even mention the defendant’s sons (whose testimony he had felt had moved the jury), and did not plead for his client’s life. The appeals court agreed with the district court that counsel put on no mitigating evidence because he had none to put on.

It did not make a difference that the defendant was a difficult client who was difficult to control. Nor did it make a difference that the community and perhaps his own sons had turned against him. Counsel still had a duty to investigate mitigating circumstances. The Court found it particularly glaring and egregious that counsel did not interview the defendant’s sons with respect to the sentencing phase specifically. While counsel did not believe the sons would plead for their dad’s life, he had nothing on which to base that belief.

The Court held that it was unreasonable for counsel to put so much stock in the evidence he presented in the guilt phase once the jury rendered its verdict. The Court concluded, "[Counsel] did not so much agree to a non-adversarial penalty phase, as he brought it on himself as a result of his own failure to have prepared for that phase of trial."

Section 2254: Counsel Ineffective For Failing to Suppress In-Court Identification

Thomas v. Varner, No. 04-2856 (3d Cir. Nov. 4, 2005). In this § 2254 proceeding, the Third Circuit affirmed the district court decision that counsel was ineffective for failing to object to an in-court identification.

The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.

In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.

Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.

On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.

Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.

The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.

Batson, habeas, and the “McMahon videotape.”

The Circuit Court, in Wilson v. Beard, No. 04-2461 (3d Cir. Oct. 13, 2005), affirmed a lower court’s grant of habeas relief to a petitioner convicted of murder 21 years ago. In doing so, the court touches on a number of intriguing issues concerning both Batson and timeliness under 2244. Most notable is the petitioner’s success under Batson relying largely upon the notorious "McMahon videotape." First however, the court tackles some issues pertaining to timeliness under 2244.

The petitioner, Zachary Wilson, was convicted of first degree murder in 1984, two years before the Supreme Court’s landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor in Wilson’s case was Jack McMahon, an Assistant District Attorney in Philadelphia. In 1988, Wilson unsuccessfully sought post-conviction relief (PCRA) in PA. The PA Supreme Court denied review of his case in 1996. On about April 1, 1997, a videotape of McMahon was released in which McMahon gave a training session on jury selection to other prosecutors. The tape reveals a highly discriminatory practice of striking African-Americans based on race.

On April 3, 1997, the DA’s office sent Wilson’s counsel at the time a letter regarding the tape. Wilson soon filed a second PCRA petition, but the PCRA court found the Batson issue to be waived. Wilson’s state appeals were unsuccessful.

Wilson next filed for habeas relief in the U.S. District Court. The Commonwealth responded, arguing that the petition was time-barred under AEDPA’s one-year statute of limitations. The parties agreed that the discovery of the McMahon tape constituted the factual predicate for the habeas petition, and therefore the one-year limitations period should run from when that tape was discovered. However, the Commonwealth argued that Wilson’s petition was four days late because he could have discovered the tape on April 1 "through the exercise of due diligence." § 2244(d)(1)(D). Wilson disagreed, arguing that his presence on death row 13 years after his conviction in this case prevented such discovery; therefore the one-year period should not run until his counsel actually received notice from the DA’s office about the tape. After factoring the tolling of the limitations period for his state PCRA proceedings and appeals, if the latter date was used, Wilson’s petition would be timely by one day.

The Third Circuit, using a "reasonable diligence" standard, agreed with the District Court that Wilson did not fail to exercise due diligence in not discovering the tape during the period in which the tape was reported on the local news. Therefore, the limitations period would run from the date on which Wilson’s attorney received notice of the tape via the DA’s letter.

The Third Circuit next agreed with Wilson and the District Court’s application of FRCP 6(a), which excludes the day that an event occurred when calculating the limitations period from that event. Basically, application of the rule would provide Wilson 365 days from the date that he received notice of the tape, rather than 364. The Circuit Court’s decision was consistent with rulings of other Circuit Courts.

Next, the Court agreed with Wilson and the District Court’s application of FRCP 6(e), which provides a 3-day mailbox rule for determining receipt of service on a party. The Court determined that application of the rule was "eminently sensible" because the Court must add some additional time to account for the time it takes for a letter to be received.

Finally, the Court also agreed that Wilson was entitled to an evidentiary hearing regarding his Batson claim. The fact that the state PCRA Court had found that Wilson had waived his Batson claim was not the equivalent of "procedural default," which would bar habeas relief. The Court determined that the PA Courts had erred in failing to apply PA Supreme Court precedent that would have allowed Wilson to seek post-conviction relief.

Upon the Third Circuit’s thorough inspection of the relevant habeas issues, the Court reviewed the merits of Wilson’s Batson claim, which relied primarily upon the McMahon tape to establish that McMahon had engaged in purposeful discrimination in striking black venirepersons. The following summary follows the organization of the Court’s decision:

Batson step one: The Court relied upon the explicit admissions in the McMahon tape to find that Wilson had established a prima facie Batson violation. Of the 16 people struck by McMahon, 9 were black, the race of the remaining 7 is unknown. McMahon's testimony at the evidentiary hearing before the District Court failed to convincingly refute this finding.

Batson step two: The Court found that, given that 20 years had elapsed since Wilson’s trial, the explanations offered by McMahon at the evidentiary hearing were sufficient to carry the Commonwealth’s minimal burden in offering some semblance of a race-neutral explanation for each person struck.

Batson step three: The Court again relied upon the tape in affirming the District Court’s decision that McMahon had, in fact, struck jurors based on race. The tape reveals a longstanding practice of McMahon, and the Court found no reason to believe that McMahon was following a different practice during Wilson’s trial. Finally, at step three of the Batson analysis, the Court states that Wilson’s "burden is to show that it is more likely than not that McMahon did so with respect to at least one of the jurors he struck. . . . We agree with the District Court that Wilson has carried this burden."

The Court ultimately affirms the District Court’s grant of habeas relief, stating that the facts of the case coupled with the McMahon tape "give[] rise to an almost unavoidable inference that the prosecutor engaged in prohibited discrimination."

2254 relief granted for Sixth Amendment violation -- trial court denied counsel's request for continuance and defendant proceeded to trial pro se

Defendant was charged in New Jersey state court on multiple counts of theft by deception involving prospective buyers whose investments in a failed condominium development were not refunded. Counsel was appointed, but a few months before trial was scheduled to begin new counsel was appointed and requested a continuance in view of the lengthy witness list counsel just received, the need to conduct extensive interviews and the late production of discovery. The trial court denied the continuance request, and the defendant then elected to represent himself at trial because he was more familiar with the facts and witnesses than was his new counsel. The trial court granted the request to proceed pro se, and counsel remained as back-up. After losing at trial and on direct appeal, defendant filed under 2254. The Third Circuit reversed the district court's denial of relief, concluding that the denial of the request for continuance rendered the defendant's waiver of his Sixth Amendment right to counsel involuntary and that the state courts' decision was contrary to and an unreasonable application of established Supreme Court law. Pazden v. Maurer, http://www.ca3.uscourts.gov/opinarch/034236p.pdf

Third Circuit Remands to Decide if Officer Deliberately Violated Miranda Before Getting Mirandized Statement

In United States v. Naranjo, http://www.ca3.uscourts.gov/opinarch/034759p.pdf, the Third Circuit held that if officers deliberately used a two-step strategy to obtain a confession in violation of Miranda, first interrogating a custodial defendant without warnings and then obtaining a postwarning statement, both statements must be exluded unless curative measures were taken before the postwarning statement was made. This was the Court's first application of the recent plurality decision in Missouri v. Seibert, 542 U.S. 600. In Naranjo's case, the suppression hearing took place prior to the Seibert decision. The evidentiary hearing revealed that the entire interrogation session was custodial, but that the warnings were only given toward the end of the session. The government conceded that the statements given in the first part of the interrogation session should be suppressed, but contended that the postwarning statements should be admitted because they were voluntarily given under Oregon v. Elstad, 470 U.S. 298. Because the hearing took place prior to Seibert, the district court made no finding whether the officers' decision to interrogate without giving warnings was deliberate, and the Court therefore remanded. The Court stated the test in these cases as follows: "Accordingly, unless the agents deliberately withheld warnings, Elstad controls [and] the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct . . . . If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."