In US v. Ricks, Nos. 05-4832, 4833 (3d Cir. 7/20/07), the Circuit followed its prior decision in US v. Gunter, 462 F.3d 237 (3d Cir. 2006), in ruling that although a district court can consider the 100:1 crack/powder differential in the guidelines and find the differential is "too vast," it may not categorically reject the ratio and substitute its own. Instead, in varying from the guideline range for crack cocaine, the court must give reasons for why the ratio is too harsh "when applied to the defendant." In doing so, the district court may draw on the reports of the Sentencing Commission finding that the 100:1 ratio treats crack offenses too severely.
On its surface, the Ricks decision may seem very straightforward: The district court judge found that the 100:1 ratio was too severe, based on the reports of the Sentencing Commission, and it sentenced instead based on the 20:1 ratio that the Sentencing Commission recommended. The 3rd Circuit then decided Gunter, holding that district courts can consider the crack/powder differential and the Sentencing Commission reports, but cannot substitute their own ratio. The district court here, in light of Gunter, thus erred mainly by expressly relying on the 20:1 ratio and not explaining its sentence in terms of case-specific factors.
But the Ricks decision, in reaching its holding, contains a number of statements that may strike some as inconsistent. On the one hand, the Circuit rules that the district court may not disagree with the 100:1 ratio as a "policy matter," but on the other hand, it rules that district courts may "view the sentencing disparity [based on this ratio] as too vast," based on the findings of the Sentencing Commission. The Circuit further states, "Indeed, as a matter of policy, we agree with the District Court that a 100-to-1 ratio leads to unjust sentences,..." but then indicates that only Congress can address this policy. This may leave district courts and counsel confused. What exactly counts as "policy" and what counts as a "case specific reason"?
The Circuit's reasoning, moreover, appears inconsistent with a case just decided by the Supreme Court -- US v. Rita, 2007 WL 1772146 (6/21/07) (see blog here). Rita, in ruling that at the district court level there is no presumption of reasonableness for a guidelines sentence, states that the district court can choose to sentence outside the range "because the Guideline sentence itself fails properly to reflect section 3553(a) considerations." Rita at *9. In a similar vein, Rita, suggests a district court may agree with arguments that the "Guidelines reflect an unsound judgment, or for example, that they do not generally treat certain defendant characteristics in the proper way." Rita at *12. These certainly sound like "policy" considerations.
Rita thus strongly suggests that the district courts, in independently considering the 3553(a) factors, may disagree with the policies on which the Guidelines are based. Nothing in Rita limits the district court to consideration of "case specific factors" and nothing suggests that the policies on which the Guidelines are based are sacrosanct. Indeed, treating the policies underlying the Guidelines as sacrosanct would make the Guidelines no longer truly "advisory." This would recreate the 6th Amendment problems that Booker supposedly resolved.
Hopefully these issues will be cleared up when the Supreme Court decides Kimbrough next term, which will address sentences below the Guidelines for crack cocaine. (See Prof. Berman's blog discussion here.) In the meantime, the bottom line in light of Ricks and Gunter is that sentences below the range in crack cases can be based on a finding that the 100:1 differential is "too vast," but the district court should not mention any other ratio, and should couch the reasons for the sentence expressly in terms of case-specific factors.
Monday, July 23, 2007
Thursday, July 19, 2007
Illegal re-entry: Date offense commences for GL purposes
In US v. Hernandez-Gonzalez, Nos. 06-1998 & 2130 (3d Cir. 7/19/07), the Circuit held that for purposes of calculating the Guidelines criminal history score, the offense of being an alien "found in" the United States following deportation commences on the date the alien entered the US, not the date he/she was actually found in the US by authorities.
Defendant, an alien from Mexico, was convicted of five minor offenses from 1990 to 1992. In 1994 he was convicted of an aggravated felony, and after serving his sentence he was deported to Mexico in 1998. He then re-entered the US illegally sometime in 1999. He was ultimately "found in" the US by authorities in March, 2005. The district court did not count the five offenses from 1990 to 1992 in the criminal history score because they were all more than 10 years prior to his being found in the US in 2005. The government appealed, arguing that for Guidelines criminal history purposes, USSG 4A1.2, the offense should be deemed to have "commenced" when defendant re-entered the US sometime before Jan 1st of 2000.
The Circuit agreed that the offense of being found in the US, for Guidelines purposes, commences when the alien enters the US. The Circuit distinguished two cases the district court relied upon, finding that neither addressed the exact issue presented here. In US v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), the Court held that for purposes of the statute of limitations, being found in the US is not a continuing offense when the alien enters non-surreptitiously through a port of entry. That decision is thus limited to the statute of limitations context where the authorities are aware of the alien's entry. In US v. Lennon, 372 F.3d 535 (3d Cir. 2004), the Court declined to address the issue here, but suggested that the reasoning of DiSantillo does not apply when the alien has entered the country surreptitiously.
The Circuit reversed and remanded for a sentencing hearing to determine the date of the re-entry, because the district court had not made any findings regarding when the last time was that defendant entered the US. The presentence report stated that defendant had visited his parents on at least two occasions following his re-entry in 1999, and if the last of these visits took place later than 2002, the prior convictions would still be outside the 10 year time period. On remand, the district court will thus determine when the most recent re-entry was, and when the "found in" offense commenced for Guidelines purposes.
The Circuit also rejected defendant's cross-appeal arguing for a lower sentence based on disparity with jurisdictions that have a "fast-track" program. Following its decision in US v. Vargas, 477 F.3d 94 (3d Cir. 2007), the Circuit affirmed the district court's refusal to vary from the Guidelines range on disparity grounds.
Defendant, an alien from Mexico, was convicted of five minor offenses from 1990 to 1992. In 1994 he was convicted of an aggravated felony, and after serving his sentence he was deported to Mexico in 1998. He then re-entered the US illegally sometime in 1999. He was ultimately "found in" the US by authorities in March, 2005. The district court did not count the five offenses from 1990 to 1992 in the criminal history score because they were all more than 10 years prior to his being found in the US in 2005. The government appealed, arguing that for Guidelines criminal history purposes, USSG 4A1.2, the offense should be deemed to have "commenced" when defendant re-entered the US sometime before Jan 1st of 2000.
The Circuit agreed that the offense of being found in the US, for Guidelines purposes, commences when the alien enters the US. The Circuit distinguished two cases the district court relied upon, finding that neither addressed the exact issue presented here. In US v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), the Court held that for purposes of the statute of limitations, being found in the US is not a continuing offense when the alien enters non-surreptitiously through a port of entry. That decision is thus limited to the statute of limitations context where the authorities are aware of the alien's entry. In US v. Lennon, 372 F.3d 535 (3d Cir. 2004), the Court declined to address the issue here, but suggested that the reasoning of DiSantillo does not apply when the alien has entered the country surreptitiously.
The Circuit reversed and remanded for a sentencing hearing to determine the date of the re-entry, because the district court had not made any findings regarding when the last time was that defendant entered the US. The presentence report stated that defendant had visited his parents on at least two occasions following his re-entry in 1999, and if the last of these visits took place later than 2002, the prior convictions would still be outside the 10 year time period. On remand, the district court will thus determine when the most recent re-entry was, and when the "found in" offense commenced for Guidelines purposes.
The Circuit also rejected defendant's cross-appeal arguing for a lower sentence based on disparity with jurisdictions that have a "fast-track" program. Following its decision in US v. Vargas, 477 F.3d 94 (3d Cir. 2007), the Circuit affirmed the district court's refusal to vary from the Guidelines range on disparity grounds.
Friday, July 13, 2007
Third Circuit Resubmits Opinion After Panel Rehearing
The Court granted a panel rehearing in United States v. Rivas, (No. 05-3380), blogged on this site on March 20, 2007 (see here). The panel submitted the same opinion (affirming the defendant's conviction on several grounds) following the rehearing.
Wednesday, July 04, 2007
District Court's Reliance on Unsworn Police Report to Impose Sentence 82 Months Longer Than Government's Recommendation Upheld
In United States v. Leekins, No. 05-1658 (3d Cir. June 29, 2007), the Third Circuit affirmed a sentence at the bottom of the guideline range, rejecting the appellant’s arguments that he was improperly sentenced on the basis of judge-found facts and unsworn statements in a police report.
Leekins pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) pursuant to a plea agreement wherein he agreed that he was subject to the armed career criminal sentencing enhancement. The government agreed to recommend imposition of the 15-year mandatory minimum sentence. The district court did not follow the government’s recommendation. At sentencing, the district court adopted the presentence report’s finding that Leekins possessed or used a firearm in connection with a crime of violence—namely, attempted murder. This upward adjustment resulted in a guideline range of 262-327 months, and the district court sentenced Leekins to 262 months.
With little analysis, the Third Circuit cited United States v. Grier, 475 F.3d 556 (3d Cir. 2006)(en banc), and rejected Leekins’s argument that the district court violated his Sixth Amendment right to trial by jury and Fifth Amendment right to due process by sentencing him on the basis of facts that he did not admit and that were not found by a jury. The Court also found the defendant’s sentence to be reasonable. The Court acknowledged that Leekins pleaded guilty with the expectation that he would receive an 180-month sentence, but noted that the plea agreement explicitly advised him of the possible statutory maximum sentence of life imprisonment.
The Court also rejected Leekins’s argument that the district court erroneously considered an unsworn police report for sentencing enhancement purposes. The Court noted that police reports are neither inherently reliable nor inherently unreliable. The relevant inquiry is whether the facts upon which a judge bases a sentence have sufficient indicia of reliability to support their probable accuracy. The Court found that the other evidence presented at the sentencing hearing corroborated the findings in the police report and concluded that the district court’s reliance on the report was reasonable.
Independent Contractors With No Control Over Federal Funds Are "Agents" Under Section 666 and Prosecutors' Vouching Deemed Harmless Error
In United States v. Vitillo, No.05-4330 (3d Cir. June 25, 2007), the Third Circuit affirmed the conviction of John Vitillo and two of his companies on several counts of theft and conspiracy in violation of 18 U.S.C. § 666, which prohibits theft from organizations and government agencies that receive more than $10,000 in federal funds. The Court rejected Vitillo’s argument that he was not an "agent" for purposes of § 666 because he did not have control over the federal funds. It explained that, according to the statutory definition, an "agent" is "merely a person with authority to act on behalf of the organization receiving federal funds," which can include independent contractors.
During the government’s investigation of Vitillo’s billing practices, the two AUSAs who later served as trial counsel accompanied the FBI agents who executed a search warrant at the defendant’s office. These prosecutors were also present during the FBI’s subsequent interrogation of Vitillo. The agent who conducted the interview testified at trial that Vitillo confessed; Vitillo testified to the contrary. During the government’s opening statement and witness examination, the prosecutors made repeated reference to their presence at the FBI raid and the defendant’s interview. The Court expressed concern over this "ill-advised" practice and suggested that the trial counsel either should not have attended the interview or should not have served as trial counsel. It held that the prosecutors’ comments and questions referring to their presence at the defendant’s interview constituted improper vouching because it implied that the prosecutors knew that the agent was testifying truthfully.
The Court also held that under its recent decision in United States v. Harris, 471 F.3d 507 (3d Cir. 2006), it was improper for the prosecutor to explicitly ask Vitillo whether the agent who interviewed him was lying because this type of questioning tends to infringe upon the jury’s exclusive role as the arbiter of credibility. Despite these instances of prosecutorial misconduct, however, the Court concluded that a new trial was not warranted because of the "overwhelming" evidence of the defendants’ guilt.
Finally, the Court held that the district court’s determination of the amount of restitution ($317,760) was supported by a preponderance of the evidence.
During the government’s investigation of Vitillo’s billing practices, the two AUSAs who later served as trial counsel accompanied the FBI agents who executed a search warrant at the defendant’s office. These prosecutors were also present during the FBI’s subsequent interrogation of Vitillo. The agent who conducted the interview testified at trial that Vitillo confessed; Vitillo testified to the contrary. During the government’s opening statement and witness examination, the prosecutors made repeated reference to their presence at the FBI raid and the defendant’s interview. The Court expressed concern over this "ill-advised" practice and suggested that the trial counsel either should not have attended the interview or should not have served as trial counsel. It held that the prosecutors’ comments and questions referring to their presence at the defendant’s interview constituted improper vouching because it implied that the prosecutors knew that the agent was testifying truthfully.
The Court also held that under its recent decision in United States v. Harris, 471 F.3d 507 (3d Cir. 2006), it was improper for the prosecutor to explicitly ask Vitillo whether the agent who interviewed him was lying because this type of questioning tends to infringe upon the jury’s exclusive role as the arbiter of credibility. Despite these instances of prosecutorial misconduct, however, the Court concluded that a new trial was not warranted because of the "overwhelming" evidence of the defendants’ guilt.
Finally, the Court held that the district court’s determination of the amount of restitution ($317,760) was supported by a preponderance of the evidence.
Wednesday, June 27, 2007
Rita's impact in the 3rd Circuit
In Rita v. U.S., 2007 WL 1772146, the Supreme Court ruled that the circuits "may," for purposes of appellate review only, apply a "presumption of reasonableness" to sentences within the Guidelines range. But the Court placed so many limits on this presumption, and went on at such length to stress the discretion district courts have at sentencing, that ultimately Rita is a very good decision that emphasizes that the guidelines are truly "advisory."
The key points from Rita:
1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.
Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion").
2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.
Rita, at *9 ("We repeat that the presumption before us is an appellate presumption. . . . In determining the merits of these [sentencing] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines should apply.")
3) Judges may "disregard" the Guidelines.
Rita, at *10 ("As far as the law is concerned, the judge could disregard the Guidelines . . .").
4) The sentencing court does not as having a subordinate role to the Sentencing Commission, but a co-equal role. Both are charged under the sentencing statute with applying the same § 3553(a) analysis. Given this framework, the sentencing court does not have to defer to the Commission’s judgments, but instead can reach its own judgments.
Rita, at *7 ("The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.").
5) The sentencing court may disagree with and reject policy judgments of the Sentencing Commission and the Guidelines. Nothing the Commission says is sacrosanct.
Rita at *12 (the judge must address arguments that the Guidelines "reflect an unsound judgment, or, for example that they do not generally treat certain defendant characteristics in the proper way").
6) The district courts may consider the factual findings of the Sentencing Commission, which would include their findings regarding unfairness of the crack/powder ratio, and the career offender guidelines.
Rita at *9 (sentencing courts are not "prohibited from taking account of the Sentencing Commission’s factual findings or recommended sentences").
7) There can be no "presumption of unreasonableness" for sentences outside the Guidelines, even at the circuit level.
Rita, at *11 ("The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.")
8) We do not have any presumption of reasonableness in the 3rd Circuit. Rita leaves undisturbed the 3rd Circuit’s rejection of a presumption of reasonableness. Rita only holds that Courts of Appeals "may" apply such a presumption, not that they must.
Rita, at *8 (citing Cooper (3d Cir) with approval).
9) Even in circuits that, unlike the 3rd Circuit, have adopted the presumption, it is a "nonbinding" presumption" that has no "independent legal effect" and only applies on appeal.
Rita, at *6 ("the presumption is nonbinding" and does not "reflect strong judicial deference that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge"); Rita at *8 (presumption does not have "independent legal effect").
10) Rita reaffirms the overarching role played by the "parsimony provision," making clear that in considering all the § 3553(a) factors, the judge must "impose a sentence sufficient, but no greater than necessary, to comply with" the aims of sentencing.
Rita, at *6.
11) Rita calls into question the 3rd Circuit's ruling in Vampire Nation, 451 F.3d 189 (2006). Vampire Nation held that the requirement in Fed R. Crim P. Rule 32(h) of advance notice before a judge departs from the Guidelines range on a basis not identified by the parties applies only to "departures" (pursuant to the Guidelines) and not "variances" (pursuant to 18 USC sect 3553(a)). Rita states that "the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Rita at *9 (citing inter alia Rules 32(h) and Burns, 501 U.S. 129, 136 (recognizing importance of notice)). This concern for adversarial testing applies equally to departures and variances, and thus Rita undercuts the reasoning in Vampire Nation.
The key points from Rita:
1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.
Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion").
2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.
Rita, at *9 ("We repeat that the presumption before us is an appellate presumption. . . . In determining the merits of these [sentencing] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines should apply.")
3) Judges may "disregard" the Guidelines.
Rita, at *10 ("As far as the law is concerned, the judge could disregard the Guidelines . . .").
4) The sentencing court does not as having a subordinate role to the Sentencing Commission, but a co-equal role. Both are charged under the sentencing statute with applying the same § 3553(a) analysis. Given this framework, the sentencing court does not have to defer to the Commission’s judgments, but instead can reach its own judgments.
Rita, at *7 ("The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.").
5) The sentencing court may disagree with and reject policy judgments of the Sentencing Commission and the Guidelines. Nothing the Commission says is sacrosanct.
Rita at *12 (the judge must address arguments that the Guidelines "reflect an unsound judgment, or, for example that they do not generally treat certain defendant characteristics in the proper way").
6) The district courts may consider the factual findings of the Sentencing Commission, which would include their findings regarding unfairness of the crack/powder ratio, and the career offender guidelines.
Rita at *9 (sentencing courts are not "prohibited from taking account of the Sentencing Commission’s factual findings or recommended sentences").
7) There can be no "presumption of unreasonableness" for sentences outside the Guidelines, even at the circuit level.
Rita, at *11 ("The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.")
8) We do not have any presumption of reasonableness in the 3rd Circuit. Rita leaves undisturbed the 3rd Circuit’s rejection of a presumption of reasonableness. Rita only holds that Courts of Appeals "may" apply such a presumption, not that they must.
Rita, at *8 (citing Cooper (3d Cir) with approval).
9) Even in circuits that, unlike the 3rd Circuit, have adopted the presumption, it is a "nonbinding" presumption" that has no "independent legal effect" and only applies on appeal.
Rita, at *6 ("the presumption is nonbinding" and does not "reflect strong judicial deference that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge"); Rita at *8 (presumption does not have "independent legal effect").
10) Rita reaffirms the overarching role played by the "parsimony provision," making clear that in considering all the § 3553(a) factors, the judge must "impose a sentence sufficient, but no greater than necessary, to comply with" the aims of sentencing.
Rita, at *6.
11) Rita calls into question the 3rd Circuit's ruling in Vampire Nation, 451 F.3d 189 (2006). Vampire Nation held that the requirement in Fed R. Crim P. Rule 32(h) of advance notice before a judge departs from the Guidelines range on a basis not identified by the parties applies only to "departures" (pursuant to the Guidelines) and not "variances" (pursuant to 18 USC sect 3553(a)). Rita states that "the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Rita at *9 (citing inter alia Rules 32(h) and Burns, 501 U.S. 129, 136 (recognizing importance of notice)). This concern for adversarial testing applies equally to departures and variances, and thus Rita undercuts the reasoning in Vampire Nation.
Thursday, June 07, 2007
In possession of child pornography case, the Third Circuit rejects certain special conditions of supervised release.
In United States v. Voelker , No. 05-2858, (3d Cir. June 5, 2007), Voelker pled guilty to possessing child pornography in violation of 18 U.S.C. §2252(a)(2). The court imposed a supervised release term of life. On appeal, he challenged three special conditions: (1) The defendant is prohibited from access to any computer equipment or any on-line computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system or any other public or private computer network; (2) The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct as defined at Title 18 of the United States Code, Section 2256(2); and (3) The defendant shall not associate with children under the age of eighteen except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.
The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."
The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).
As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.
Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."
The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."
It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.
The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."
Written by Renee Pietropaolo
The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."
The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).
As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.
Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."
The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."
It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.
The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."
Written by Renee Pietropaolo
Tuesday, June 05, 2007
Habeas Corpus: Plain Error Review When Party Fails to Object to Magistrate’s R & R
In Nara v. Frank, No. 05-4779 (3d Cir. May 8, 2007), the Third Circuit held that “where a party fails to file timely objections to a magistrate judge’s R & R in a habeas proceeding, and the district court adopts the R & R, we will only review the R & R for plain error.”
Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.
After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.
With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.
Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.
After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.
With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.
Wednesday, May 30, 2007
Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement
In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.
McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.
In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.
A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.
The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”
A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”
McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.
In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.
A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.
The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”
A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”
Third Circuit Unpersuaded That a Need to Pay Restitution to Microsoft Justifies a Variance From the Sentencing Guidelines
In United States v. Kononchuk, No. 06-2484, (3d Cir. May 8, 2007), the Third Circuit vacated the defendant’s sentence and remanded for resentencing, finding that the district court’s sentencing variance below the Guidelines was unsupported by a “meaningful consideration” of the §3553(a) factors and failed to address the government’s specific, meritorious concerns and objections raised during sentencing.
For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.
Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.
Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.
The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”
For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.
Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.
Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.
The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”
Friday, May 18, 2007
Sentence Reversed for Ex Post Facto Violation Citing Pre-Booker Precedent
In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.
The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."
The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."
Sunday, May 06, 2007
Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court
In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.
Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.
The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.
Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.
The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.
Monday, April 30, 2007
Court Vacates Shedrick Opinion; Grants Panel Rehearing Sua Sponte
In a April 26, 2007, Order, the Third Circuit vacated its February 28, 2007, precedential opinion in United States v. Shedrick, 478 F.3d 519 (3d Cir. 2007).
In that published opinion (described in detail here), the Court found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.
In that published opinion (described in detail here), the Court found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.
Third Circuit Retains Jurisdiction Even Where Defendant Signs Waiver of Right to Appeal
In United States v. Gwinnett, Case No. 06-1766 (3d Cir. April 26, 2007), the Third Circuit held that it "retains subject matter jurisdiction over the appeal by a defendant who had signed an appellate waiver." It emphasized that it "will not exercise that jurisdiction to review the merits" of an appeal where the defendant "knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice," because waivers of right to appeal are valid and enforceable. The Court then found that Ms. Gwinnett’s waiver of her appellate rights was knowing and voluntary. It consequently declined to exercise its jurisdiction and affirmed the district court's decision.
This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."
This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."
Thursday, April 26, 2007
Feigned Mental Illness is Proper Basis for Sentencing Enhancement for Obstruction of Justice
In United States v. Batista, Case No. 05-2949 (3d Cir. April 25, 2007), the district court applied the two-level enhancement of U.S.S.G. § 3C1.1 to the defendant’s offense level for feigning mental illness in an attempt to avoid trial. The defendant had initially negotiated with the government concerning a guilty plea. That negotiation fell through, and he moved for a evaluation of his competency to stand trial. The defendant underwent five separate competency evaluations. The evaluators decided that he was malingering, and the district court found him competent to stand trial. He subsequently pleaded guilty. At sentencing, the government moved for, and the district court granted, the sentencing enhancement for obstruction of justice.
The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."
The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."
3C Rules On Document Sealing And Attorney Speech Rule
In US v. Wecht (decided April 12, 2007), the Third Circuit addressed three applications arising during the prosecution of the Allegheny County coroner (Wecht). The trial on the 84-count indictment, alleging that Wecht had used his public office for private financial gain, was stayed pending the Circuit’s resolution of the applications, which were:
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.
Friday, April 20, 2007
Crawford does not prevent introduction of hearsay evidence at sentencing
In United States v. Robinson, Appeal No. 05-5330 (3d Cir. 3/5/07, published 4/16/07), the Third Circuit fell in line with every other Circuit to consider the issue when it ruled that the United States Supreme Court's recent confrontation clause decision in Crawford v. Washington, 541 U.S. 36 (2004), provides no basis for reversing prior Supreme Court precedent expressly allowing the introduction of hearsay evidence in the sentencing context.
Monday, April 09, 2007
120-month bank robbery sentence held reasonable for ailing defendant
The Third Circuit has upheld as reasonable a 120-month sentence in a bank robbery case in which the defendant has suffered from AIDS since the early 1980s. The defendant in United States v. Watson, No. 05-3892 (3d Cir. Apr. 5, 2007) faced a Guidelines range of 151-188 months, and the district court varied downward on account of the defendant's health, which had deteriorated during his pre-trial detention due to improper management of his medication by prison officials.
The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.
The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.
The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.
The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.
Wednesday, April 04, 2007
Third Circuit rejects challenge to shoeprint expert testimony, affirms application of CO provision and 460-month sentence for bank robbery
In United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007), the Third Circuit rejected a challenge to the admission of testimony of the government’s expert witness, where Ford argued that the expert opinion failed to meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The expert was permitted to testify that Ford’s shoes were the kind that could have made the footprints left on the bank counter at one of the robberies with which he was charged. Ford argued that the testimony should be excluded because the opinion was no more precise than that the shoe impressions at the bank and those made by the shoes he was wearing when apprehended were "similar." However, the Court ultimately reasoned that an expert opinion expressing the possibility that a crime shoe impression may have been made by shoes worn by the defendant, to the extent it meets the reliability and relevancy thresholds in Daubert, is "clearly relevant" to the question of whether defendant was present at the scene of the crime, and thus determined that the district court did not abuse its discretion in admitting this testimony.
The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.
The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.
Friday, March 30, 2007
United States v. Vargas - Fast-Track Disparity Case - Denied Rehearing
The Third Circuit has denied rehearing in United States v. Vargas, where the Court rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. (panel opinion here) In a concurring opinion, Judge Ambro elaborated on the “limited scope” of the Court’s panel opinion, its two holdings and how it is consistent with United States v. Gunter. First, Vargas held that “a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Although Gunter held that a court errs when it believes it has no discretion to consider an infirmity in the guidelines, it did not establish a rule that the court must consider it. Sentencing courts may, however, do so if “they are persuaded that the Guidelines do not sufficiently effect the goals of sentencing.” Second, Vargas held that a sentencing court “may not, in the fast-track context, rely on § 3553(a)(6)’s reference to ‘unwarranted sentence disparities’ to justify a sentence that varies from the advisory Guidelines range.” This does not preclude other factors - - such as ‘the history and characteristics of the defendant’ - - from serving as a basis for variance in the fast-track context. For example, an individual defendant may enter an early plea and waive various procedural rights, considerations permissible in Gunter’s third step.
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Third Circuit Finds Defendant Was Not Seized Where He Briefly Paused and Raised Hands Before FleeingIn United States v. Amos , ---F. 4th---, 2023 WL 8636910 (3d Cir. Dec. 14, 2023), the Third Circuit affirmed a district court's denial o...
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District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown , No. 08-1221, vacating ...
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In United States v. Fish , No. 12-3109 (3d Cir. 10/1/2013), the Third Circuit considered the application of U.S.S.G. §2S1....