Sentence Affirmed:
In United States v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008), defendant was convicted of two counts of wire fraud. At sentencing, the district court granted a variance from the recommended Sentencing Guidelines range of 18 to 24 months’ imprisonment and sentenced him to two years’ probation (including three months’ home confinement). In imposing sentence the district court stated that such a sentence best served the considerations of § 3553(a) and articulated numerous reasons: (1) Howe “led an honorable and lawful life until this point” and had no prior criminal history; (2) Howe “served in the U.S. Military for 20 years”; (3) Howe was a “well-regarded member of [his] community”; (4) Howe “regularly attend[s] church”; (5) Howe was a “devoted husband, father, and son”; (6) Howe made but an “isolated mistake” in committing his crime; and (7) Howe was remorseful at sentencing.
The government appealed. In affirming, the Circuit rejected the government’s claims of procedural error, first that the district court made erroneous findings as to the offense being an “isolated mistake” and that the defendant was remorseful - - refusing to parse the words of the district court or the defendant in such a way as to twist the district court’s intention or overrule it’s first-hand observations. The Court likewise found no procedural error in the brief mention given to general deterrence at sentencing where the government barely mentioned the subject and did not strenuously object on such grounds.
Next, the Court rejected the government’s claim that the sentence was a substantively unreasonable application of the factors on which the district court relied, noting that substantive review requires “taking into account the totality of the circumstances”and the long list of reasons given by the district court. The Court also specifically rejected the government’s argument that, in terms of a variance for acceptance, a sentencing allocution could not overcome the fact that Howe had gone to trial and recognized military service as a valid consideration.
Sentence Reversed:
In United States v. Levinson, No. 07-1544 (3d Cir. Sept. 18, 2008), defendant pleaded guilty to one count of wire fraud and one count of filing a false income tax return. At sentencing, the district court granted a variance from the recommended Sentencing Guidelines range of 24 to 30 months of imprisonment and sentenced him to two concurrent 24-month terms of probation. In doing so, the district court considered the § 3553(a) factors. Although the court did not find any characteristics which distinguished Levinson from other criminals, it did, however, determine that Levinson's case could be distinguished from other cases involving white-collar crime because his victim was not the public at large but was instead a private business entity that had already settled its civil lawsuit against Levinson. The court went on to consider the “propriety of putting into jail at a substantial cost to the public a nonviolent offender who poses little or no threat to the public and whose crimes had little impact beyond his business partners and his family”. Finally the court concluded that probation was more appropriate.
The government appealed, arguing that the district court failed to adequately explain the chosen sentence. The Third Circuit agreed and vacated Levinson’s sentence. The Circuit held first, the court clearly erred in finding that defendant had inflicted no financial harm on the public when there was a tax fraud conviction involving a specific dollar loss to the United States Treasury, and second, the court failed to provide adequate explanation for varying downward from a sentencing guidelines range of 24 to 30 months.
The Court found that a more complete explanation of the decision to significantly vary from the recommended sentence of imprisonment was required in that first, after stating that Levinson did not differ from other defendants, the court failed to explain a basis that would warrant such a variance. Second, if there is no real distinction between the defendant and other white-collar defendants, and the district court rested its decision on a policy disagreement with the Guidelines, - - noting the court’s comments about cost, public and private harm, and consideration of general penal policy - - the court must explain why the general policy should not apply in the particular case before it. While acknowledging that “policy considerations are not off-limits in sentencing,” the Circuit expressed some reluctance and concern that the district court had not accounted for “very deliberate policy choices embedded in the Guidelines”.
Tuesday, September 23, 2008
District Court's errors in admitting hearsay statement as present sense impression and defendant’s un-Mirandized admissions were not harmless.
Defendant Artega Green was convicted by a jury of one count of distribution of crack cocaine, in violation of 21 U.S.C. § 841. The evidence offered by the Government at trial consisted of: (1) the testimony of two DEA agents; (2) an audio recording in which the CI called a cell phone number "associated with" Green and ordered 3 ounces of crack; and (3) a video in which the CI allegedly engaged in a drug transaction with Green. The video was of poor quality and only briefly depicted the profile of the alleged perpetrator.
Admission of CI’s Statement: The crux of the Government’s case was proving that Green was the individual captured on its audio and video evidence. It sought to do this exclusively through the testimony of the DEA agents. The CI testified as the sole defense witness and stated that Green was not the person depicted in the video. The CI also testified that the DEA agents used him before in an attempt to catch Green on video selling drugs, but that those attempts were unsuccessful and the agents were upset at the CI as a result. After the CI was excused, the Government called one of its DEA agents as a rebuttal witness and, through the agent, offered a statement that the CI purportedly made some 50 minutes following the controlled buy in question attesting that it was Green who sold him the drugs. The district court admitted the statement as a present-sense impression under Fed.R.Evid. 801(1).
On appeal, the Third Circuit, in United States v. Green, 06-2468 (3d Cir. Sept. 2, 2008), concluded that the district court erred in admitting the CI’s statement as a present-sense impression. The Court was troubled by the length of time that passed between the event and the statement, noting that it was unaware of any legal authority standing for the proposition that a 50 minute delay between the event and the statement was substantially contemporaneous. Even assuming that the 50-minute interval did not render the statement inadequately contemporaneous, however, the statement was made after the CI had been questioned by federal agents about the details of the transaction, thus disqualifying it as a present-sense impression. Further, the Court found that the error was not harmless because the evidence against Green outside of the CI’s statement was not overwhelming and the CI himself had testified, contrary to the agents, that the individual shown on the videotape was not Green.
Admission of un-Mirandized Statement: The Third Circuit also concluded that the district court erred by admitting Green’s un-Mirandized nonverbal reactions to the videotape. When DEA agents arrested Green, they told Green he was being arrested for an active state court warrant. Only after Green was transported to DEA offices was he informed of the true nature of the arrest, i.e., his indictment on a federal drug charge. Then, after holding Green in a cell for a brief period, the agents took Green into an interrogation room and showed him the video surveillance. Upon seeing the video, Green widened his eyes, asked for the video to be replayed, and then hung his head and sighed. Only after eliciting Green’s reaction to the video did the agents give Green his Miranda warnings and begin express questioning. Green subsequently waived his rights and confessed. At a suppression hearing, the agents admitted that they intentionally refrained from advising Green of his Miranda rights prior to showing him the video in order to lessen the likelihood that Green would request an attorney.
On appeal, the Third Circuit ruled that the district court erred in admitting Green’s both Green’s pre-Miranda testimonial non-verbal responses to the video and his post-Miranda confession. The Court found that there was no intervening lapse of time between the warned and unwarned interrogations, all questioning occurred at the same location with essentially the same interrogators, and the focus and questions in the respective interrogation sessions were identical. The Court also ruled that the error in admitting the statements was not harmless because the admissions were a central part of the Government’s case at trial and the other evidence in the case was not overwhelming.
Accordingly, based on the errors, the Third Circuit vacated Green’s conviction and remanded for a new trial.
Admission of CI’s Statement: The crux of the Government’s case was proving that Green was the individual captured on its audio and video evidence. It sought to do this exclusively through the testimony of the DEA agents. The CI testified as the sole defense witness and stated that Green was not the person depicted in the video. The CI also testified that the DEA agents used him before in an attempt to catch Green on video selling drugs, but that those attempts were unsuccessful and the agents were upset at the CI as a result. After the CI was excused, the Government called one of its DEA agents as a rebuttal witness and, through the agent, offered a statement that the CI purportedly made some 50 minutes following the controlled buy in question attesting that it was Green who sold him the drugs. The district court admitted the statement as a present-sense impression under Fed.R.Evid. 801(1).
On appeal, the Third Circuit, in United States v. Green, 06-2468 (3d Cir. Sept. 2, 2008), concluded that the district court erred in admitting the CI’s statement as a present-sense impression. The Court was troubled by the length of time that passed between the event and the statement, noting that it was unaware of any legal authority standing for the proposition that a 50 minute delay between the event and the statement was substantially contemporaneous. Even assuming that the 50-minute interval did not render the statement inadequately contemporaneous, however, the statement was made after the CI had been questioned by federal agents about the details of the transaction, thus disqualifying it as a present-sense impression. Further, the Court found that the error was not harmless because the evidence against Green outside of the CI’s statement was not overwhelming and the CI himself had testified, contrary to the agents, that the individual shown on the videotape was not Green.
Admission of un-Mirandized Statement: The Third Circuit also concluded that the district court erred by admitting Green’s un-Mirandized nonverbal reactions to the videotape. When DEA agents arrested Green, they told Green he was being arrested for an active state court warrant. Only after Green was transported to DEA offices was he informed of the true nature of the arrest, i.e., his indictment on a federal drug charge. Then, after holding Green in a cell for a brief period, the agents took Green into an interrogation room and showed him the video surveillance. Upon seeing the video, Green widened his eyes, asked for the video to be replayed, and then hung his head and sighed. Only after eliciting Green’s reaction to the video did the agents give Green his Miranda warnings and begin express questioning. Green subsequently waived his rights and confessed. At a suppression hearing, the agents admitted that they intentionally refrained from advising Green of his Miranda rights prior to showing him the video in order to lessen the likelihood that Green would request an attorney.
On appeal, the Third Circuit ruled that the district court erred in admitting Green’s both Green’s pre-Miranda testimonial non-verbal responses to the video and his post-Miranda confession. The Court found that there was no intervening lapse of time between the warned and unwarned interrogations, all questioning occurred at the same location with essentially the same interrogators, and the focus and questions in the respective interrogation sessions were identical. The Court also ruled that the error in admitting the statements was not harmless because the admissions were a central part of the Government’s case at trial and the other evidence in the case was not overwhelming.
Accordingly, based on the errors, the Third Circuit vacated Green’s conviction and remanded for a new trial.
Thursday, August 21, 2008
THIRD CIRCUIT FINDS 18 U.S.C. § 48 UNCONSTITUTIONAL.
Robert J. Stevens was convicted of violating 18 U.S.C. § 48, a statute which prohibited the creation, possession or sale of depictions of animal cruelty with the intent to place the depiction in interstate commerce for profit. In United States v. Stevens, No. 05-2497, the Third Circuit, sitting en banc, ruled 18 U.S.C. § 48 unconstitutional under the First Amendment. Stevens had initially moved to have his indictment dismissed on the premise that 18 U.S.C. § 48 was an infringement on his right to free speech, but his motion was rejected and he was ultimately convicted by a jury and sentenced to 37 months imprisonment. On appeal, the circuit court overturned Stevens’ conviction. Stevens’ initial case was the first prosecution under this statute and similarly his appeal was the first constitutional review of the statute.
In ruling that 18 U.S.C. § 48 was unconstitutional, the Third Circuit found that depictions of animal cruelty did not fit into any of the existing categories of unprotected speech and declined to expand the types of speech not protected by the First Amendment. To reach this decision, the court looked closely at the Supreme Court’s decision in United States v Ferber, 458 U.S. 747 (1982), in which the Court ruled that child pornography, showing real children, was not protected speech. Specifically, the Third Circuit emphasized that the federal government did not have a compelling interest in prohibiting depictions of animal cruelty. Although the Government argued that the federal government had an interest in preventing animal cruelty, the Third Circuit found this argument problematic because 18 U.S.C. § 48 did not regulate or criminalize the act of animal cruelty, but only depictions of cruelty. The circuit court also noted that the Supreme Court had shown reluctance to find a compelling government interest in protecting animals when First Amendment rights were at stake. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In short, a compelling interest that may justify a content-based restriction, such as the one contained in 18 U.S.C. § 48, has always been related to the protection of humans, such as the well-being of minors in Ferber, not animals.
Additionally, applying the other Ferber factors, the Third Circuit found no evidence that animals in videos or pictures continued to suffer because they appeared in images portraying cruelty, or any evidence to suggest that stopping depictions of animal cruelty would decrease actual incidents of cruelty such as illegal dog fights. Also, although the law contained exceptions for depictions that have religious, political, scientific, educational, journalistic, historical or artistic value, these exceptions were insufficient to make the statute and its broad prohibition constitutional.
Since the speech restricted in 18 U.S.C. § 48 was in fact protected speech, the statute was therefore required to survive review under strict scrutiny. Having already determined that the statute did not serve a compelling government interest, and finding that the law was not narrowly tailored to achieve such an interest, the Third Circuit ruled the statute was an unconstitutional infringement on Stevens’ right to free speech and accordingly vacated his conviction.
Three members of the circuit court dissented from the majority opinion.
In ruling that 18 U.S.C. § 48 was unconstitutional, the Third Circuit found that depictions of animal cruelty did not fit into any of the existing categories of unprotected speech and declined to expand the types of speech not protected by the First Amendment. To reach this decision, the court looked closely at the Supreme Court’s decision in United States v Ferber, 458 U.S. 747 (1982), in which the Court ruled that child pornography, showing real children, was not protected speech. Specifically, the Third Circuit emphasized that the federal government did not have a compelling interest in prohibiting depictions of animal cruelty. Although the Government argued that the federal government had an interest in preventing animal cruelty, the Third Circuit found this argument problematic because 18 U.S.C. § 48 did not regulate or criminalize the act of animal cruelty, but only depictions of cruelty. The circuit court also noted that the Supreme Court had shown reluctance to find a compelling government interest in protecting animals when First Amendment rights were at stake. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In short, a compelling interest that may justify a content-based restriction, such as the one contained in 18 U.S.C. § 48, has always been related to the protection of humans, such as the well-being of minors in Ferber, not animals.
Additionally, applying the other Ferber factors, the Third Circuit found no evidence that animals in videos or pictures continued to suffer because they appeared in images portraying cruelty, or any evidence to suggest that stopping depictions of animal cruelty would decrease actual incidents of cruelty such as illegal dog fights. Also, although the law contained exceptions for depictions that have religious, political, scientific, educational, journalistic, historical or artistic value, these exceptions were insufficient to make the statute and its broad prohibition constitutional.
Since the speech restricted in 18 U.S.C. § 48 was in fact protected speech, the statute was therefore required to survive review under strict scrutiny. Having already determined that the statute did not serve a compelling government interest, and finding that the law was not narrowly tailored to achieve such an interest, the Third Circuit ruled the statute was an unconstitutional infringement on Stevens’ right to free speech and accordingly vacated his conviction.
Three members of the circuit court dissented from the majority opinion.
Wednesday, July 23, 2008
Court Rejects Habeas Petition Challenging Parole Commission’s Procedures
[This case summarized by Ahmed Soliman, legal intern, Eastern District of Pennsylvania.]
In Christopher Furnari v. U.S. Parole Commission, No. 07-2853 (3rd Cir. July 9, 2008), the Third Circuit Court of Appeals considered, and ultimately affirmed, an appeal of the lower court’s rejection of a habeas corpus petition for Christopher Furnari, a consigleire of the Lucchese crime family who complained that, in denying him parole five separate times, the Parole Commission mis-applied the law.
Furnari argued that (1) the Parole Commission violated the Sentencing Reform Act, 18 U.S.C. § 235(b)(3), when it scheduled a rehearing date after the Commission’s authority expired; (2) that the denial of parole was based on an improperly-calculated offense severity rating; and (3) that the Commission failed to give adequate weight to certain mitigating information.
The Court denied the Sentencing Reform Act challenge, holding that because Congress extended the life of the Parole Commission, the hearing was properly held on the date set. The Court also noted that, by statute, a release date may be set at a future time. So long as Congress continues to extend the expiration date, so too may the release date be tolled for future hearings.
The Court also held that the offense severity challenge was an abuse of the writ. Furnari had repeatedly litigated the Parole Commissions’s calculation of his offense severity rating, and the resultant parole denials. On this successive writ, the Court emphasized that the burden shifts to Furnari to demonstrate a "colorable showing of factual innocence" of the crimes for which he was convicted. Furnari’s claims related to his innocence of uncharged murders and other violent conduct, which is insufficient to establish that the Court should entertain the petition in the interests of justice.
Finally, the Court held that it would not interfere with the Commission’s discretion to evaluate mitigating evidence and determine what weight it deserves. With respect to Furnari’s sentence proportionality argument, the Court further held that the Parole Commission lacked statutory authority to review the sentence imposed by the sentencing court.
In Christopher Furnari v. U.S. Parole Commission, No. 07-2853 (3rd Cir. July 9, 2008), the Third Circuit Court of Appeals considered, and ultimately affirmed, an appeal of the lower court’s rejection of a habeas corpus petition for Christopher Furnari, a consigleire of the Lucchese crime family who complained that, in denying him parole five separate times, the Parole Commission mis-applied the law.
Furnari argued that (1) the Parole Commission violated the Sentencing Reform Act, 18 U.S.C. § 235(b)(3), when it scheduled a rehearing date after the Commission’s authority expired; (2) that the denial of parole was based on an improperly-calculated offense severity rating; and (3) that the Commission failed to give adequate weight to certain mitigating information.
The Court denied the Sentencing Reform Act challenge, holding that because Congress extended the life of the Parole Commission, the hearing was properly held on the date set. The Court also noted that, by statute, a release date may be set at a future time. So long as Congress continues to extend the expiration date, so too may the release date be tolled for future hearings.
The Court also held that the offense severity challenge was an abuse of the writ. Furnari had repeatedly litigated the Parole Commissions’s calculation of his offense severity rating, and the resultant parole denials. On this successive writ, the Court emphasized that the burden shifts to Furnari to demonstrate a "colorable showing of factual innocence" of the crimes for which he was convicted. Furnari’s claims related to his innocence of uncharged murders and other violent conduct, which is insufficient to establish that the Court should entertain the petition in the interests of justice.
Finally, the Court held that it would not interfere with the Commission’s discretion to evaluate mitigating evidence and determine what weight it deserves. With respect to Furnari’s sentence proportionality argument, the Court further held that the Parole Commission lacked statutory authority to review the sentence imposed by the sentencing court.
Friday, July 18, 2008
Immigration judge abused discretion when motion for continuance was denied as a result of delay caused by Department of Homeland Security
[This case summarized by Ahmed Soliman, legal intern, Federal & Community Defender for the Eastern District of Pennsylvania.]
In United States v. Hashmi, No. 06-3934, (3rd Cir. July 7, 2008), the court addressed whether an immigration judge abused his discretion after denying a continuance, agreed to by the government, simply because the case was pending for a period of time longer than the 18 months suggested by the "case completion goals" set by the Department of Justice, despite the fact that the Department of Homeland Security was the cause of the case’s delay, and not the defendant.
The court ruled that the immigration judge did indeed abuse his discretion, stating that the case completion goals were merely a guide, not a rule that should trump consideration of the individual circumstances of each case. In the case of Hashmi, the court found that the circumstances causing a delay in the case proceedings were "absurd" since one division of the Department of Homeland Security was withholding the document that would move forward the Hashmi case being tried by another division of the Department of Homeland Security.
Hashmi is a native of Pakistan and came to the United States on a tourist visa, which expired after six months. However, Hashmi remained in the United States and eventually married an American citizen who filed I-130 petition for her new husband. Although petition, as it was filled out, showed no prior wife, Hashmi submitted the divorce decree for his prior marriage during the I-130 application process and denied any intent to conceal his prior marriage.
Hashmi was served on July 30, 2003 with a Notice to Appear for overstaying his visa (an allegation Hashmi admitted to, but also requested an adjustment of status due to his pending I-130 petition). It was the division of the Department of Homeland Security in charge of Hashmi’s I-130 petition that sent out the divorce decree to be authenticated, and sent another portion of Hashmi’s file to the government attorney in charge of Hashmi’s removal from the United States (the same attorney who failed to return the file, which held up Hashmi’s I-130 petition). Without the completed petition, Hashmi could not move forward with his removal trial.
The Judge overseeing the removal proceedings eventually ruled that the delays in moving forward with the proceedings went beyond the period of time suggested by the case completion goals, and therefore ordered Hashmi removed from the country.
As further logic for their holding, the court pointed out the fact that to rule otherwise would set a poor precedent, a precedent that would encourage the Department of Homeland Security to commit a similar "catch 22" in the future, against people who have a legitimate petition to remain in this country.
In United States v. Hashmi, No. 06-3934, (3rd Cir. July 7, 2008), the court addressed whether an immigration judge abused his discretion after denying a continuance, agreed to by the government, simply because the case was pending for a period of time longer than the 18 months suggested by the "case completion goals" set by the Department of Justice, despite the fact that the Department of Homeland Security was the cause of the case’s delay, and not the defendant.
The court ruled that the immigration judge did indeed abuse his discretion, stating that the case completion goals were merely a guide, not a rule that should trump consideration of the individual circumstances of each case. In the case of Hashmi, the court found that the circumstances causing a delay in the case proceedings were "absurd" since one division of the Department of Homeland Security was withholding the document that would move forward the Hashmi case being tried by another division of the Department of Homeland Security.
Hashmi is a native of Pakistan and came to the United States on a tourist visa, which expired after six months. However, Hashmi remained in the United States and eventually married an American citizen who filed I-130 petition for her new husband. Although petition, as it was filled out, showed no prior wife, Hashmi submitted the divorce decree for his prior marriage during the I-130 application process and denied any intent to conceal his prior marriage.
Hashmi was served on July 30, 2003 with a Notice to Appear for overstaying his visa (an allegation Hashmi admitted to, but also requested an adjustment of status due to his pending I-130 petition). It was the division of the Department of Homeland Security in charge of Hashmi’s I-130 petition that sent out the divorce decree to be authenticated, and sent another portion of Hashmi’s file to the government attorney in charge of Hashmi’s removal from the United States (the same attorney who failed to return the file, which held up Hashmi’s I-130 petition). Without the completed petition, Hashmi could not move forward with his removal trial.
The Judge overseeing the removal proceedings eventually ruled that the delays in moving forward with the proceedings went beyond the period of time suggested by the case completion goals, and therefore ordered Hashmi removed from the country.
As further logic for their holding, the court pointed out the fact that to rule otherwise would set a poor precedent, a precedent that would encourage the Department of Homeland Security to commit a similar "catch 22" in the future, against people who have a legitimate petition to remain in this country.
Thursday, June 26, 2008
Government's Use of Defendant's Former Lawyer as Confidential Informant Not "Outrageous"
In United States v. Hoffecker, No. 06-3190, (3d Cir. June 16, 2008), the Third Circuit issued a 103- page opinion primarily to address two issues: Did the District Court err in admitting the testimony of defendant’s former attorney and (2) was the prosecution time-barred?
Hoffecker and a co-defendant set up an investment company located in the Bahamas purportedly to sell commodities. The opinion details the elaborate telemarketing investment scam.
The Government employed Jack Field, Hoffecker’s one-time lawyer and friend, as an informant. Hoffecker argued this was so outrageous that it violated Due Process.
The opinion explains at length that the two had been out of contact for 3 years. When they met again, Field clearly and repeatedly stated he would not act as lawyer in this new deal and that he no longer practiced law. There was no retainer, and no legal fees were charged. During the course of the investigation, the Government, which was aware of the potential attorney-client relationship problem, instructed Field to advise Hoffecker clearly and repeatedly that he was not serving as legal counsel. Investigators ensured that Field’s prior legal work would not be implicated by not inquiring about any previous privileged communications between Field and Hoffecker and by instructing Field not to divulge any such communications. Further, the Government employed a "taint team" to review all of the recorded conversations between Field and Hoffecker.
The Court rejected the Due Process claim, noting "Surely there is a delicious irony in the circumstance that . . . the Government conned the con man. . . . To call the evidence supporting Hoffecker’s claim "thin" would be generous as "microscopic" would be the more appropriate word.
The Court next reached the statute of limitations issue, which it viewed as the most potentially precedentially significant matter. Although the Court deemed the statute of limitations issue waived because the defendant failed to raise it in the lower court, it alternatively rejected it on its merits.
The statute of limitations requires that indictments for mail fraud and for conspiracy to commit mail and wire fraud must be "found" within five years of the commission of the offenses. "An indictment is found when it is returned by a grand jury and filed." The statute begins to run for mail fraud when a defendant "places, deposits, causes to be deposited, takes, or receives mail, or knowingly causes mail to be delivered, as part of the execution of a scheme to defraud," and for conspiracy when the conspirators commit the last overt act in furtherance of the conspiracy.
In play here was another statute - 18 U.S.C. § 3292 - which provides, a district court before which a grand jury is impaneled shall suspend the running of the statute of limitations upon application of the government "filed before return of an indictment, indicating that evidence of an offense is in a foreign country," "if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. . . ."
Because the Government applied to suspend the statute of limitations before it received all of the evidence from the Bahamas, the Third Circuit ruled that it would not dismiss on statute of limitations grounds even if Hoffecker had preserved the issue for appeal. The Court also observes that it is irrelevant whether the Government receives any additional materials after it makes its request.
Additionally, appellant argued that the Government’s suspension application was improper because it was filed after the statute of limitations already had expired. The Court deemed this issue waived because it was not raised in the opening brief. A 28(J) letter is not sufficient to preserve an issue for appellate review when the issue was not included in the opening brief.
Hoffecker also maintained (1) Count One’s conspiracy charge was untimely because the indictment was found more than five years after the final overt act of the conspiracy and (2) the ex parte nature of the Government’s § 3292 tolling application was improper.
The Government maintained these claims were waived because, although Hoffecker raised them before the District Court by motion in the first trial and also raised them in his opening brief on appeal, he did not renew them in the District Court before the second trial.
The Court rejected this waiver argument, distinguishing a motion to dismiss indictment on statute of limitations grounds from a motion to dismiss based on evidentiary grounds. Requiring Hoffecker to reraise those issues before the retrial would have been "an exercise in wasteful formality."
Next, the Court rejected Hoffecker’s contention that the Government’s section 3292 suspension application was improper because the proceeding before the grand jury judge who granted the suspension order was ex parte. First, the statute itself does not provide that the party whose statute of limitation is being suspended is entitled to notice or a hearing. To interpret section 3292 to require notice or a hearing for a defendant "would be to ignore the traditionally
non-adversarial and secret nature of grand jury investigations." Further, to impose a notice requirement would undermine the confidentiality of a grand jury’s inquiry and give a potential defendant the opportunity to flee or destroy evidence.
After addressing the remaining eight issues, the court affirmed the judgment.
Hoffecker and a co-defendant set up an investment company located in the Bahamas purportedly to sell commodities. The opinion details the elaborate telemarketing investment scam.
The Government employed Jack Field, Hoffecker’s one-time lawyer and friend, as an informant. Hoffecker argued this was so outrageous that it violated Due Process.
The opinion explains at length that the two had been out of contact for 3 years. When they met again, Field clearly and repeatedly stated he would not act as lawyer in this new deal and that he no longer practiced law. There was no retainer, and no legal fees were charged. During the course of the investigation, the Government, which was aware of the potential attorney-client relationship problem, instructed Field to advise Hoffecker clearly and repeatedly that he was not serving as legal counsel. Investigators ensured that Field’s prior legal work would not be implicated by not inquiring about any previous privileged communications between Field and Hoffecker and by instructing Field not to divulge any such communications. Further, the Government employed a "taint team" to review all of the recorded conversations between Field and Hoffecker.
The Court rejected the Due Process claim, noting "Surely there is a delicious irony in the circumstance that . . . the Government conned the con man. . . . To call the evidence supporting Hoffecker’s claim "thin" would be generous as "microscopic" would be the more appropriate word.
The Court next reached the statute of limitations issue, which it viewed as the most potentially precedentially significant matter. Although the Court deemed the statute of limitations issue waived because the defendant failed to raise it in the lower court, it alternatively rejected it on its merits.
The statute of limitations requires that indictments for mail fraud and for conspiracy to commit mail and wire fraud must be "found" within five years of the commission of the offenses. "An indictment is found when it is returned by a grand jury and filed." The statute begins to run for mail fraud when a defendant "places, deposits, causes to be deposited, takes, or receives mail, or knowingly causes mail to be delivered, as part of the execution of a scheme to defraud," and for conspiracy when the conspirators commit the last overt act in furtherance of the conspiracy.
In play here was another statute - 18 U.S.C. § 3292 - which provides, a district court before which a grand jury is impaneled shall suspend the running of the statute of limitations upon application of the government "filed before return of an indictment, indicating that evidence of an offense is in a foreign country," "if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. . . ."
Because the Government applied to suspend the statute of limitations before it received all of the evidence from the Bahamas, the Third Circuit ruled that it would not dismiss on statute of limitations grounds even if Hoffecker had preserved the issue for appeal. The Court also observes that it is irrelevant whether the Government receives any additional materials after it makes its request.
Additionally, appellant argued that the Government’s suspension application was improper because it was filed after the statute of limitations already had expired. The Court deemed this issue waived because it was not raised in the opening brief. A 28(J) letter is not sufficient to preserve an issue for appellate review when the issue was not included in the opening brief.
Hoffecker also maintained (1) Count One’s conspiracy charge was untimely because the indictment was found more than five years after the final overt act of the conspiracy and (2) the ex parte nature of the Government’s § 3292 tolling application was improper.
The Government maintained these claims were waived because, although Hoffecker raised them before the District Court by motion in the first trial and also raised them in his opening brief on appeal, he did not renew them in the District Court before the second trial.
The Court rejected this waiver argument, distinguishing a motion to dismiss indictment on statute of limitations grounds from a motion to dismiss based on evidentiary grounds. Requiring Hoffecker to reraise those issues before the retrial would have been "an exercise in wasteful formality."
Next, the Court rejected Hoffecker’s contention that the Government’s section 3292 suspension application was improper because the proceeding before the grand jury judge who granted the suspension order was ex parte. First, the statute itself does not provide that the party whose statute of limitation is being suspended is entitled to notice or a hearing. To interpret section 3292 to require notice or a hearing for a defendant "would be to ignore the traditionally
non-adversarial and secret nature of grand jury investigations." Further, to impose a notice requirement would undermine the confidentiality of a grand jury’s inquiry and give a potential defendant the opportunity to flee or destroy evidence.
After addressing the remaining eight issues, the court affirmed the judgment.
Unpaid Taxes Found to Be “Proceeds” of Mail Fraud
In United States v. Yusef, No. 07-3308, (3d Cir. June 17, 2008), the Third Circuit considered a narrow issue: Whether unpaid taxes, which were unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, are "proceeds" of mail fraud for purposes of sufficiently stating a money laundering offense under the federal, international money laundering statute, 18 U.S.C. § 1956(a)(2).
This was a government appeal from a pretrial order dismissing from the indictment various counts and allegations based on international money laundering.
The relevant statute requires businesses to file monthly reporting of gross receipts and to pay a 4% tax on those receipts. The mails were used for filing and payments.
The defendants here would collect the daily sales receipts, count the cash, and deposit, report and pay taxes only on a portion of the cash. From 1996 to 2001, tens of millions of dollars in cash was withheld in this manner.
The District Court found that the unpaid taxes cannot be considered "proceeds" of mail fraud because such tax savings (1) represented a percentage of unreported gross receipts that had been procured through lawful activity (the day to day business of the Supermarket) and, thus, could not be categorized as "proceeds" from an unlawful activity; and (2) were merely retained, rather than obtained.
After noting that the federal money laundering statute does not define "proceeds", the Third Circuit held "simply because funds are originally procured through lawful activity does not mean that one cannot thereafter convert those same funds into the "proceeds" of an unlawful activity." Following Supreme Court precedent and its own prior decision, the Court held "that unpaid taxes, which are unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, constitute ‘proceeds’ of mail fraud for purposes of supporting a charge of federal money laundering."
The Court also considered whether "use of the mails" was "in furtherance of the scheme." Here, "[t]he use of the mail to file fraudulent tax returns and fail to pay all taxes owed was not only incident to an essential part of the scheme, but also was clearly an essential part of the scheme because such mailings were the defendants’ way of concealing the scheme itself by making the fraudulently reported gross receipts seem legitimate."
This was a government appeal from a pretrial order dismissing from the indictment various counts and allegations based on international money laundering.
The relevant statute requires businesses to file monthly reporting of gross receipts and to pay a 4% tax on those receipts. The mails were used for filing and payments.
The defendants here would collect the daily sales receipts, count the cash, and deposit, report and pay taxes only on a portion of the cash. From 1996 to 2001, tens of millions of dollars in cash was withheld in this manner.
The District Court found that the unpaid taxes cannot be considered "proceeds" of mail fraud because such tax savings (1) represented a percentage of unreported gross receipts that had been procured through lawful activity (the day to day business of the Supermarket) and, thus, could not be categorized as "proceeds" from an unlawful activity; and (2) were merely retained, rather than obtained.
After noting that the federal money laundering statute does not define "proceeds", the Third Circuit held "simply because funds are originally procured through lawful activity does not mean that one cannot thereafter convert those same funds into the "proceeds" of an unlawful activity." Following Supreme Court precedent and its own prior decision, the Court held "that unpaid taxes, which are unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, constitute ‘proceeds’ of mail fraud for purposes of supporting a charge of federal money laundering."
The Court also considered whether "use of the mails" was "in furtherance of the scheme." Here, "[t]he use of the mail to file fraudulent tax returns and fail to pay all taxes owed was not only incident to an essential part of the scheme, but also was clearly an essential part of the scheme because such mailings were the defendants’ way of concealing the scheme itself by making the fraudulently reported gross receipts seem legitimate."
Monday, June 16, 2008
Third Circuit Examines United States v. Gunter In Light of Supeme Court's Sentencing Jurisprudence
In United States v. Gunter, No. 07-1291, (3d Cir. June 9, 2008), the Third Circuit discussed the impact of the Supreme Court's recent sentencing cases on its precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which set forth the following three-step process that district courts must use for sentencing:
(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before United States v. Booker, 543 U.S. 220 (2005).
Facts & Procedural History: Detectives found Gunter in a motel with 72.5 grams of crack and a loaded firearm. Gunter was indicted for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). A jury convicted Gunter on all counts.
Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including the “disparity” created by the longer sentences recommended for offenses involving crack cocaine. The District Court refused to do so, stating that it could not “second guess Congress' ... intent.” The Third Circuit reversed and remanded for resentencing.
On remand, and pursuant to the Third Circuit’s precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the District Court held a second sentencing hearing. The court adopted the Guidelines range from the first sentencing hearing, which included a range of 235 to 293 months' imprisonment for the drug offenses, plus a consecutive 60 months' imprisonment for the 18 U.S.C. § 924(c) offense. This led to a total Guidelines range of 295 to 353 months' imprisonment.
The District Court imposed a below-Guidelines sentence of 283 months' imprisonment. Gunter appealed, arguing that although the District Court recognized correctly that it could not establish a new crack-to-powder ratio for purposes of calculating the Guidelines range under Step 1, the District Court incorrectly concluded that it could not disagree with the Guidelines at Step 3 solely on policy grounds.
Court's Analysis: Pursuant to United States v. Booker, 543 U.S. 220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Third Circuit reviewed Gunter’s sentence for reasonableness. The Court cited United States v. Gall, 128 S.Ct. 586 (2007) and its recent sentencing jurisprudence, which held that the district courts' sentencing decisions are to be reviewed under a deferential abuse of discretion standard. The Court noted the continuing vitality of its decision in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), which should be read in light of Gall, and the district court's broad sentencing discretion.
Turning to its prior Gunter decision (462 F.3d 237), the Court stated that Gall reemphasized the post-Booker sentencing structure set forth in the Court's precedent. After reviewing the entire sentencing transcript, the Court determined that the District Court "was cognizant of and acted consistent with the caselaw of this Circuit and recent rulings of the Supreme Court pertaining to the crack-to-powder ratio."
The Court explained:
(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before United States v. Booker, 543 U.S. 220 (2005).
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account the Circuit's pre-Booker case law, which continues to have advisory force; and
(3) Finally, courts are required to exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.
Facts & Procedural History: Detectives found Gunter in a motel with 72.5 grams of crack and a loaded firearm. Gunter was indicted for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). A jury convicted Gunter on all counts.
Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including the “disparity” created by the longer sentences recommended for offenses involving crack cocaine. The District Court refused to do so, stating that it could not “second guess Congress' ... intent.” The Third Circuit reversed and remanded for resentencing.
On remand, and pursuant to the Third Circuit’s precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the District Court held a second sentencing hearing. The court adopted the Guidelines range from the first sentencing hearing, which included a range of 235 to 293 months' imprisonment for the drug offenses, plus a consecutive 60 months' imprisonment for the 18 U.S.C. § 924(c) offense. This led to a total Guidelines range of 295 to 353 months' imprisonment.
The District Court imposed a below-Guidelines sentence of 283 months' imprisonment. Gunter appealed, arguing that although the District Court recognized correctly that it could not establish a new crack-to-powder ratio for purposes of calculating the Guidelines range under Step 1, the District Court incorrectly concluded that it could not disagree with the Guidelines at Step 3 solely on policy grounds.
Court's Analysis: Pursuant to United States v. Booker, 543 U.S. 220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Third Circuit reviewed Gunter’s sentence for reasonableness. The Court cited United States v. Gall, 128 S.Ct. 586 (2007) and its recent sentencing jurisprudence, which held that the district courts' sentencing decisions are to be reviewed under a deferential abuse of discretion standard. The Court noted the continuing vitality of its decision in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), which should be read in light of Gall, and the district court's broad sentencing discretion.
Turning to its prior Gunter decision (462 F.3d 237), the Court stated that Gall reemphasized the post-Booker sentencing structure set forth in the Court's precedent. After reviewing the entire sentencing transcript, the Court determined that the District Court "was cognizant of and acted consistent with the caselaw of this Circuit and recent rulings of the Supreme Court pertaining to the crack-to-powder ratio."
The Court explained:
The Court noted that Ricks was followed by the Supreme Court's decision in Kimbrough v. United States, 128 S.Ct. 558 (2007), which stated that it would not be an abuse of discretion for district courts to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)'s purposes. Stating that Kimbrough's language was consistent with the Court's own statements in Ricks and Gunter: the Court stated:Once Steps 1 and 2 of the sentencing process are completed, Gunter allows district courts to consider the crack-to-powder ratio along with the 3553(a) factors at Step 3 when sentencing defendants, noting that “the District Court erred under Booker in treating the crack/powder cocaine sentencing differential ... as mandatory.” Gunter, 462 F.3d at 248-49. Nevertheless, Gunter prohibits categorical rejection of the 100:1 ratio. Id. at 249 (“[W]e do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.”). On the surface, these two principles appear to conflict somewhat.
This Court used its decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to clear up any confusion in the Gunter holding . . . [D]istrict courts should first calculate the correct Guidelines range and rule on any departure motions. . . . This obviously means that a correct Guidelines sentence must be made using the applicable Guidelines crack-to-powder ratio. Failure to properly calculate the Guidelines is a procedural error that requires remand unless the error is harmless. Ricks further explained that at Step 3, the district court cannot categorically disagree with the crack-to-powder sentencing disparity; rather, the district court may consider the disparity, but only in reference to individual, case-specific factors under 18 U.S.C. §
3553(a). The Court stated: ‘In short, a district court may, at step three, view the sentencing disparity as too vast. However, it must do so as applied to the particular defendant that appears before the court.’
Simply put, a district court may not employ a “rubber stamp” approach that categorically rejects the crack/powder disparity without an individualized assessment of the § 3553(a) factors and the facts of a particular case. Such an approach would be tantamount to the district court setting its own crack/powder ratio, which Gunter and Ricks forbid. Nevertheless, even in an ordinary case, the district court may determine that the crack/powder ratio yields a sentence that is greater than necessary after giving proper consideration to the § 3553(a) factors and the circumstances of the particular case. The district court would then be free to disagree with the policy underlying the crack/powder ratio as applied to that particular defendant and make an appropriate downward variance in its sentence. The difference between what a court may do and may not do goes beyond mere words. There must be meaningful consideration of the § 3553(a) factors and the particular circumstances of the case before a
variance is made.
The Third Circuit concluded that the District Court carefully considered all of the relevant § 3553(a) factors and made a variance below the Guidelines range, noting in particular Appellant's “efforts at reducing the chances of recidivism and increasing the chances for successful supervised release.” The below-Guidelines variance further illustrates the District Court's understanding of the advisory nature of the Guidelines. Because the District Court complied with the controlling case law of this Circuit and the Supreme Court, the Court affirmed the overall length of the District Court's sentence.
The Court, however, vacated Gunter's sentence on Count 5, because the District Court's concurrent sentence of 223 months on Count 5, which charged a violation of 18 U.S.C. § 922(g), exceeded the statutory maximum of 10 years. On remand, the District Court must reduce Gunter's sentence to no more than 120 months. This change does not affect the overall sentence of 283 months.
Monday, June 09, 2008
Third Circuit clarifies appellate procedure and substantive sentencing rules (including an issue of first impression) in favor of defendants
In United States v. Miller, No. 06-5187 (3d Cir. June 2, 2008), Miller had been found guilty at trial of receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) & 2252A(a)(5)(B), respectively. The District Court entered guilty verdicts on both counts, and sentenced Miller to concurrent 46-month prison terms. In calculating the advisory Sentencing Guidelines range, the District Court found that Miller had committed perjury during trial based on testimony about his adult pornography collection, and therefore applied a two-level enhancement for obstruction of justice.
On appeal, the Third Circuit vacated the District Court’s judgment and remanded for re-sentencing. Although the Court, in a 2-1 decision, found that the trial evidence was sufficient to uphold Miller’s conviction for receiving pornography, the Court unanimously accepted Miller’s argument that the Double Jeopardy Clause barred convictions for both receiving and possessing the same images (Miller did not challenge the possession conviction), and thus the District Court’s entry of guilty verdicts on both counts was plain error . Further, the Court ruled that the trial record did not support a finding of perjury, and therefore the two-level obstruction of justice enhancement was improper.
Addressing first Miller’s sufficiency-of-the-evidence argument, the Court, as a threshold matter, rejected the Government’s argument that Miller waived a sufficiency-of-the-evidence claim on appeal because he did not raise the issue during trial via a motion under Fed. R. Crim. P. 29(a), but rather, filed a timely post-trial motion for acquittal under Rule 29(c). The Court held that the language of Rule 29(c) makes clear that a court of appeals has authority "to exercise plenary review over a claim raised in a [timely] Rule 29(c) motion without regard to whether the claim was earlier raised in a Rule 29(a) motion."
The Court then turned to Miller’s argument that while there may have been sufficient evidence to support a conviction for possessing child pornography, that evidence was insufficient to support a conviction for receiving, and to conclude otherwise, Miller argued, would "extinguish the distinction between the offense of knowing receipt and the offense of knowing possession." The Court agreed that a conviction for receiving child pornography "must be supported by a greater quantum of evidence than that minimally required to prove guilt of possessing child pornography," noting that "a person may come to knowingly possess a computer file without ever knowingly receiving it" and thus "while a person who ‘knowingly receives’ child pornography will necessarily ‘knowingly possess’ child pornography, the obverse is not the case." But having concluded that Miller raised a "colorable" sufficiency-of-the -evidence issue for appeal on the receiving count, the Court concluded that "considering all of the evidence in its totality," even though "there certainly is evidence that Miller did not receive the images knowingly a reasonable juror could look to contrary evidence and conclude otherwise."
The Court next addressed Miller’s argument – not raised in the District Court, and thus reviewed for plain error – that the District Court’s entry of separate convictions for receiving and possessing child pornography violated the Double Jeopardy Clause because § 2252A(a)(5)(B) punishes a lesser included offense of that punished by § 2252A(a)(2). Though observing that this issue was one of first impression in this Circuit, the Court stated that the law was clear as a general matter that possession of a contraband item is a lesser-included offense of receipt of the item, citing Ball v. United States, 470 U.S. 856 (1985). Ruling that Ball controlled, the Court held that § 2252A(a)(5)(B) is a lesser included offense of § 2252A(a)(2), and that entry of separate convictions for the same offense contravenes the Double Jeopardy Clause – and that such error met the standards for plain error review.
In so ruling, the Court rejected the Government’s argument that § 2252A(a)(2) and § 2252A(a)(5)(B) punish separate offenses because § 2252A(d) provides an affirmative offense to a defendant who possessed less than three images of child pornography and either promptly took reasonable steps to destroy them or reported the matter to law enforcement. The Government argued that this potentially available affirmative defense constitutes an additional "element" of § 2252A(a)(5)(B) for double jeopardy purposes. The Court held, however, that the possibility that a defendant could assert an affirmative defense under § 2252A(a)(5)(B) was "immaterial to whether the two offenses are the same under the same-elements test" of Blockburger v. United States, 284 U.S. 299, 304 (1932). Under the same-elements test, affirmative defenses are not to be considered in comparing the charged offenses – the elements to be considered are only "those that must necessarily be proved to establish the commission of a charged offense."
Finally, the Court addressed Miller’s argument that the District Court erred in finding that he committed perjury during trial in his testimony about the nature of his adult pornography collection. Miller argued that the District Court erroneously concluded that he gave willfully false testimony on a material matter when he testified at trial – in response to the question "[d]id you have [adult] sadomasochistic pictures?" — "[n]ot that I’m aware of, no."
As an initial matter, the Court found that there was no basis to find – as a sentencing enhancement for perjury would require – that Miller was both aware that he possessed the asserted "sadomasochistic" images, and that he considered those particular images to be "sadomasochistic." The Court rejected the District Court’s inference that Miller was aware that he possessed those adult images simply because they were found on the same zip disk containing the images of child pornography, which the jury found that he knowingly possessed. The Court held that the jury’s verdict of knowing possession of some illegal images on the zip disk was "not, of itself, sufficient to support a finding that Miller willfully gave false testimony . . . . the perjury of the defendant must . . . be clearly established, and supported by evidence other than the jury’s having disbelieved him."
Further, the Court found that Miller’s response could not be found to be willfully false because the Government’s question was insufficiently precise, in two respects. First, the Government did not lay a proper foundation for the question "Did you have sadomasochistic pictures?" The Government was referring to five specific image files, but never established at trial– through Miller, any other witness, or a proffer of the images themselves – that Miller knew what images the Government was referring to. The Court reasoned that "[w]ithout such a foundation, there is no basis for concluding that Miller was aware of which assertedly ‘sadomasochistic pictures’ the prosecutor might have had in mind."
Second, the Court found that even if Miller had been aware that he possessed those particular five images, the Government’s questioning failed to establish that Miller’s testimony was willfully false when he denied possession of "sadomasochistic" pictures. The Court found that because the Government did not clarify that Miller understood the meaning of the term "sadomasochistic" – which the Court found to be "both contested and context-dependent" – the Government provided no basis for the Court to conclude that Miller was aware that he possessed pictures that he believed to be "sadomasochistic."
Finally, the Court held that the District Court erred in finding that Miller’s allegedly false testimony concerned a matter that was "material." The District Court found that testimony about images of adult sadomasochism were material to Miller’s offense because possession of such images "may well reflect interests in more deviant sexual practices." The Court of Appeals rejected that conclusion, holding – in line with decisions in the Second and Fifth Circuits – that "a defendant’s interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count."
Circuit Judge Rendell filed a separate opinion concurring in part and dissenting in part. Judge Rendell agreed with the majority that knowing possession of child pornography is a lesser-included offense of knowing receipt, and that the perjury enhancement was improperly applied.
But Judge Rendell disagreed with the majority on the sufficiency-of-evidence issue, concluding that the trial evidence was insufficient to support a verdict that Miller knowingly received 11 images of child pornography included in computer files that totaled more than 1200 images. Judge Rendell noted that the record included "no non-speculative evidence that would tend to show, let alone prove beyond a reasonable doubt, that Miller received the 11 images . . . knowing that they were child pornography." Judge Rendell reasoned that "[g]iven the amazing capabilities of technology to trace and find, backtrack and connect, so as to prove the source and path of computer-generated and -transmitted data, the sheer inability of the Government to posit a non-speculative explanation as to how these images came to be [in Miller’s possession], let alone prove they were "knowingly received" by Miller is, to me, striking."
On appeal, the Third Circuit vacated the District Court’s judgment and remanded for re-sentencing. Although the Court, in a 2-1 decision, found that the trial evidence was sufficient to uphold Miller’s conviction for receiving pornography, the Court unanimously accepted Miller’s argument that the Double Jeopardy Clause barred convictions for both receiving and possessing the same images (Miller did not challenge the possession conviction), and thus the District Court’s entry of guilty verdicts on both counts was plain error . Further, the Court ruled that the trial record did not support a finding of perjury, and therefore the two-level obstruction of justice enhancement was improper.
Addressing first Miller’s sufficiency-of-the-evidence argument, the Court, as a threshold matter, rejected the Government’s argument that Miller waived a sufficiency-of-the-evidence claim on appeal because he did not raise the issue during trial via a motion under Fed. R. Crim. P. 29(a), but rather, filed a timely post-trial motion for acquittal under Rule 29(c). The Court held that the language of Rule 29(c) makes clear that a court of appeals has authority "to exercise plenary review over a claim raised in a [timely] Rule 29(c) motion without regard to whether the claim was earlier raised in a Rule 29(a) motion."
The Court then turned to Miller’s argument that while there may have been sufficient evidence to support a conviction for possessing child pornography, that evidence was insufficient to support a conviction for receiving, and to conclude otherwise, Miller argued, would "extinguish the distinction between the offense of knowing receipt and the offense of knowing possession." The Court agreed that a conviction for receiving child pornography "must be supported by a greater quantum of evidence than that minimally required to prove guilt of possessing child pornography," noting that "a person may come to knowingly possess a computer file without ever knowingly receiving it" and thus "while a person who ‘knowingly receives’ child pornography will necessarily ‘knowingly possess’ child pornography, the obverse is not the case." But having concluded that Miller raised a "colorable" sufficiency-of-the -evidence issue for appeal on the receiving count, the Court concluded that "considering all of the evidence in its totality," even though "there certainly is evidence that Miller did not receive the images knowingly a reasonable juror could look to contrary evidence and conclude otherwise."
The Court next addressed Miller’s argument – not raised in the District Court, and thus reviewed for plain error – that the District Court’s entry of separate convictions for receiving and possessing child pornography violated the Double Jeopardy Clause because § 2252A(a)(5)(B) punishes a lesser included offense of that punished by § 2252A(a)(2). Though observing that this issue was one of first impression in this Circuit, the Court stated that the law was clear as a general matter that possession of a contraband item is a lesser-included offense of receipt of the item, citing Ball v. United States, 470 U.S. 856 (1985). Ruling that Ball controlled, the Court held that § 2252A(a)(5)(B) is a lesser included offense of § 2252A(a)(2), and that entry of separate convictions for the same offense contravenes the Double Jeopardy Clause – and that such error met the standards for plain error review.
In so ruling, the Court rejected the Government’s argument that § 2252A(a)(2) and § 2252A(a)(5)(B) punish separate offenses because § 2252A(d) provides an affirmative offense to a defendant who possessed less than three images of child pornography and either promptly took reasonable steps to destroy them or reported the matter to law enforcement. The Government argued that this potentially available affirmative defense constitutes an additional "element" of § 2252A(a)(5)(B) for double jeopardy purposes. The Court held, however, that the possibility that a defendant could assert an affirmative defense under § 2252A(a)(5)(B) was "immaterial to whether the two offenses are the same under the same-elements test" of Blockburger v. United States, 284 U.S. 299, 304 (1932). Under the same-elements test, affirmative defenses are not to be considered in comparing the charged offenses – the elements to be considered are only "those that must necessarily be proved to establish the commission of a charged offense."
Finally, the Court addressed Miller’s argument that the District Court erred in finding that he committed perjury during trial in his testimony about the nature of his adult pornography collection. Miller argued that the District Court erroneously concluded that he gave willfully false testimony on a material matter when he testified at trial – in response to the question "[d]id you have [adult] sadomasochistic pictures?" — "[n]ot that I’m aware of, no."
As an initial matter, the Court found that there was no basis to find – as a sentencing enhancement for perjury would require – that Miller was both aware that he possessed the asserted "sadomasochistic" images, and that he considered those particular images to be "sadomasochistic." The Court rejected the District Court’s inference that Miller was aware that he possessed those adult images simply because they were found on the same zip disk containing the images of child pornography, which the jury found that he knowingly possessed. The Court held that the jury’s verdict of knowing possession of some illegal images on the zip disk was "not, of itself, sufficient to support a finding that Miller willfully gave false testimony . . . . the perjury of the defendant must . . . be clearly established, and supported by evidence other than the jury’s having disbelieved him."
Further, the Court found that Miller’s response could not be found to be willfully false because the Government’s question was insufficiently precise, in two respects. First, the Government did not lay a proper foundation for the question "Did you have sadomasochistic pictures?" The Government was referring to five specific image files, but never established at trial– through Miller, any other witness, or a proffer of the images themselves – that Miller knew what images the Government was referring to. The Court reasoned that "[w]ithout such a foundation, there is no basis for concluding that Miller was aware of which assertedly ‘sadomasochistic pictures’ the prosecutor might have had in mind."
Second, the Court found that even if Miller had been aware that he possessed those particular five images, the Government’s questioning failed to establish that Miller’s testimony was willfully false when he denied possession of "sadomasochistic" pictures. The Court found that because the Government did not clarify that Miller understood the meaning of the term "sadomasochistic" – which the Court found to be "both contested and context-dependent" – the Government provided no basis for the Court to conclude that Miller was aware that he possessed pictures that he believed to be "sadomasochistic."
Finally, the Court held that the District Court erred in finding that Miller’s allegedly false testimony concerned a matter that was "material." The District Court found that testimony about images of adult sadomasochism were material to Miller’s offense because possession of such images "may well reflect interests in more deviant sexual practices." The Court of Appeals rejected that conclusion, holding – in line with decisions in the Second and Fifth Circuits – that "a defendant’s interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count."
Circuit Judge Rendell filed a separate opinion concurring in part and dissenting in part. Judge Rendell agreed with the majority that knowing possession of child pornography is a lesser-included offense of knowing receipt, and that the perjury enhancement was improperly applied.
But Judge Rendell disagreed with the majority on the sufficiency-of-evidence issue, concluding that the trial evidence was insufficient to support a verdict that Miller knowingly received 11 images of child pornography included in computer files that totaled more than 1200 images. Judge Rendell noted that the record included "no non-speculative evidence that would tend to show, let alone prove beyond a reasonable doubt, that Miller received the 11 images . . . knowing that they were child pornography." Judge Rendell reasoned that "[g]iven the amazing capabilities of technology to trace and find, backtrack and connect, so as to prove the source and path of computer-generated and -transmitted data, the sheer inability of the Government to posit a non-speculative explanation as to how these images came to be [in Miller’s possession], let alone prove they were "knowingly received" by Miller is, to me, striking."
Customs and Border Protection Officer's Haboring Conviction Reversed While Bribery Conviction Upheld
In United States v. Ozcelik, No. 06-4245 (3d Cir. May 27, 2008), the Court of Appeals decided, as a matter of first impression, what constitutes "shielding, harboring, and concealing an alien within the meaning of 8 U.S.C. § 1324. The defendant, Ozcelik, a naturalized US citizen originally from Turkey, was a Customs and Border Protection Officer in the Department of Homeland Security. A Turkish student whose visa expired was put into contact with Ozcelik by a mutual acquaintance and told that Ozcelik could help him remain in the United States. Ozcelik advised Tuncer that Ozcelik had contacts with the then INS and that for $2,300 something could be done "from the inside" that would extend his visa. Tuncer began cooperating with the Government and participated in recorded telephone conversations with Ozcelik regarding the resolution of his immigration problems in exchange for $2,300. A controlled meeting was also arranged where Tuncer gave the money to Ozcelik along with his immigration papers. During their several conversations, Ozcelik advised Tuncer that he needed to keep a low profile and not to "get involved in anything" for 3-5 months in order to avoid detection. He also counseled Tuncer that it was a good thing to be living at an address different from his legal address. As a result, Ozcelik was indicted and, after a jury trial, was convicted of seeking and accepting a bribe in violation of 18 U.S.C. § 201(b)(2) and attempting to conceal, harbor and shield from detection an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).
On appeal, Ozcelik challenged the sufficiency of the evidence on both counts of conviction. While the Court of Appeals upheld the bribery conviction, it found, as a matter of first impression, that merely counseling an alien to maintain a low profile and live at a different address did not constitute "shielding, harboring, and concealing" within the meaning of § 1324(a)(1)(A)(iii) which states, in part: "Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation . . . shall be punished . . . ."
The Court of Appeals summarized the precise conduct that gave rise to the conviction was as follows: During their March 24 meeting, Ozcelik stated to Tuncer, "You are not going to get involved in anything for 3-5 months in order to keep your status. Go to your work and come back home in silence, cook your food, do that only." Ozcelik continued, "The most important thing is for you to not get involved in anything here, to not get involved in any activity." App. at 989. In a similar vein, Ozcelik said to Tuncer, "That’s why I’m telling you to stay away from everything for 4-5 months. Stay away from everything. Are you going to your job? Go, then come back home." Ozcelik also commented that "it is a good thing that you’ve changed your address. I mean your legal address is different. You are living with a friend here. Disappear, don’t tell anyone what address you’re staying at." Later, he said, "Stay away. Stay away from everything for 5-6 months. . . . Especially the address thing is very important." Ozcelik stated, "[A]s I said before stay low key for 5-6 months, because you do not have any rights." In a later recorded telephone conversation, Ozcelik said to Tuncer, "I told you, don’t do anything, I mean don’t go left and right a lot."
Summarizing appellate authority on the issue, the Court recognized that activity short of sheltering an alien violates the statute. For example, in United States v. Rubio-Gonzalez, 674 F.2d 1076 (5th Cir. 1982), the Fifth Circuit upheld a conviction where the defendant warned aliens at a work site of the presence of an INS agent conducting an investigation. While the Court in Ozcelik agreed "that the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent Government authorities from detecting the alien’s unlawful presence, Ozcelik’s counsel did not. The Court concluded: "we view Ozcelik’s comments as general advice to, in effect, keep a low profile and not do anything illegal. Ozcelik suggested that Tuncer stay out of trouble. Telling an illegal alien to stay out of trouble does not tend substantially to facilitate the alien remaining in the country; rather, it simply states an obvious proposition that anyone would know or could easily ascertain from almost any source." Accordingly, the § 1324 conviction was reversed.
Ozcelik also challenged the sufficiency of the evidence on his bribery conviction under 18 U.S.C. § 201(b)(2) which prohibits a public official from seeking or accepting anything of value in exchange for "(A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person." The elements of the offense are that: "(1) defendant must be a public official, (2) who directly or indirectly demanded, sought, received, accepted, or agreed to receive or accept anything of value personally or for any other person or entity, and (3) did so specifically for one of the three corrupt purposes set forth in subsections (A) through (C)." The Court determined that there was no dispute that Ozcelik was a public official and that he took money from Tuncer, the issues were whether he took the money with corrupt intent and whether there was sufficient evidence that Ozcelik had taken "official action" as a result of the bribe. The Court of Appeals framed the issue as whether Ozcelik aided and abetted other unnamed INS officials to alter Tuncer’s records. The Government conceded that the only evidence that Ozcelik had done so were his own statements to Tuncer that he had friends in the INS who would alter Tuncer’s records. Recognizing that the crime of bribery is committed when the official agrees to perform the act, and that completion of the act is not necessary, the Court found that the crime had been completed when Ozcelik’s friend at INS had agreed to alter Tuncer’s status. Passing on the sufficiency of the evidence, the Court concluded; "Indeed, the only evidence the Government produced at trial that the unnamed friend at INS existed was Ozcelik’s own statements to that effect. But we are not permitted to assess credibility. And as such, we cannot say as a matter of law that no reasonable juror could accept the Government’s theory premised upon Ozcelik’s own statements." Accordingly, the bribery conviction was affirmed.
Wednesday, May 21, 2008
Possession charge effectively covered “mere presence” issue; Prosecutor asking why officers would risk careers was not improper vouching.
U.S. v. Weatherly, No. 07-1019, 2008 WL 850005, (3d Cir., Mar.31, 2008)(published May 13, 2008). Weatherly was charged with being a felon in possession of a firearm. It was alleged that the gun was found on Weatherly as he was being arrested on another matter. At trial, Weatherly contested the issue of possession, arguing that the officers found the firearm in the alley nearby, assumed it was his, and lied about where it was actually found. Counsel pointed out discrepancies in the officers’testimony and offered evidence that it was common to find abandoned guns in the alley where he was arrested. He also offered witnesses who testified that Weatherly was not carrying a gun while in their presence earlier that day.
In closing argument, Weatherly conceded that he was only contesting the issue of whether he “possessed” the gun, and argued that his guilt hinged upon the credibility of the officers. In rebuttal, the government argued that Weatherly failed to show any reasons why the officers would lie and asked “Why would Officer Ryel and Detective Medina risk their 32-34 years of experience on the police force over this case?”
Weatherly submitted a proposed “mere presence” jury instruction to explain the legal justification for his defense theory: “Mere presence in the area of any contraband, including a firearm, or awareness of its location is not sufficient to establish possession.” The judge refused the instruction, finding it was not relevant. The court gave, in part, the following possession instruction:
To possess means to have something within your control. This does not necessarily mean that you must hold it physically, that is to have actual possession of it. As long as the firearm is within your control, you would possess it. Knowingly is defined as knowledge, voluntarily and intentionally, and not because of mistake or accident or other innocent reason. . . .Now, to
possess means to have it within the person's control. That does not mean, and I said earlier, it doesn't have to be held physically. It doesn't even have to be on the person. But in this case, the proofs and the allegations are that the defendant had it on his person [and] had actual possession of it. In other words, you can be in possession of a weapon in your car and you can be 25-50
feet from the car. But that's not this case. That's all I'm saying. This case, the allegation is that the defendant had possession of it, actual possession on his person.
The jury returned a guilty verdict. On appeal, Weatherly argued that the possession instruction failed to instruct that the defendant had to “intend to exercise dominion and control” over the firearm and did not cover his requested “mere presence” instruction. He argued that the jury could have found him guilty even if they believed his defense, because the instruction defined possession to include the situation where the firearm was simply near him or susceptible to his control.
The Circuit found that the district court did not err in refusing the mere presence instruction because the possession instruction substantially covered the issue; the jury could not find that Weatherly knowingly possessed the firearm under the actual jury instructions due simply to his mere presence in the area of any contraband because it required knowledge and control. Moreover, even if the actual jury instructions did not substantially cover Weatherly's proposed mere presence instruction, the court did not err because omission of the “mere presence” instruction did not prejudice Weatherly. At trial, the Government's theory was that Weatherly actually possessed the firearm and the court's jury instructions made it clear that this case was about actual possession, not constructive possession, making the mere presence instruction irrelevant.
Weatherly also argued that the prosecutor improperly vouched for the credibility of the government witnesses when he asked why the officers would risk their careers on his case. The Circuit held that although in some cases such a statement would be improper vouching, in this case they were proper because they were based on evidence in the record (the government asked one of the officers what would be taken into consideration by his superiors in making promotion decisions, part of his answer included disciplinary actions), and the statement was a reasonable response to allegations of perjury by Weatherly's attorney, who argued at closing that the police officers found a gun near the defendant, conspired with each other to lie about the incident, and then proceeded to perjure themselves in court.
In closing argument, Weatherly conceded that he was only contesting the issue of whether he “possessed” the gun, and argued that his guilt hinged upon the credibility of the officers. In rebuttal, the government argued that Weatherly failed to show any reasons why the officers would lie and asked “Why would Officer Ryel and Detective Medina risk their 32-34 years of experience on the police force over this case?”
Weatherly submitted a proposed “mere presence” jury instruction to explain the legal justification for his defense theory: “Mere presence in the area of any contraband, including a firearm, or awareness of its location is not sufficient to establish possession.” The judge refused the instruction, finding it was not relevant. The court gave, in part, the following possession instruction:
To possess means to have something within your control. This does not necessarily mean that you must hold it physically, that is to have actual possession of it. As long as the firearm is within your control, you would possess it. Knowingly is defined as knowledge, voluntarily and intentionally, and not because of mistake or accident or other innocent reason. . . .Now, to
possess means to have it within the person's control. That does not mean, and I said earlier, it doesn't have to be held physically. It doesn't even have to be on the person. But in this case, the proofs and the allegations are that the defendant had it on his person [and] had actual possession of it. In other words, you can be in possession of a weapon in your car and you can be 25-50
feet from the car. But that's not this case. That's all I'm saying. This case, the allegation is that the defendant had possession of it, actual possession on his person.
The jury returned a guilty verdict. On appeal, Weatherly argued that the possession instruction failed to instruct that the defendant had to “intend to exercise dominion and control” over the firearm and did not cover his requested “mere presence” instruction. He argued that the jury could have found him guilty even if they believed his defense, because the instruction defined possession to include the situation where the firearm was simply near him or susceptible to his control.
The Circuit found that the district court did not err in refusing the mere presence instruction because the possession instruction substantially covered the issue; the jury could not find that Weatherly knowingly possessed the firearm under the actual jury instructions due simply to his mere presence in the area of any contraband because it required knowledge and control. Moreover, even if the actual jury instructions did not substantially cover Weatherly's proposed mere presence instruction, the court did not err because omission of the “mere presence” instruction did not prejudice Weatherly. At trial, the Government's theory was that Weatherly actually possessed the firearm and the court's jury instructions made it clear that this case was about actual possession, not constructive possession, making the mere presence instruction irrelevant.
Weatherly also argued that the prosecutor improperly vouched for the credibility of the government witnesses when he asked why the officers would risk their careers on his case. The Circuit held that although in some cases such a statement would be improper vouching, in this case they were proper because they were based on evidence in the record (the government asked one of the officers what would be taken into consideration by his superiors in making promotion decisions, part of his answer included disciplinary actions), and the statement was a reasonable response to allegations of perjury by Weatherly's attorney, who argued at closing that the police officers found a gun near the defendant, conspired with each other to lie about the incident, and then proceeded to perjure themselves in court.
Monday, May 12, 2008
"Related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1, 2007) requires either formal consolidation order or close factual relationship
In United States v. Wood, No. 06-3812 (3d Cir. May 1, 2008), the Third Circuit considered whether the defendant's prior burglary and conspiracy convictions were "related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1 2007 version) where the defendant was sentenced for those offenses on the same day before the same judge. Adopting the approach utilized by other circuits and the district court in this case, the Third Circuit held that the imposition of sentences for multiple offenses at the same time by the same judge does not render the cases "consolidated for sentencing" and, therefore, "related" within the meaning of §4A1.2(a)(2), in the absence of either a formal consolidation order or a close factual relationship between the offenses. Here, the three prior convictions were factually distinct, involved different crimes and separate victims, and occurred on separate dates. The offenses were charged under different docket numbers, no formal consolidation order was ever entered, and the county judge imposed consecutive sentences. Accordingly, the district court did not err by concluding that the defendant's prior offenses were not related.
The Third Circuit also considered whether the amended version of §4A1.2(a)(2) (Nov. 1, 2007) should be applied retroactively. The version of §4A1.2(a)(2) in effect at the time of the defendant's sentencing distinguished between related and unrelated cases, and defined relatedness with respect to similarity in either time, facts, or judicial economy. In contrast, the amended version of §4A1.2(a)(2) contemplates that prior sentences are to be considered as one if the underlying offenses either share the same charging instrument or were sentenced together on the same day. According to the Third Circuit, the amended version, which does not turn on relatedness, but rather on factors that would be obvious from the record, effected a substantive change to the Guidelines which could not be applied retroactively to the defendant's sentence. Accordingly, the Third Circuit affirmed the defendant's sentence.
Circuit Judge Rendell filed a dissenting opinion indicating that she would have found the defendant's prior convictions related under old version of §4A1.2(a)(2).
The Third Circuit also considered whether the amended version of §4A1.2(a)(2) (Nov. 1, 2007) should be applied retroactively. The version of §4A1.2(a)(2) in effect at the time of the defendant's sentencing distinguished between related and unrelated cases, and defined relatedness with respect to similarity in either time, facts, or judicial economy. In contrast, the amended version of §4A1.2(a)(2) contemplates that prior sentences are to be considered as one if the underlying offenses either share the same charging instrument or were sentenced together on the same day. According to the Third Circuit, the amended version, which does not turn on relatedness, but rather on factors that would be obvious from the record, effected a substantive change to the Guidelines which could not be applied retroactively to the defendant's sentence. Accordingly, the Third Circuit affirmed the defendant's sentence.
Circuit Judge Rendell filed a dissenting opinion indicating that she would have found the defendant's prior convictions related under old version of §4A1.2(a)(2).
Wednesday, May 07, 2008
3d Circuit affirms life sentence and holds that § 848(b) sets forth sentencing factors, not a separate crime.
In United States v. Tidwell, No. 02-3139 (3d Cir. Mar. 31, 2008), the Third Circuit held that Congress intended 21 U.S.C. § 848(b) as a sentencing enhancement, not as a separate crime, and thus the life sentence imposed on Tidwell under § 848(b) was constitutional where the factual basis was not charged in the indictment. Tidwell had pleaded guilty to engaging in a criminal enterprise in violation of § 848 ("Continuing criminal enterprise"), which carries a penalty of 20 years to life imprisonment. The indictment, however, did not specifically charge him with violating § 848(b) ("Life imprisonment for engaging in continuing criminal enterprise"), which carries a mandatory life sentence for one who is the leader of the enterprise and either the offense involved 300 times the quantity of drugs described in § 841(b)(1)(B) or the enterprise received more than $10 million in gross receipts over a 12-month period.
The district court sentenced him to life imprisonment under § 848(b), reasoning that § 848(b) sets forth sentencing factors that govern sentences imposed for violating the substantive offense, rather than elements of a separate crime. The Third Circuit agreed. Examining the structure, format, and text of the statute, and four Supreme Court decisions (Almendarez-Torres, Jones, Castillo, and Harris), as well as the legislative history of § 848(b), the Court concluded that Congress intended to define the crime of continuing criminal enterprise in § 848(c), that it set out the applicable penalties for that crime in subsection (a), and that it intended to mandate an enhancement when a defendant commits the offense in the manner set forth in subsection (b). Thus, the Third Circuit affirmed Tidwell’s life sentence as constitutionally imposed, where the factual basis was not charged in the indictment nor proven beyond a reasonable doubt. In addition, the Third Circuit rejected Tidwell’s claim that his plea violated due process, reasoning that he was informed that, absent a government motion seeking a sentencing reduction, his guilty plea subjected him to a mandatory life sentence.
The district court sentenced him to life imprisonment under § 848(b), reasoning that § 848(b) sets forth sentencing factors that govern sentences imposed for violating the substantive offense, rather than elements of a separate crime. The Third Circuit agreed. Examining the structure, format, and text of the statute, and four Supreme Court decisions (Almendarez-Torres, Jones, Castillo, and Harris), as well as the legislative history of § 848(b), the Court concluded that Congress intended to define the crime of continuing criminal enterprise in § 848(c), that it set out the applicable penalties for that crime in subsection (a), and that it intended to mandate an enhancement when a defendant commits the offense in the manner set forth in subsection (b). Thus, the Third Circuit affirmed Tidwell’s life sentence as constitutionally imposed, where the factual basis was not charged in the indictment nor proven beyond a reasonable doubt. In addition, the Third Circuit rejected Tidwell’s claim that his plea violated due process, reasoning that he was informed that, absent a government motion seeking a sentencing reduction, his guilty plea subjected him to a mandatory life sentence.
Thursday, April 10, 2008
In the absence of standardized impoundment procedure, officer may reasonably impound vehicle
United States v. Smith, No. 06-3112 (3d Cir. April 9, 2008)
Lancaster police arrested the driver and passenger of a car stopped in an area "in which parked vehicles were subject to being damaged, vandalized, or stolen." Police could not identify the owner of the vehicle, although they were able to determine that it did not belong to either occupant. Based on these facts, one of the officers decided to impound the vehicle, and during a subsequent inventory search discovered a handgun in the glove compartment. After losing a motion to suppress firearm, the defendant entered a conditional plea to a violation of 18 U.S.C. §§ 922(g) and 924(c).
On appeal, the defendant argued that the decision to impound the car had to "be exercised pursuant to standardized criteria or the seizure is unconstitutional." The defendant further argued that the Lancaster Police Department did not have a standard procedure regarding the impounding of vehicles. Notably, the defendant did not challenge the actual search itself, and the Third circuit thus limited its review to the "validity of the impoundment rather than the validity of the actual search of the vehicle."
Noting that this was a case of first impression in the the circuit, and recognizing that the other circuits are split on the issue, the Third Circuit joined the First Circuit in holding that the focus of the analysis is the overall reasonableness of the impoundment for a community caretaking purpose. In adopting this approach, the Court rejected the D.C. Circuit's logic "requiring that there be standardized police procedures governing impoundments." Thus, the Court concluded that "a reasonable impoundment does not become unreasonable merely because the police do not impound all vehicles found in similar circumstances any more than an unreasonable impoundment becomes reasonable merely because all vehicles in similar circumstances are impounded." Applying this approach to the facts of the case, the Third Circuit concluded that the discretionary decision to impound the vehicle was reasonable, especially given the officers' concern regarding the vehicle's safety.
Lancaster police arrested the driver and passenger of a car stopped in an area "in which parked vehicles were subject to being damaged, vandalized, or stolen." Police could not identify the owner of the vehicle, although they were able to determine that it did not belong to either occupant. Based on these facts, one of the officers decided to impound the vehicle, and during a subsequent inventory search discovered a handgun in the glove compartment. After losing a motion to suppress firearm, the defendant entered a conditional plea to a violation of 18 U.S.C. §§ 922(g) and 924(c).
On appeal, the defendant argued that the decision to impound the car had to "be exercised pursuant to standardized criteria or the seizure is unconstitutional." The defendant further argued that the Lancaster Police Department did not have a standard procedure regarding the impounding of vehicles. Notably, the defendant did not challenge the actual search itself, and the Third circuit thus limited its review to the "validity of the impoundment rather than the validity of the actual search of the vehicle."
Noting that this was a case of first impression in the the circuit, and recognizing that the other circuits are split on the issue, the Third Circuit joined the First Circuit in holding that the focus of the analysis is the overall reasonableness of the impoundment for a community caretaking purpose. In adopting this approach, the Court rejected the D.C. Circuit's logic "requiring that there be standardized police procedures governing impoundments." Thus, the Court concluded that "a reasonable impoundment does not become unreasonable merely because the police do not impound all vehicles found in similar circumstances any more than an unreasonable impoundment becomes reasonable merely because all vehicles in similar circumstances are impounded." Applying this approach to the facts of the case, the Third Circuit concluded that the discretionary decision to impound the vehicle was reasonable, especially given the officers' concern regarding the vehicle's safety.
Third Circuit lacks jurisdiction to hear defendant's appeal that speedy trial motion should've been dismissed with prejudice.
United States v. Martin Kuper, No. 07-1916 (3d Cir. April 7, 2008)
Before the district court, the defendant filed a motion to dismiss his indictment, alleging a violation of the Speedy Trial Act. The district court granted the motion, but dismissed the indictment without prejudice. The defendant appealed, arguing the indictment should have been dismissed with prejudice. The Third Circuit dismissed the appeal, stating that it lacked jurisdiction.
The Court explained that the district court's ruling was not a "final order" for purposes of 28 U.S.C. § 1291. Citing the Supreme Court's decision in United States v. MacDonald, 435 U.S. 850 (1978), which held that a motion to dismiss for a Sixth Amendment speedy trial violation was not a final order, the Third Circuit held that a violation of the Speedy Trial Act likewise, did not "represent a final rejection of a defendant's claim." Instead, the Court recognized that the defendant would be able to "appeal the dismissal of his first indictment if he is re-indicted and convicted." The Court also noted that every court of appeals addressing the issue has held that an order dismissing an indictment without prejudice is not a final order under § 1291.
Additionally, the Court rejected the defendant's claim that re-indictment would cause a "personal hardship," concluding that "the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship." (Funny, I don't remember that being mentioned in my 5th grade civics class!)
Before the district court, the defendant filed a motion to dismiss his indictment, alleging a violation of the Speedy Trial Act. The district court granted the motion, but dismissed the indictment without prejudice. The defendant appealed, arguing the indictment should have been dismissed with prejudice. The Third Circuit dismissed the appeal, stating that it lacked jurisdiction.
The Court explained that the district court's ruling was not a "final order" for purposes of 28 U.S.C. § 1291. Citing the Supreme Court's decision in United States v. MacDonald, 435 U.S. 850 (1978), which held that a motion to dismiss for a Sixth Amendment speedy trial violation was not a final order, the Third Circuit held that a violation of the Speedy Trial Act likewise, did not "represent a final rejection of a defendant's claim." Instead, the Court recognized that the defendant would be able to "appeal the dismissal of his first indictment if he is re-indicted and convicted." The Court also noted that every court of appeals addressing the issue has held that an order dismissing an indictment without prejudice is not a final order under § 1291.
Additionally, the Court rejected the defendant's claim that re-indictment would cause a "personal hardship," concluding that "the discomfiture and cost of a prosecution for a crime even by an innocent person is one of the painful obligations of citizenship." (Funny, I don't remember that being mentioned in my 5th grade civics class!)
Tuesday, April 01, 2008
“Identity theft” sentencing enhancement does not apply to altering addresses on clients’ financial statements
Update: On April 22, 2008, the Court filed the amended opinion. It appears to be substantially the same as the original.
Update: On April 17, 2008, the Court vacated its opinion and judgment sua sponte, explaining that an amended opinion will be filed forthwith.
In United States v. Hawes, No. 06-3334 (3d Cir. Mar. 27, 2008), the Court of Appeals held that the district court erroneously applied a two-level "identity theft" enhancement under § 2B1.1(b)(9)(C)(i) [now § 2B1.1(b)(10)(C)(i)] because the defendant’s conduct did not qualify for the enhancement. Hawes, an investment advisor, was convicted of defrauding his clients of monies that they had entrusted to him. As part of his fraudulent conduct, he changed the addresses to which his clients’ account statements were mailed so that the statements were sent directly to his office address. The Court held that changing an address does not constitute "produc[ing] or obtain[ing] any other means of identification," as required under § 2B1.1(b)(9)(C)(i). It explained that changing an address is similar to the application note’s examples of conduct that does not constitute identity theft, such as stealing an existing credit card or cashing a check from an existing bank account. It rejected the government’s contention that a "means of identification" includes a name plus any other piece of information; rather, the means of identification must be specific or unique. It also noted that "the change of address was to thwart the discovery of, not enable, the illicit activity." Finally, the Court held that Hawes did not "establish new credit or ‘breed’ new forms of identification, as contemplated by Congress and the Sentencing Commission in enacting this enhancement."
The Court further held that this error was not harmless and remanded for resentencing. It affirmed the lower court’s application of the vulnerable victim enhancement and the order of restitution.
Update: On April 17, 2008, the Court vacated its opinion and judgment sua sponte, explaining that an amended opinion will be filed forthwith.
In United States v. Hawes, No. 06-3334 (3d Cir. Mar. 27, 2008), the Court of Appeals held that the district court erroneously applied a two-level "identity theft" enhancement under § 2B1.1(b)(9)(C)(i) [now § 2B1.1(b)(10)(C)(i)] because the defendant’s conduct did not qualify for the enhancement. Hawes, an investment advisor, was convicted of defrauding his clients of monies that they had entrusted to him. As part of his fraudulent conduct, he changed the addresses to which his clients’ account statements were mailed so that the statements were sent directly to his office address. The Court held that changing an address does not constitute "produc[ing] or obtain[ing] any other means of identification," as required under § 2B1.1(b)(9)(C)(i). It explained that changing an address is similar to the application note’s examples of conduct that does not constitute identity theft, such as stealing an existing credit card or cashing a check from an existing bank account. It rejected the government’s contention that a "means of identification" includes a name plus any other piece of information; rather, the means of identification must be specific or unique. It also noted that "the change of address was to thwart the discovery of, not enable, the illicit activity." Finally, the Court held that Hawes did not "establish new credit or ‘breed’ new forms of identification, as contemplated by Congress and the Sentencing Commission in enacting this enhancement."
The Court further held that this error was not harmless and remanded for resentencing. It affirmed the lower court’s application of the vulnerable victim enhancement and the order of restitution.
Wednesday, March 12, 2008
Government’s failure to establish element of offense results in reversal.
In United States v, Ambrose Daniel, No. 07-2413 (3rd Cir. March 6, 2008), the defendant Ambrose Daniel was convicted of unlawful possession of ammunition, in violation of Virgin Islands’ law. Daniel had initially been charged in an eight count indictment, including several federal offenses, but was only convicted of the ammunition offense. Daniel appealed his conviction, arguing there was insufficient evidence to convict him of that offense. The Third Circuit, in an opinion by Judge Roth, reversed, holding that the government had failed to prove a requisite element of the offense.
To prove that Daniel was guilty of unlawful possession of ammunition, the government had the burden of showing that: (1) he possessed ammunition on the day of his arrest; and (2) he was not licensed or otherwise authorized to possess the ammunition. In his jury instructions, the judge explained: "The phrase, ‘unless otherwise authorized by law’ means that the defendant had no license nor other legal authority to possession [of] ammunition." During the trial, the government called a witness to confirm that Daniel was not licensed to posses a firearm. However, the government presented no evidence as to whether he was licensed or otherwise authorized to possess ammunition. The government also failed to present any evidence on what was required to become authorized to possess ammunition.
The Third Circuit emphasized that it owed considerable deference to a jury’s guilty verdict. Nevertheless, the Court found that the government presented no evidence on the issue of authorization to possess ammunition. Virgin Islands’ law does not have a licensing requirement for ammunition and the law is unclear as to how one becomes authorized to possess ammunition. The government argued that the court should infer that Daniel’s possession of the ammunition was unlawful because he did not possess a firearms license. However, the Third Circuit refused to make such an inference, holding that it was the duty of the legislature to determine the standards for what constituted unlawful possession of ammunition. Also, the Court further ruled that the government could not meet its burden of proof by substituting proof that defendant was not authorized to carry a firearm, for proof that he was not authorized to possess ammunition.
Finally, the government argued that defendant had failed to raise an affirmative defense that he was authorized to possess a firearm even though he was not licensed. The Third Circuit rejected this position, finding that authorization to possess ammunition is not an affirmative defense. Accordingly, the Court reserved Daniel’s conviction.
To prove that Daniel was guilty of unlawful possession of ammunition, the government had the burden of showing that: (1) he possessed ammunition on the day of his arrest; and (2) he was not licensed or otherwise authorized to possess the ammunition. In his jury instructions, the judge explained: "The phrase, ‘unless otherwise authorized by law’ means that the defendant had no license nor other legal authority to possession [of] ammunition." During the trial, the government called a witness to confirm that Daniel was not licensed to posses a firearm. However, the government presented no evidence as to whether he was licensed or otherwise authorized to possess ammunition. The government also failed to present any evidence on what was required to become authorized to possess ammunition.
The Third Circuit emphasized that it owed considerable deference to a jury’s guilty verdict. Nevertheless, the Court found that the government presented no evidence on the issue of authorization to possess ammunition. Virgin Islands’ law does not have a licensing requirement for ammunition and the law is unclear as to how one becomes authorized to possess ammunition. The government argued that the court should infer that Daniel’s possession of the ammunition was unlawful because he did not possess a firearms license. However, the Third Circuit refused to make such an inference, holding that it was the duty of the legislature to determine the standards for what constituted unlawful possession of ammunition. Also, the Court further ruled that the government could not meet its burden of proof by substituting proof that defendant was not authorized to carry a firearm, for proof that he was not authorized to possess ammunition.
Finally, the government argued that defendant had failed to raise an affirmative defense that he was authorized to possess a firearm even though he was not licensed. The Third Circuit rejected this position, finding that authorization to possess ammunition is not an affirmative defense. Accordingly, the Court reserved Daniel’s conviction.
Tuesday, March 04, 2008
Juvenile adjudication of "discontinuance" not a "sentence" under 4A1.2. Improper Guidelines calculation not harmless error.
United States v. Langford, No. 06-2774 (3d Cir. February 22, 2008) - Langford entered a guilty plea to bank robbery, armed bank robbery, and carrying and brandishing a firearm during a crime of violence. At sentencing, defense counsel argued that a prior juvenile adjudication that was "discontinued" should not be counted in Langford’s criminal history category. Specifically, that a "discontinuance" was not a sentence under § 4A1.2(a) and therefore a point should not be added - making Langford a category III, rather than a IV. The sentencing court disagreed and ruled that the "discontinuance" counted under § 4A1.2(a) and concluded that Langford was a criminal history category IV.
On appeal Langford argued that the district court improperly calculated his criminal history score and, as a result, started with an incorrect Guidelines range in the sentencing process. In turn, the government argued it was harmless error. In a majority opinion drafted by Judge Rendell (joined by Nygaard), the Third Circuit held that the "discontinuance" was not a sentence under § 4A1.2(a) and that the resulting improper Guidelines range was not harmless error.
With respect to the "discontinuance" the Court focused on the language of § 4A1.2(a) which limits the assignment of criminal history points to those offenses committed prior to age eighteen which "resulted in imposition of an adult or juvenile sentence..." The Court then reviewed the Pennsylvania statutes and determined that a juvenile court can adjudicate a child delinquent and then order the juvenile petition discontinued. The Government argued that the "discontinuance" is akin to a "suspended sentence" which counts under §4A1.2(a). The Court disagreed and, relying on Black’s Law Dictionary, noted that a suspended sentence occurs when the court sentences one "formally" but the sentence is not "actually served". The Court also dismissed each of the Government’s several alternative arguments: 1) that Langford’s "discontinued" sentence was intended to be concurrent to a previously imposed sentence on another case; 2) that the juvenile court had no reason to sentence Langford because it had already committed him on another case; and 3) that the juvenile court’s order for a DNA sample was sufficient to amount to a sentence.
After rejecting these arguments, the Third Circuit found that in light of the district court’s error, the Guidelines range was affected. Therefore, the Court found the proper guideline range should have been calculated with a category III, not a IV - which reduced the range from 46-57 months down to 37-46 months.
The Court then reviewed the effect of this error. Citing United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Court first ruled that although advisory, the Guidelines play an "integral role" at sentencing and therefore the district court is required to calculate them properly. Therefore, a miscalculation of the Guidelines would result in the failure to discharge its duties under step one of Gunter. In addition, the proper Guidelines range is the "natural starting point from which the sentencing court exercises its discretion under § 3553(a) at Gunter’s third step." The Court also found support in the Supreme Court’s recent decision in Gall v. United States, 128 S.Ct. 586, 597 (2007), which found an improper Guidelines calculation a "serious procedural error" and Kimbrough v. United States, 128 S.Ct. 558, 564 (2007), which found that a "district judge must include the Guidelines range in the array of factors warranting consideration."
Not only did the Court find that the district court’s failure to properly calculate the Guidelines affected the three part sentencing process, but also that it "the failure to start with the correct Guidelines range is legal error that thwarts reasonableness review–that is, it cuts off [the Court of Appeals] review process before [the Court] even reach[es] the issue of reasonableness."
The Court then considered whether the improper calculation of the Guidelines was harmless error. Immediately, the Court stated that "the use of an erroneous Guidelines range will typically require reversal..." The Court noted, however, that in limited circumstances the error could be harmless. The Court, citing Williams v. United States, 503 U.S. 193, 203 (1992) stated, "we will remand for re-sentencing ‘unless [we] conclude on the record as a whole ... that the error did not affect the district court’s selection of that sentence imposed." It then rejected the Government’s position that harmless error applies when incorrect range and correct range overlap - the only remedy here for the sentence imposed as a result of incorrectly calculated Guidelines range is remand for re-sentencing.
While Judge Weiss agreed with the majority that a "discontinuance" is not a sentence under § 4A1.2, he dissented stating that the miscalculation in the Guidelines range did not make the sentence unreasonable. He proposed some new test - requiring significant procedural error. Specifically,"[t]he reasonableness of a sentence will not be vitiated by an "insignificant" error in the Guidelines calculation. The Guidelines computation should be performed carefully, but it is designed to produce a range – not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing. There is enough play in the system to allow for harmless error."
On appeal Langford argued that the district court improperly calculated his criminal history score and, as a result, started with an incorrect Guidelines range in the sentencing process. In turn, the government argued it was harmless error. In a majority opinion drafted by Judge Rendell (joined by Nygaard), the Third Circuit held that the "discontinuance" was not a sentence under § 4A1.2(a) and that the resulting improper Guidelines range was not harmless error.
With respect to the "discontinuance" the Court focused on the language of § 4A1.2(a) which limits the assignment of criminal history points to those offenses committed prior to age eighteen which "resulted in imposition of an adult or juvenile sentence..." The Court then reviewed the Pennsylvania statutes and determined that a juvenile court can adjudicate a child delinquent and then order the juvenile petition discontinued. The Government argued that the "discontinuance" is akin to a "suspended sentence" which counts under §4A1.2(a). The Court disagreed and, relying on Black’s Law Dictionary, noted that a suspended sentence occurs when the court sentences one "formally" but the sentence is not "actually served". The Court also dismissed each of the Government’s several alternative arguments: 1) that Langford’s "discontinued" sentence was intended to be concurrent to a previously imposed sentence on another case; 2) that the juvenile court had no reason to sentence Langford because it had already committed him on another case; and 3) that the juvenile court’s order for a DNA sample was sufficient to amount to a sentence.
After rejecting these arguments, the Third Circuit found that in light of the district court’s error, the Guidelines range was affected. Therefore, the Court found the proper guideline range should have been calculated with a category III, not a IV - which reduced the range from 46-57 months down to 37-46 months.
The Court then reviewed the effect of this error. Citing United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Court first ruled that although advisory, the Guidelines play an "integral role" at sentencing and therefore the district court is required to calculate them properly. Therefore, a miscalculation of the Guidelines would result in the failure to discharge its duties under step one of Gunter. In addition, the proper Guidelines range is the "natural starting point from which the sentencing court exercises its discretion under § 3553(a) at Gunter’s third step." The Court also found support in the Supreme Court’s recent decision in Gall v. United States, 128 S.Ct. 586, 597 (2007), which found an improper Guidelines calculation a "serious procedural error" and Kimbrough v. United States, 128 S.Ct. 558, 564 (2007), which found that a "district judge must include the Guidelines range in the array of factors warranting consideration."
Not only did the Court find that the district court’s failure to properly calculate the Guidelines affected the three part sentencing process, but also that it "the failure to start with the correct Guidelines range is legal error that thwarts reasonableness review–that is, it cuts off [the Court of Appeals] review process before [the Court] even reach[es] the issue of reasonableness."
The Court then considered whether the improper calculation of the Guidelines was harmless error. Immediately, the Court stated that "the use of an erroneous Guidelines range will typically require reversal..." The Court noted, however, that in limited circumstances the error could be harmless. The Court, citing Williams v. United States, 503 U.S. 193, 203 (1992) stated, "we will remand for re-sentencing ‘unless [we] conclude on the record as a whole ... that the error did not affect the district court’s selection of that sentence imposed." It then rejected the Government’s position that harmless error applies when incorrect range and correct range overlap - the only remedy here for the sentence imposed as a result of incorrectly calculated Guidelines range is remand for re-sentencing.
While Judge Weiss agreed with the majority that a "discontinuance" is not a sentence under § 4A1.2, he dissented stating that the miscalculation in the Guidelines range did not make the sentence unreasonable. He proposed some new test - requiring significant procedural error. Specifically,"[t]he reasonableness of a sentence will not be vitiated by an "insignificant" error in the Guidelines calculation. The Guidelines computation should be performed carefully, but it is designed to produce a range – not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing. There is enough play in the system to allow for harmless error."
Monday, March 03, 2008
Third Circuit reverses for insufficiency in gun possession case - no evidence of constructive possession or aiding and abetting
United States v. Cunningham, No. 06-3899 (3d Cir. February 21, 2008) - After a jury trial, Cunningham was convicted of three counts - 1) distribution of crack cocaine, 2) possession with intent to distribute more than 5 grams of crack cocaine and aiding abetting, and 3) a possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting. On appeal, Cunningham challenged the sufficiency of the evidence with respect to the two possession convictions.
The gun and drugs that formed the basis for Cunningham’s conviction were found in a back-pack, which Cunningham never held or carried. Rather, the person who held or carried the back pack was Cunningham’s co-defendant. Therefore, the Third Circuit Court of Appeals focused its analysis on whether or not the evidence was sufficient to show that Cunningham constructively possessed the items or aided and abetted his co-defendant’s possession of them.
In an opinion drafted by Judge Fisher, the Court of Appeals affirmed as to the drug possession and reversed as to firearm possession. In making this decision, the Court applied two separate analyses based on two of the Court’s prior holdings (one for the gun and one for the drugs).
With respect to the gun possession, the Court determined that the analysis provided in United States v. Garth, 118 F.3d 99, 113 (3d Cir. 1999) controlled. With that said, the Court concluded that the evidence was insufficient to convict for constructive possession because there was no evidence that Cunningham "knew" about the gun. The evidence was also insufficient for aiding and abetting because Cunningham’s actions "did not show that he attempted to facilitate the carrying of the gun ... or that the gun was in any way instrumental to his decision to participate in the drug offense."
With respect to the drug possession, the Court determined that the analysis provided in United States v. Iafelice, 978 F.2d , 96 (3d Cir. 1992) controlled. Unlike gun possession, the Court found that Cunningham’s sales of identical drugs that morning to those found in the backpack in the afternoon, his speaking with his co-defendant repeatedly, going into his house, and their apparent efforts to safeguard the contraband were sufficient. Quoting Iafelice the Court stated, "there is a logical and convincing connection between the facts established and the conclusion inferred.
The gun and drugs that formed the basis for Cunningham’s conviction were found in a back-pack, which Cunningham never held or carried. Rather, the person who held or carried the back pack was Cunningham’s co-defendant. Therefore, the Third Circuit Court of Appeals focused its analysis on whether or not the evidence was sufficient to show that Cunningham constructively possessed the items or aided and abetted his co-defendant’s possession of them.
In an opinion drafted by Judge Fisher, the Court of Appeals affirmed as to the drug possession and reversed as to firearm possession. In making this decision, the Court applied two separate analyses based on two of the Court’s prior holdings (one for the gun and one for the drugs).
With respect to the gun possession, the Court determined that the analysis provided in United States v. Garth, 118 F.3d 99, 113 (3d Cir. 1999) controlled. With that said, the Court concluded that the evidence was insufficient to convict for constructive possession because there was no evidence that Cunningham "knew" about the gun. The evidence was also insufficient for aiding and abetting because Cunningham’s actions "did not show that he attempted to facilitate the carrying of the gun ... or that the gun was in any way instrumental to his decision to participate in the drug offense."
With respect to the drug possession, the Court determined that the analysis provided in United States v. Iafelice, 978 F.2d , 96 (3d Cir. 1992) controlled. Unlike gun possession, the Court found that Cunningham’s sales of identical drugs that morning to those found in the backpack in the afternoon, his speaking with his co-defendant repeatedly, going into his house, and their apparent efforts to safeguard the contraband were sufficient. Quoting Iafelice the Court stated, "there is a logical and convincing connection between the facts established and the conclusion inferred.
Friday, February 29, 2008
Armed bank robbery sentence remanded for application of incorrect enhancement in original sentence and failure to justify alternative sentence.
United States v. Smalley, No. 06-4552 (3d Cir. Feb.29, 2008). At sentencing in this armed bank robbery case, the government and defense argued that the defendant should receive a three-level enhancement for "brandishing or possessing" a weapon under U.S.S.G. § 2B3.1(b)(2)(E). The judge, however, accepted the probation officer’s recommendation that he should receive a four-level enhancement for "otherwise using" a weapon under U.S.S.G. § 2B3.1(b)(2)(D). The judge imposed a 71-month sentence -- at the high end of the range.
After sentencing, the government wrote to the Court requesting that it issue an amended judgment explaining that it would have imposed the same sentence even if it had applied the three-level enhancement. The Court filed the amended judgment, but outside the time limit set under Federal Rule of Criminal Procedure 35(a).
On appeal, the Third Circuit agreed with the government and the defense that the lower enhancement should apply because although the defendant threatened to stab the teller if she didn’t cooperate, he never took his knife out of his pocket. The government argued harmless error because the district court amended the judgment to explain that the defendant would have received the same sentence no matter what enhancement applied.
The Third Circuit rejected the amended judgment for its failure to comply with Federal and Local procedural rules (Rule 35/out of time, Rule 36/not clerical, L.A.R. 3.1/not amplifying), and because it provided no basis for the 8-month upward departure or variance that would have been necessary to maintain the 71-month sentence (a Gall/Gunter error).
After sentencing, the government wrote to the Court requesting that it issue an amended judgment explaining that it would have imposed the same sentence even if it had applied the three-level enhancement. The Court filed the amended judgment, but outside the time limit set under Federal Rule of Criminal Procedure 35(a).
On appeal, the Third Circuit agreed with the government and the defense that the lower enhancement should apply because although the defendant threatened to stab the teller if she didn’t cooperate, he never took his knife out of his pocket. The government argued harmless error because the district court amended the judgment to explain that the defendant would have received the same sentence no matter what enhancement applied.
The Third Circuit rejected the amended judgment for its failure to comply with Federal and Local procedural rules (Rule 35/out of time, Rule 36/not clerical, L.A.R. 3.1/not amplifying), and because it provided no basis for the 8-month upward departure or variance that would have been necessary to maintain the 71-month sentence (a Gall/Gunter error).
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