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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Search Incident to Execution of Warrant Upheld

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conviction vacated due to prosecutorial misconduct

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

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

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

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

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

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

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

VACATED and REMANDED .

Conviction for Possession of a Weapon in a Prison affirmed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Child Pornography / Warrants / Sufficiency / Evidence of Age

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

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