Supervised Release - Consecutive sentences allowed upon revocation

In US v. Joseph Dees, No 05-4949 (Nov. 8, 2006), the Circuit joined with six other circuits in ruling that under 18 usc sect 3584(a), a district court may "impose consecutive terms of imprisonment upon revocation of supervised release -- even when the sentences for the underlying crimes ran concurrently."

Dees had pleaded guilty on three separate dates to three separate offenses. He was sentenced, however, for all 3 cases at the same time by one judge. The sentence was 51 months in prison and 3 years supervised release on each of three separate convictions to run concurrently. Dees served his sentence and upon release accumulated multiple violations of his release conditions. At a violation hearing, the judge revoked supervised release and imposed 24 months in prison on each of the three supervised release terms, to run consecutively, for a total of 72 months. The Circuit found that nothing in the statute precludes such consecutive sentences upon violation, even though the original terms of supervised release ran concurrently.

Third Circuit finds unlimited "but for" theory of restitution calculation erroneous; reiterates admissibility of custom & practice testimony

On December 12, 2006, the Third Circuit ruled in United States v. Fallon, Case No. 03-4184, that awarding restitution owed under the Mandatory Victims Resolution Act ("MVRA") pursuant to a theory of unlimited "but for" causation is error requiring a new restitution hearing. The Third Circuit also held that the exclusion of testimony about industry custom and practice was error as a matter of law, but that such error was harmless in this case.

At the restitution hearing, the district court found by a preponderance that American Business Leasing ("ABL"), which had purchased microdermabraders from Mr. Fallon’s company and then leased the devices to doctors, would not have purchased the devices but for Mr. Fallon’s forgery of the FDA approval letter that Mr. Fallon provided to ABL during their negotiations. The district court consequently found that all of ABL’s losses from unpaid lease payments were caused by Mr. Fallon’s misrepresentation. It assessed restitution of over $55,000 ($125,000 in unpaid lease payments, minus about $30,000 for paid lease payments and $40,000 for the value of the devices owned by ABL).

On appeal, the Third Circuit vacated this award as erroneous and remanded the case for a new restitution hearing. The Third Circuit ruled that while "a . . . rebuttable inference arises that subsequent losses suffered by the victim are sufficiently linked to the underlying fraud to support an award of restitution" where a "transaction was consummated due to [the defendant’s] fraud," the argument that no loss would have occurred but for the fraud is insufficient to bear the government's burden of showing direct causation of the harm where, as here, the defendant rebuts the presumption with evidence that the loss occurred for reasons unrelated to the fraud. Mr. Fallon showed that at least $34,000 of ABL’s loss arose when two doctors defaulted on their lease payments for reasons unrelated to the fraud. One doctor filed for bankruptcy. The other passed away.

The Third Circuit also reiterated in this opinion that "[t]his court has consistently allowed ‘testimony concerning business customs and practices,'" and that "a witness need not represent an entire industry in order to have sufficient knowledge of that industry’s customs and practices so as to render substantial assistance to the jury." The Court consequently found the district court's exclusion of Mr. Fallon's proffered custom and practice testimony to be erroneous. However, it went on to hold that such error was harmless in this case because Mr. Fallon was able to impeach the testimony of the government witness who testified that the FDA approval letter was a required part of the negotiations, and because another witness testified that he had never required such approval letters from device manufacturers during his fifteen years in the leasing industry.

Another guideline sentence affirmed, more specific reasons for sentence not required

On November 28, 2006, the Third Circuit issued another precedential decision affirming a within-guideline sentence. In United States v. Lloyd, No. 05-4241, the defendant pled guilty to a drug conspiracy and faced a range of 168-210 months. The district court imposed 168 months and, after a Booker remand, imposed the same sentence. The court reaffirmed its practice of applying plain error review to an unpreserved argument that the district court failed in its procedural approach to sentencing. While counsel may have strategic reasons for not making certain objections, any hope of meaningful review on these questions requires an objection in the district court. The court found no plain error in the failure to give more specific reasons, stating that "a court can provide concrete reasons for its sentence without speaking at great length." Also, the court found no plain error in failure to give greater weight to the defendant's post-sentencing rehabilitation efforts, concluding that such efforts will only be relevant in unusual circumstances given the unfair disadvantage of defendants who have no opportunity to come back for resentencing. The court also concluded that the sentence was reasonable.

3d Cir emphasized adherence to Gunter in finding sentence reasonable

The Third Circuit in United States v. Charles, No. 05-5326, emphasized reliance on the three-step sentencing procedure articulated in United States v. Gunter, No. 05-2592. In rejecting appellant's arguments that his sentence was unreasonable, the Court held that the district court complied with steps one and three by determining the applicable guideline range and discussing the parties' arguments regarding his background and personal circumstances. Analogizing to United States v. King, No. 05-1728, the Court determined that the record supported a maximum guideline sentence of 46 months. The Court rejected Charles's parsimony argument that the district court was required to note why a low-end guideline sentence was insufficient to meet section 3553(a)(2)'s penological goals, and his argument regarding unwarranted disparities, stating that any alleged disparities here were non-statutory and resulted from the district court's reasonable exercise of discretion after considering the requisite three steps for calculating sentences.

Letter classification of offense under § 3559(a) does not require reference to guidelines

The Third Circuit in United States v. Lovett, No. 05-4171 (3d Cir. Nov. 6, 2006), rejected the contention that under § 3559(a), the "maximum term of imprisonment authorized" is based on the maximum term of imprisonment authorized by the Guidelines, rather than the statute of conviction. Lovett received a 16-month sentence for his conviction of making a false statement to a federally licensed firearms dealer in violation of 18 U.S.C. § 922(a)(6), and, on appeal, challenged only the imposition of his three-year term of supervised release. Since his range would have been 12-18 months, he argued, he would have thus been classified as a Class E felony, for which the term of supervised release would not have exceeded one year. The Third Circuit rejected the argument, reasoning that the classification process in § 3559 requires, first, identifying the offense of conviction, then, if a letter grade has not been assigned, looking to the "maximum term of imprisonment authorized." Because § 3559(a) refers to the "section defining" the criminal offense, the Court concluded that this can only refer to the Federal Crimes Code, not the sentencing guidelines.

Mummert Survives Booker, but Sentences Require Minimal Explanation

The Third Circuit has carried its rule requiring remand of ambiguous departure rulings forward into the post-Booker world. The doctrine, originating in United States v. Mummert, 34 F.3d 201 (3d Cir. 1994), stemmed from the need to determine whether the appellate court had jurisdiction to hear an appeal challenging a Guidelines sentence--legal departure denials were reviewable while discretionary denials were not. Since sentencing courts must still rule on departure motions in the Third Circuit, and since reviewability of such rulings still turns on their legal or discretionary nature, Mummert continues to serve a purpose, the Court held in United States v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006).

Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the government's opposition to the motion below as appealing to the district court's discretion. That is a controversial conclusion, as the government below and on appeal argued that the facts presented by Mr. Jackson do not "rise to the level" needed for a departure---seemingly a legal argument.

Jackson likewise seems to confirm that the Third Circuit will approve very "bare bones" explanations of sentences by district courts. Here, the sentencing court cited Mr. Jackson's criminal history and expressly rejected one of his mitigation arguments in imposing a Guidelines sentence, but was silent as to many other mitigating factors presented as well as to the departure motion. That explanation was upheld as sufficient.

A rehearing petition is pending in Jackson, asking the Court, among other things, to establish a supervisory rule requiring express and clear departure rulings, and to require district courts, as part of the explanation of sentence, to state why they reject any non-frivolous sentencing arguments made by the parties.

UPDATE: Rehearing has been denied.

18 U.S.C. § 922(a)(3) conviction does NOT constitute "aggravated felony" for removal purposes

In Joseph v. Attorney General, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006), the Third Circuit ruled that a conviction under 18 U.S.C. § 922(a)(3), which makes it illegal for any person other than a licensed manufacturer, dealer, or collector to transport into or receive in the State where he resides any firearm purchased or otherwise obtained by such person outside that state, does not constitute an aggravated felony for removal purposes because the offense did not include any trafficking element, i.e., any element of dealing in firearms or any intent to sell or otherwise distribute the firearms.

Sentences for Class B and C misdemeanors must be reviewed under pre-Guidelines standard applicable to those offenses

Grand jury target Jelanie Solomon was convicted of criminal contempt for failing to provide handwriting exemplars ordered by the district court. He was sentenced to 5 months imprisonment on the contempt conviction, thus classifying the conviction as a Class B misdemeanor. On appeal, the parties disagreed over the standard of review to be applied. The government argued that the sentence should be reviewed for an abuse of discretion, while Solomon argued that his sentence must be reviewed for "reasonableness" under United States v. Booker, 543 U.S. 220 (2005). The Third Circuit noted that while the Guidelines were still mandatory, the circuits were divided on the standard of appellate review. In re Solomon, Nos. 06-2819, 06-2820 (3d Cir. Oct. 2, 2006). Upon present consideration, the Court found that the exclusion of Class B and C misdemeanors from the Guidelines provisions was intended to place those offenses entirely outside the statutory scheme, including the appellate review provisions contained in 18 U.S.C. § 3742(e). Accordingly, the Court held that appellate review of sentences imposed for Class B and C misdemeanors must be conducted under the pre-Guidelines standard applicable to those offenses, rather than the reasonableness test set forth in Booker. The standard of review applicable to criminal contempt offenses was abuse of discretion. The Court ultimately found that the five month sentence imposed in Solomon's case was not an abuse of discretion.

By ruling in this fashion, the Third Circuit noted that it need not contend with a question currently dividing the other circuits - namely, the continued viability of the "plainly unreasonable" standard of review.

The Court made two additional rulings in this case. First, it concluded that the government made a sufficient preliminary showing that the handwriting exemplars were relevant to the grand jury's investigation to warrant contempt charges. Second, the Court ruled that the district court's order denying Solomon's motion to quash search warrant for his blood and saliva did not qualify for interlocutory review under the collateral order doctrine.

Troubling credibility ruling and Harris still good law

In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury." If the witness had not asserted on direct examination that he had never committed murder, this logic holds up. However, in light of the witness’s affirmative assertion on direct, the ruling is more troubling. Rule 608(b) concerns confrontation of a witness with a prior act that demonstrates the witness’s character for truthfulness or untruthfulness, and that therefore in and of itself tends to show that the witness lacks or has credibility. But in Williams the defense was not trying to show that because Carter was a murderer, he was also a liar. Rather, the purpose of the cross examination was to contradict Carter’s direct testimony that he had never committed a murder. Perhaps future application of the opinion will turn on the extremely weak evidence showing that Carter committed the murder.

The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.

Win one and lose one in capital cases in Delaware

In a pair of Delaware capital habeas appeals, on September 28, 2006, the panel of Judges Rendell, Ambro and Fuentes addressed the death penalties imposed on two codefendants convicted in the 1992 murder of Wilson Mannon. Another codefendant did not appeal his death sentence and was executed in 1995. Time will tell which of these two opinions, the one granting penalty phase relief or the one denying it, has more far-reaching impact.

The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defendant, the defendant’s criminal history and history of assaultive behavior, and the traumatic death of the defendant’s infant son. The defendant also allocuted on similar topics. The jury recommended death by a vote of 7-5. Post-conviction counsel uncovered extensive mitigating evidence that had not been discovered by trial counsel, including extensive physical abuse of the defendant by his father, that the defendant’s mother drank heavily during her pregnancy with him, that the defendant suffered two head traumas as a child, that he was placed in learning disabled classes at the age of ten, that he was placed with foster families and shelters and that a foster mother sexually abused him, and that the defendant had abused alcohol and drugs since adolescence. Writing for the panel, Judge Ambro concluded that the state courts’ ruling that trial counsel’s performance was adequate was an objectively unreasonable application of Strickland. Citing the ABA standards applicable to capital counsel, the court refused to accept trial counsel’s explanation that they did not investigate further based on their discussions with the defendant’s mother, because counsel had insufficient evidence from which to conclude that further investigation would prove futile. Also, the court rejected trial counsel’s asserted strategy to argue innocence to the jury during the penalty phase rather than mitigation. They had abandoned that approach at the time by admitting the defendant’s guilt, prompting the court to observe that their strategic decision "resembles more of a post-hoc rationalization . . . than an accurate" account of their conduct at the time. The panel further found the inadequate representation prejudicial, particularly in light of the fact that there were critical facts such as neurological damage the jury never heard, and the close jury vote (7-5).

In contrast, the panel denied sentencing phase relief in Shelton v. Carroll, No. 04-9004 (9/28/06). During the penalty phase the defendant first asked to proceed pro se and insisted that no mitigation evidence be presented. Following lengthy colloquies with both the defendant and his counsel in which they advanced the defendant's strategic decision to demonstrate to the jury that the defendant would not "beg for my life," defense counsel proceeded based upon the defendant’s specific instructions as to which mitigation witnesses to call and what questions to ask them. Counsel called three siblings who testified about the alcohol abuse, anger and violence in the household growing up, the defendant’s difficulties in school and in their neighborhood, and that he was a loving brother. In the state post-conviction proceeding, the defense called a clinical social worker who interviewed several family members and others who knew the defendant and reviewed court, juvenile court and psychiatric records, and who opined that the defense presentation in mitigation was "seriously deficient." Writing for the panel, Judge Fuentes concluded that counsel’s representation was not ineffective. Despite the same ABA guidelines cited in Outten, the court concluded that it was the defendant himself whose "deliberate and strategic determination that he ought not present mitigating evidence" that led to counsel’s performance. Further, because much of the information that was contained in the reports was presented through the siblings’ testimony, the defendant was unable to show prejudice (despite the fact that the jury had recommended death by a vote of 8 to 4). The defendant also claimed that he was denied his constitutional right to allocution in the sentencing phase. The trial judge had not permitted him to allocute as to the facts of the case (he maintained his innocence), and he had not testified at trial. The Third Circuit observed that the Supreme Court has never held that there is a constitutional right to allocution. The defense argued that Lockett v. Ohio, 438 U.S. 586 (1986), and Eddings v. Oklahoma, 455 U.S. 104 (1982), required that he be permitted to allocute with respect to the offense. The court instead concluded that under Oregon v. Guzek, 126 S. Ct. 1226 (2006), a defendant has a right to present evidence as to how, not whether, the crime was committed, and because he had not testified at trial, the defendant did not have a right to present new evidence inconsistent with guilt during the penalty phase.

Further pondering will reveal additional distinguishing features between these two cases, but two come to mind at first glance. First, post-conviction counsel in Outten was able to point to specific mitigating facts (such as head injuries) that were apparent in the defendant’s easily accessible records and that were not touched upon by the witnesses who testified in the penalty phase. Second, in Shelton the defendant and his counsel were extensively colloquied on the record about their decision, which they characterized at the time (rather than post-hoc) as strategic, not to present mitigating evidence.

Third Circuit Blog

Third Circuit Blog
SEARCH WARRANT VALID DESPITE FACTUAL INACCURACIES IN CHILD PORNOGRAPHY CASE. In USA v. Shields, 458 F.3d 269 (No.05-3662, Aug.16, 2006), the Third Circuit upheld defendant's conviction for possessing child pornography, finding that the affidavit that formed the basis of a search warrant, when excised of its known false statements, still supported probable cause. Shields' prosecution resulted from an undercover FBI investigation of two alleged child pornography websites. Shields was a member of both e-groups, subscribing with an email address of LittleLolitaLove@aol.com. The FBI created a template for a search warrant affidavit for use by FBI offices nationwide which contained serious factual inaccuracies, including a statement that, just by joining either of the e-groups, all members automatically received emails containing images of child pornography as they were posted on the respective sites. In reality, not all members automatically received all emails, but rather had to sign up for that option.
The search warrant executed against Shields contained these false statements. It also contained statements specific to Shields, verifying that the email address was his, that he was a member of both e-groups, and the dates of his membership. As a result of the search, the FBI seized Shields' computer, containing hundreds of images of child pornography, and binders and notebooks of similar images. Shields waived his Miranda rights and confessed to viewing and possessing child pornography.
Shields sought to suppress the physical and statement evidence for lack of probable cause, because of the false allegations in the affidavit. The Court found that despite the serious and reckless misrepresentations of material fact, the warrant supported probable cause without the tainted statements and was sufficient under the standard set forth in Illinois v. Gates, 462, U.S. 213 (1983).

Third Circuit Blog

Third Circuit Blog
COURT UPHOLDS PROHIBITION ON PROPENSITY EVIDENCE IN REVERSE 404(B) CASES. In USA v. Williams, 458 F.3d 312 (No.05-3772, Aug.18, 2006), the Third Circuit affirmed the district court's exclusion of defense evidence and held that under Fed.R.Evid 404(b), "reverse 404(b)" evidence of other crimes or bad acts cannot be offered by a defendant if its principal reason is to show the propensity of a third party to commit a crime. Defendant was charged with felonious possession of a gun after he was apprehended in a bedroom where the gun was found under a mattress. Two other men were also arrested in the house.
The defense theory was that the gun belonged to one of the co-defendants. It moved to introduce evidence under 404(b) that the co-defendant had a prior conviction for gun possession. It argued that under USA v. Stevens, 935 F.2d 1380 (3d Cir. 1991), defendants offering evidence of a third party's bad acts have a lower threshold than when such evidence is offered against the defendant. That case involved a bank robbery defendant who sought to introduce evidence of another robbery committed in a very similar manner in which he was not a suspect. It was offered to show identity between the two robberies, and the Third Circuit ruled the evidence admissible, finding that when evidence of other crimes of a third party is offered to show identity, a lower standard of similarity between the crimes should govern than when the evidence is offered against the defendant. In such cases of reverse 404(b) evidence, the court should allow it if its probative value is not substantially outweighed by risk of prejudice and other Rule 403 considerations.
Here, the court held that Stevens did not apply because propensity (not identity or other legitimate reason) was the only purpose for which the defense sought to introduce evidence of the co-defendant's prior conviction. The lower burden for reverse 404(b) evidence only applies when it is offered for a purpose other than propensity, and Stevens didn't change that basic mandate. The court also upheld the reasonableness of the sentence, finding that although there was no gun violence in the instant case, the district court did not abuse its discretion by making comments at sentencing about the general seriousness of gun violence and a recent shooting of a Newark police officer.

Third Circuit Blog

Third Circuit Blog

Special Skill Enhancement Reversed. In USA v. De La Cruz, No.05-5554 (Aug.18, 2006), the Circuit reversed a 2-level enhancement for use of a special skill, USSG 3B1.3, where the defendant's "special skill" consisted of operating a 20-ft. power boat on a 50-mile trip from Puerto Rico to St. Thomas to transport cocaine. The court held that no special skill was used to pilot the boat, which the defendant borrowed from a friend. The boat had a 40 horsepower engine and contained no navigational equipment, marine radio, or nautical charts. De La Cruz had no boating license, made the trip in the daytime, and took a direct route. Based on these facts, the Court found that the trip was a straight, relatively simple trip requiring only line-of-sight navigation, with the boat never out of sight of land. It distinguished the 11th Circuit's opinion in US v. Calderon, 127 F.3d 1314 (1997), where the enhancement was warranted where the defendants piloted a 38-foot boat on the high seas from the Bahamas to Southern Florida, traveled at night with the lights off using only charts and a compass, and took a circuitous path to avoid detection by the Coast Guard. Here, it was clear error to apply the enhancement. Reversed and remanded.

Third Circuit Blog

Third Circuit Blog
In USA v. Abrogar, No. 06-1215 (Aug. 18, 2006), appellant's sentence for failing to an keep accurate oil record book (required for ships by international treaty prohibiting oily waste discharges and 33 USC 1908(a)) was enhanced 6 levels because the offense "resulted in" discharges of oily waste, USSG 2Q1.3(b)(1). The Third Circuit disagreed, first observing that the offense only encompasses the failure to maintain accurate records while the ship is in US waters or at a US port. Applying a relevant conduct analysis, the Court reasoned that since no discharges occurred in US waters, they didn't occur during the commission of, in preparation for, or in the course of attempting to avoid detection for, the offense of conviction. Reversed and remanded.

3d Cir allows consideration of crack/powder disparity

In what is certainly the best circuit decision on the issue, as well as the one most faithful to Booker, the 3rd Cir ruled in US v. Johnny Gunter, No. 05-2952 (click here) that district courts may consider the 100:1 crack/powder quantity differential, on which the guidelines for cocaine are based, as a factor in deciding what sentence to impose. Along the way, the Court also clarified the correct sentencing procedure post-Booker, and made clear once again that the guideline range is truly "advisory" and not binding on the courts. This is a must-read decision for all involved in federal sentencing in the 3rd Cir.

In Gunter, the defendant was found guilty of possession with intent to distribute more than 50 grams of crack cocaine (72.5 grams to be exact) and faced a guideline range of 295-353 months. Had the 72.5 grams been cocaine powder instead, the range would have been 111-123 months, because the guidelines treat 1 gram of crack as the equivalent of 100 grams of powder for offense level purposes. Defense counsel argued for a sentence below the guideline range on the basis of this disparity, pointing out that the Sentencing Commission itself has issued several reports finding that this disparity is unwarranted and treats crack offenses too harshly. The district court rejected defense counsel's arguments on the ground that the 100:1 crack/powder ratio was a legislative determination, and that the court was therefore bound by the guidelines range based on that ratio.

The Circuit ruled that the district court erred in concluding it did not have the discretion to consider the crack/powder differential, and in treating the guideline range as mandatory. The Circuit began with a review of the Sentencing Commission's findings over the years that crack and powder are pharmacologically indistinguishable, that the 100:1 ratio results in punishing low-level crack dealers more harshly than whole-sale powder distributors, that it has a disproportionate effect on African-American defendants, and that it overstates the seriousness of crack offenses.

The Circuit then reviewed the correct sentencing procedure, noting that sentencing under the now advisory guidelines is controlled by Section 3553(a), which "begins with the broad mandate that sentencing courts "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in the statute. This reference to what has become known as the "parsimony provision" is significant since it has frequently not be mentioned at all in other opinions addressing sentencing under Booker. The Court also set out the "three-step sentencing process" that district courts should follow post-Booker:

1) Calculate the guideline range correctly;
2) Formally rule on any
departure motions and explain how those rulings affect the guideline range;
3) Exercise discretion under section 3553(a) by considering the relevant
factors listed there and imposing sentence "regardless whether it varies from
the sentence calculated under the Guidelines."

The Court thus continues to distinguish between "departures" under the guidelines provisions (step 2), and "variances" under the section 3553(a) factors (step 3).

Next, the Court neatly harmonized the decisions of other circuits to have addressed the crack/powder issue, and noted with approval the more than "two dozen district courts (hardly a 'handful') that have used their Booker discretion to refuse to apply the 100:1 crack/powder cocaine discrepancy." While making clear that district courts cannot substitute their own ratio for the 100:1 ratio, the Court explained that "no circuit court has held that a sentencing court errs in simply considering the particular form of a drug involved in the offense as one of the many individual factors in imposing a sentence."

The Circuit then ruled that "post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines -- but no demanded by 21 U.S.C. 841(b) -- as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant section 3553(a) factors)." That was the error that occurred here, and thus the Court remanded for resentencing.

The penultimate sentence of this decision merits some discussion. The Court states, "Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten." Slip op. at 28-29. Read in context, it appears that this statement is a reference to the calculation of the guideline range in step one of the sentencing process, in which the guideline range must be correctly calculated on the basis of the 100:1 ratio. The Court is referring to the ruling in US v. Pho, 433 F.3d 53 (1st Cir. 2006), in which the First Cir. held that "the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 ratio embedded in the sentencing guidelines." Id. at 64. Thus, in calculating the guideline range in step one, the district court cannot "construct[] a new sentencing range" based on a different ratio.

But at step three of the process, the district court exercises its discretion under section 3553(a) in setting the sentence "regardless whether it varies" from the guideline range. Thus at that stage the district court is free to consider what the sentence would be under a ratio (such as 20:1) that more accurately reflects the seriousness of crack in relation to powder. Indeed, consideration of the 20:1 ratio would be a good way for the district court to make its reasoning transparent, and would in effect be the sort of "analogic reasoning" that the Third Cir. has strongly encouraged district courts to use in sentencing outside of the guideline range. See US v. King, 2006 WL 1889976, *5 (3d Cir. 7/11/06) (courts sentencing outside range should look for a "suitable analogy" in other guidelines policy statements). As Gunter held, at step three, the district court is free to "consider the crack/powder cocaine differential," and this must necessarily encompass the discretion to consider what the sentence would be under a 20:1 differential, since the 100:1 differential is "simply advisory at step three." Gunter slip op. at 28.

Thus, as long as the district court does not categorically reject the 100:1 ratio in step one, it is free in step three to consider what the result of a different ratio would be as it exercises its discretion and treats the guideline range "as simply advisory."

Third Circuit finds reversible error in exclusion of expert testimony regarding reliability of eyewitness identification

In United States v. Brownlee, Case No. 04-4134 (3d Cir. July 18, 2006), the defendant was convicted of carjacking, use of a firearm in relation to a federal crime of violence, and possession of a firearm by a convicted felon. His convictions were based primarily on eyewitness identifications and inculpatory statements that he made to a law enforcement officer prior to being informed of his Miranda rights. The Third Circuit remanded the case for a new trial, finding that the District Court erred in excluding the expert witness testimony and in admitting the inculpatory statements.

At a pretrial Daubert hearing, the District Court excluded defendant's proffered expert testimony on the reliability of show-ups in relation to other identification techniques, the peculiar suggestiveness of the show-up in this case, confidence malleability, post-event suggestiveness, and the low correlation between eyewitness confidence and eyewitness accuracy. The Third Circuit held that the science underlying the type of expert testimony that defendant wanted to present on eyewitnesses is well-established. It further held that the expert testimony would have been helpful to the trier of fact and should have been admitted because the Government relied in part on the confidence of the eyewitnesses to bolster its case against defendant, and the defendant was arguing a theory of mistaken identity despite there being no "physical scientific means" by which defendant could undermine the eyewitness identifications or otherwise inform the jury that eyewitness confidence may not be correlated with accuracy. The Third Circuit then held that the erroneous exclusion of the expert testimony was not harmless, and remanded the case for a new trial in which the defendant should be permitted to present expert testimony on all of the proffered topics of expert testimony.

The Third Circuit also found reversible error in the District Court's admission of inculpatory statements made by the defendant in response to questions posed by a law enforcement officer before the defendant heard his Miranda rights. At the time he was questioned, the defendant was handcuffed and locked in the back of a police cruiser. The law enforcement officer (with whom the defendant was acquainted) asked defendant questions in a conversational manner. The answers to the questions would establish that the defendant had been driving the carjacked car, present at the scene of the crash of the car, and in possession of a firearm found at the scene of the crash. The Third Circuit found that even though the law enforcement officer may not have actively intended to elicit inculpatory statements, the defendant was subjected to custodial interrogation under these circumstances. It then held that the error was not harmless because, given the peculiar probative force of confessions, the inculpatory statements likely had a profound influence on the jury's decision.

Finally, the Third Circuit found that the District Court had not erred when it admitted eyewitness identifications that were the result of unduly suggestive show-ups. The Third Circuit found that while the eyewitnesses (1) identified the defendant while he was either handcuffed in the back of a police car or handcuffed and surrounded by police while standing next to a police car; (2) were permitted to see and hear one another identifying the defendant; and (3) were able to give only general descriptions of the suspect, there were sufficient indicia of reliability associated with the eyewitness's identifications that the admission of the identifications was not a violation of the defendant's due process rights. Rather, the flaws in the eyewitness's identifications were for the jury to consider when weighing the eyewitness testimony.

Third Circuit affirms post-Booker sentence modeled on pre-Booker sentence of defendant's co-conspirator

The Third Circuit affirmed a sentence that the District Court modeled on the sentence of the defendant's co-conspirator, which was issued prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 160 L.Ed.2d. 621 (2005) and under the then-mandatory Sentencing Guidelines. In United States v. Flores, No. 05-1271 (3d Cir. July 21, 2006), the District Court imposed a sentence of 32 months imprisonment for defendant's convictions of conspiracy to commit money laundering, money laundering, and conspiracy to structure currency transactions. The sentence is 38 months less than the bottom of the District Court's calculated advisory Sentencing Guidelines range. The District Court stated that it was issuing the 32 month sentence to avoid disparities between the sentences of the defendant and his co-conspirator.

Defendant argued that by modeling his sentence on a pre-Booker sentence issued under the mandatory Sentencing Guidelines, the District Court essentially and erroneously bound itself to the mandatory Guidelines, and that his sentence was therefore unreasonable. The Third Circuit affirmed the sentence. It found that the sentence was reasonable under Booker because the District Court (1) was aware that the co-conspirator's sentence was calculated under the mandatory Sentencing Guidelines; (2) did not consider the co-conspirator's Guidelines range binding; and (3) deliberately entered a sentence below the advisory Guidelines to "create parity with a far less culpable co-defendant."

The Third Circuit also held in this case that it did not need to reach the merits of the defendant's challenge to the District Court's calculation of his advisory Sentencing Guidelines range because the sentence issued by the District Court was within the Guidelines range that would have resulted if the District Court had calculated defendant's sentence in the manner suggested by the defendant.

New standard for reckless disregard of truth of law enforcement information

On August 24, 2006, the Third Circuit announced the standard by which the district courts should determine whether a government agent acted recklessly in relying on information provided by a sister government agency and including it in a search warrant affidavit. In U.S. v. Yusuf, No. 05-3484, an FBI agent presented an affidavit containing information that later proved to be inaccurate because of an error made by the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Although the district court concluded that the agent had acted in reckless disregard for the truth and excised the information from the affidavit, the Third Circuit noted the general presumption of reliability afforded information that law enforcement officers receive from each other for use in their investigations and set forth the test to be used when an affidavit is found to contain inaccurate information. In order to show that an agent has acted recklessly, the defendant must first establish that "that the information would have put a reasonable official o notice that further investigation was required." Then, he must present evidence "(1) of a systemic failure on the agency's part to produce accurate information upon request; or (2) that the officer's particular investigation into possibly inaccurate information should have given the officer an obvious reason to doubt the accuracy of the information."

Here, the defendants operated a chain of grocery stores in the Virgin Islands and the FBI was conducting an investigation to determine whether they had been laundering money for a drug trafficker. The VIBIR provided inaccurate tax records indicating that the defendants had underreported their income on tax returns by $54 million, and the FBI relied on that information to support allegations of tax fraud in the affidavit. When more information became available, it turned out that the defendants had underreported by a little more than $7 million. However, the agent on the case did not investigate to determine whether the records were accurate, and he admitted at a Franks hearing that he should have.

Regardless, the court concluded that the agent had not acted recklessly. In assessing an agent's failure to investigate further upon receipt of questionable information, the court explained, the district court must consider "whether a reasonable agent would have been aware of a systemic failure on the [sister] agency's part to produce accurate information upon request," and whether further investigation would give an agent reason to doubt the information's accuracy. In answering the first question, the district court should look at whether the agent knows that the sister agency has a history of providing inaccurate information, and whether it has procedural safeguards in place to prevent the dissemination of inaccurate information. As for the second question, the court should consider where the information comes from and what it concerns, whether there is a "reasonably plausible explanation" for the inaccuracy, and "the quality of the agent's attempts to validate the information."

In this case, the agent reported that neither he nor any other FBI agent had ever received inaccurate information from VIBIR, and that he had repeatedly asked VIBIR for an explanation of the discrepancy in the tax records that indicated the underreporting. VIBIR produced the information in response to a court order, which dispelled any suspicion that the two agencies colluded to submit a falsified affidavit. The FBI initiated the investigation, so it could not be alleged that VIBIR provided the information to conceal bad faith or an improper motive. Finally, VIBIR's insistence that the defendants underrepresented their income provided a reasonably plausible explanation for the error in the tax records. Therefore, the agent did not act in reckless disregard of the truth.

Discovery of significance of evidence does not make it newly discovered

In U.S. v. Cimera, No. 05-2360, the court considered a claim under the "newly discovered evidence" rule that it set out in U.S. v. Ianelli, 528 F.2d 1290 (3d Cir. 1976). Cimera was convicted on fourteen counts that arose from his participation in an illegal check cashing scheme, and after his motion for judgment of acquittal was denied, he hired new counsel. Upon further investigation of the checks that were the subject of the charges, the new attorney discovered a discrepancy in the account numbers printed on the back of the checks -- they were not all deposited into the same account. Cimera moved for a new trial, arguing that this was newly discovered evidence under this circuit's formulation of the test. The problem -- these checks had been admitted into evidence at trial.

Nevertheless, the district court granted the motion, concluding that Cimera had met the five requirements for newly discovered evidence: (1) the evidence has been discovered since trial; (2) the movant alleges facts from which the court can infer diligence on his part; (3) the evidence cannot be merely cumulative or impeaching; (4) the evidence is material to the issues in the case; (5) it must be shown that the newly discovered evidence would probably produce an acquittal at a new trial.

The district court noted that the discrepancy in the account numbers was newly discovered, and found that "it frankly was the exercise of truly extraordinary diligence by [substitute defense counsel] in coming into this case that generated what really is newly discovered evidence." The evidence also fulfilled the other three requirements -- it probably would lead a jury to acquit Cimera on at least some of the counts, it was material to the issues, and it was not merely cumulative or impeaching.

On appeal, the Third Circuit disagreed. Cimera had failed to identify newly discovered evidence, and even if he had, he did not satisfy the first two prongs of the five-prong test. While the digits themselves were considered evidence, the significance or relevance of the discrepancy in the digits was not. The court noted that several other circuits have reached the same conclusion. When evidence is in the possession of the defendant before trial, the defendant's realization of the relevance of that evidence does not make it newly discovered. In addition, in this case, Cimera presented no evidence to show that he and his trial counsel were unaware of the discrepancy in the account numbers at trial. Even if he had done so, the court concluded that he could have discovered the discrepancy by exercising reasonable diligence.

Aggravated felony - forgery sentence less than a year qualifies where loss exceeded $10,000

Lawful permanent resident was convicted of forging a check in the amount of greater than $10,000 and sentenced to four months imprisonment. In removal proceedings, the Immigration Judge and BIA found him removable as an aggravated felon, and he appealed. The definition of aggravated felony, 18 U.S.C. § 1101(a)(43), contains two provisions that appear to be in conflict as they apply to the case. Subsection (M)(i) states that an offense "that involves fraud or deceit in which the loss to the victim exceeds $10,000" is an aggravated felony, whereas subsection (R) states that "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one year" is an aggravated felony. The alien argued that the provision relating specifically to forgery should apply to him.
The Third Circuit rejected the alien’s argument and determined that he was an aggravated felon. Bobb v. Attorney General, No. 05-2891, 2006 WL 2193065 (3d Cir. Aug. 3, 2006). While it found the alien’s statutory construction argument "inviting," it concluded that Congress intended that both provisions be given broad reach. Reasoning that someone can commit an offense "related to forgery" without necessarily intending to defraud or deceive, the Court concluded that giving both provisions broad reach did not render either provision surplusage. The Court also rejected the alien’s argument that his was a "hybrid" offense (which would require all requirements of both provisions to be met), because the hybrid offense analysis applies only where the specific provision (in this case forgery) is a lesser included offense of the broader category (offense involving fraud or deceit).