In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin’s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.
Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B.L. and M.M., over the internet in exchange for money. She was subsequently charged with one count of production of a sexually explicit visual depiction of a minor, 18 U.S.C. § 2251(a), amongst other counts. Larkin entered a guilty plea pursuant to a plea agreement to this count alone (the rest were dismissed). Pursuant to the plea agreement, the Government moved for a downward departure under § 5K1.1 for Ms. Larkin’s substantial assistance to law enforcement authorities. Additionally, the plea agreement outlined a projected guideline range of 121-151 months imprisonment. Prior to sentencing the United States Probation Office calculated a higher guideline range than the plea agreement contemplated as it added 2 levels for “use of a computer” under § 2G2.1(b)(3) (2003), it found there were two victims (not one) and because of the calculation that Ms. Larkin was a CHC II (not a CHC I as contemplated by the plea agreement). Despite the plea agreement, the Government made arguments in support of the probation office’s positions. After objections, including that the Government violated the plea agreement, the district court did not apply the 2 level enhancement. The district court did, however, agree that there were two victims (i.e. both of Larkin’s children) and that it could consider their mental health evaluations. And, finally, the district court did not find the Government breached the plea agreement when it briefed in support of the U.S. Probation Office’s positions.
Prior to sentencing and despite the Government’s 5K1.1 motion for downward departure, the Court asked the parties to brief possible upward departures. Thereafter, the Court issued its opinion that it intended to upwardly depart. At sentencing, the Court sentenced Ms. Larkin to the statutory maximum 30 years imprisonment with lifetime supervised release.
On appeal, Ms. Larkin raised four issues: 1) Whether the photographs of her one child, B.L., qualified as “sexually explicit” under 18 U.S.C. § 2256(2)(B)(iii) which therefore qualified her as a second victim; 2) Whether the Government’s conduct violated the terms of the plea agreement; 3) Whether the district court violated the ex post facto clause when it upwardly departed five levels; and 4) Whether Larkin’s sentence was reasonable.
First, the Court of Appeals held that the photographs of B.L. were “sexually explicit” because they were “graphic or simulated lascivious exhibition of the genitals or pubic area of any person” under 18 U.S.C. § 2256(2)(B)(iii). In analyzing 5 photographs, the Court applied the “Dost test” which is a 6-factor test (looks at whether there’s a focus on genitalia, sexual suggestiveness, pose, nudity, sexual coyness, intended to elicit a sexual response) in determining whether a depiction is of “lascivious conduct.” See United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986). In applying this test, the Court analyzed each photograph individually and discussed each factor. While in large part the photographs satisfied few of these factors or they were “close calls,” the Court often fell back on factor 6 - that the photographs were “engineered to elicit a sexual response” of their “target audience” - and therefore qualified es “sexually explicit.”
Second, the Court of Appeals held the Government did not violate the terms of the plea agreement. Applying a contract law standard of analysis, the Court considered “whether the government’s conduct falls within the range of expectations reasonably understood by Larkin when she entered her guilty plea.” The Court engaged in a three-step process: 1) review the relevant portions of the plea agreement as compared to the allegations of impropriety by the government; 2) evaluate the conduct and determine if it is violative of the plea agreement; and 3) if there is a violation, fashion an appropriate remedy. The plea agreement contemplated a specific guideline range and cited particular enhancements that did and did not apply. For example, the government agreed that the 2 level enhancement for use of a computer did not apply. Yet, when probation said it did apply and the government argued pre-sentence for its application. The government also provided the probation office with psychologist reports that were in support of an upward departure. The government also filed briefs in response to the court’s request regarding upward departures. Larkin asserted this (among other things) was a breach of the plea agreement. Despite Larkin’s arguments that the plea agreement terms were breached, the Court of appeals disagreed. The Court cited specific language in the plea agreement which stated that, in effect, the government would provide all information to the court and the probation office that was relevant to sentencing factors and was not limited in its response to court requests for briefing. So, in effect, the government drafted a plea agreement with Larkin and agreed to certain terms. Yet, when the probation office mentioned the possibility of an upward departure, the government simply “obliged” by giving them the no doubt unfavorable psychological report which supported the upward departure. Then when the Court requested briefing on the upward departure the government’s response was not considered “advocacy” but rather it was considered an “assessment of the law and the relevant facts that would support the application of the enhancement.” As a result, the Court of Appeals decided the government had not crossed the line.
Third, the Court of Appeals held that the district court did not violate the ex post facto clause when it upwardly departed five levels based on a 2009 amendment to the Sentencing Guidelines (Larkin committed the offense in 2002 and was sentenced in 2009). The district court found the 2002 Guidelines did not consider the severity of Larkin’s conduct and therefore departed upward by 5 levels under the 2009 Guidelines, § 5K2.0. The district court did so citing the fact that the 2009 guideline specifically contemplated enhancements for the identified conduct. Yet, while the Court of Appeals held that direct application of an amended guideline to conduct that occurred prior to the amendment offends the ex post facto clause, “analogizing” to the amendment does not.
Fourth, the Court of Appeals held that Larkin’s sentence was reasonable. The bulk of Larkin’s argument in this regard centered on the disparity in sentences between she and her co-defendant who received the same sentence despite the fact that she provided substantial assistance. Finding no procedural errors, the Court cited Gall, in holding that, although the appellate court might “reasonably have concluded that a different sentence was appropriate” that is “insufficient to justify reversal.”
Thursday, December 30, 2010
Tuesday, November 30, 2010
Case Remanded for Resentencing Due to Imposition of “General Sentence”
In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.
Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.
At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.
The Defendant appealed arguing the sentence was procedurally and substantively unreasonable. The Third Circuit applied a two-step process: (1) addressing procedural errors by reviewing facts for clear error and applied a de novo review of legal rulings; and (2) addressing substantive reasonableness using an abuse of discretion standard by looking at the "totality of circumstances". Errors not raised at trial were subject to "plain error review."
Ward argued the trial court erred procedurally by finding that a second victim was involved. Applying U.S.S.G. § 2G2.1 and relevant conduct to the facts, the Third Circuit found no error in adding the two-level adjustment for a second victim.
The Third Circuit found that converting restitution into a fine was in error because of the manner in which it was done; no analysis was made by the district court explaining why a fine would be appropriate. Unfortunately this error did not result in a "manifest injustice" so there was no plain error.
However, the Third Circuit held that under § 5G1.2 and Application Note 1, sentencing courts must impose a sentence on each count. Failure to do so is plain error affecting the defendant’s substantial rights and resulting in "manifest injustice" because it doesn’t allow the defendant or appellate courts to determine whether the sentence was legal as to particular counts. The sentence was therefore vacated and the case remanded for resentencing.
Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.
At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.
The Defendant appealed arguing the sentence was procedurally and substantively unreasonable. The Third Circuit applied a two-step process: (1) addressing procedural errors by reviewing facts for clear error and applied a de novo review of legal rulings; and (2) addressing substantive reasonableness using an abuse of discretion standard by looking at the "totality of circumstances". Errors not raised at trial were subject to "plain error review."
Ward argued the trial court erred procedurally by finding that a second victim was involved. Applying U.S.S.G. § 2G2.1 and relevant conduct to the facts, the Third Circuit found no error in adding the two-level adjustment for a second victim.
The Third Circuit found that converting restitution into a fine was in error because of the manner in which it was done; no analysis was made by the district court explaining why a fine would be appropriate. Unfortunately this error did not result in a "manifest injustice" so there was no plain error.
However, the Third Circuit held that under § 5G1.2 and Application Note 1, sentencing courts must impose a sentence on each count. Failure to do so is plain error affecting the defendant’s substantial rights and resulting in "manifest injustice" because it doesn’t allow the defendant or appellate courts to determine whether the sentence was legal as to particular counts. The sentence was therefore vacated and the case remanded for resentencing.
Thursday, October 21, 2010
Interior Dog Sniff of Open Car Not Illegal Warrantless Search
In United States v. Pierce, No. 09-3865 (3d Cir., October 1, 2010), the defendant was stopped by a Delaware State trooper for speeding. According to the trooper, the defendant's responses to his questions led the trooper to remove the defendant from the vehicle. As the defendant complied with the trooper's command, he left the front driver's side door open. At some point, the trooper requested that a narcotics dog conduct a K-9 examination of the car. As the narcotics dog and its handler circled the vehicle, the dog alerted when he reached the front passenger side door. When the dog and its handler reached the driver's side of the car, the dog immediately jumped into the driver's seat through the open door. The dog intently sniffed the glove box and air vents. In response to the dog's alert, the trooper searched the glove box and discovered approximately one kilogram of cocaine and over $20,000 in cash.
Citing the Eighth and Tenth Circuits, the Third Circuit determined that an interior dog sniff is not violative of the Fourth Amendment if the dog's actions are instinctive, and not directed, facilitated or encouraged by its handler. The defendant argued that the dog's sniffs of the interior of the car constituted a Fourth Amendment search because the dog's handler facilitated his entry into the vehicle. However, after a review of the record, which included a videotape of the traffic stop, the Court concluded that the dog acted instinctively and without facilitation by its handler. The Court ultimately ruled that the dog's interior sniff at issue was not a search under the Fourth Amendment, but merely a natural migration from its exterior sniff. The Court also noted that the search would have been deemed permissible because it is well settled that a dog's positive alert during an exterior sniff of a vehicle establishes the probable cause necessary to search the interior of the car.
Citing the Eighth and Tenth Circuits, the Third Circuit determined that an interior dog sniff is not violative of the Fourth Amendment if the dog's actions are instinctive, and not directed, facilitated or encouraged by its handler. The defendant argued that the dog's sniffs of the interior of the car constituted a Fourth Amendment search because the dog's handler facilitated his entry into the vehicle. However, after a review of the record, which included a videotape of the traffic stop, the Court concluded that the dog acted instinctively and without facilitation by its handler. The Court ultimately ruled that the dog's interior sniff at issue was not a search under the Fourth Amendment, but merely a natural migration from its exterior sniff. The Court also noted that the search would have been deemed permissible because it is well settled that a dog's positive alert during an exterior sniff of a vehicle establishes the probable cause necessary to search the interior of the car.
PWID is Lesser-Included Offense of PWID Within 1000 Feet of School
In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant's vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered marijuana from the vehicle.
The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.
One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.
The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.
One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.
CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable
U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.
Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.
Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.
The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”
Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”
Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.
Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.
Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.
The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”
Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”
Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.
Tuesday, October 05, 2010
Circuit Applies Skilling, Reverses Honest Services Conviction
In United States v. Riley, 2010 WL 3584066 (3d. Cir. Sept. 16, 2010), the Court held that the district court’s instruction to the jury that honest services fraud did not require scheme to defraud another to obtain money or property, and could instead be based on violation of duty of honest, faithful, and disinterested service, was plainly erroneous. Riley is the Third Circuit’s first application of the Supreme Court’s recent decision in Skilling v. United States, --- U.S. ----, 130 S.Ct. 2896 (2010), holding that to remain within constitutional limitations, the honest services statute at § 1346 is limited to “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”
Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of conspiracy to defraud the public of Defendant James's honest services in violation of 18 U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371. At trial, the District Court instructed the jury that honest services fraud did not require a scheme to defraud another to obtain money or property, and could instead be based on a violation of the duty of honest, faithful, and disinterested service. The Circuit here reversed.
The Court rejected defendants’ arguments that (1) the evidence in support of the honest services charge had an improper spillover effect; (2) the evidence was insufficient to prove “scheme to defraud”; and (3) the district court abused its discretion in not severing the charges.
Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of conspiracy to defraud the public of Defendant James's honest services in violation of 18 U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371. At trial, the District Court instructed the jury that honest services fraud did not require a scheme to defraud another to obtain money or property, and could instead be based on a violation of the duty of honest, faithful, and disinterested service. The Circuit here reversed.
The Court rejected defendants’ arguments that (1) the evidence in support of the honest services charge had an improper spillover effect; (2) the evidence was insufficient to prove “scheme to defraud”; and (3) the district court abused its discretion in not severing the charges.
Circuit Affirms Inventory Search into Closed Containers
In United States v. Mundy, 2010 WL 3547435 (3d. Cir. Sept. 14, 2010), the court held that (1) the city police department's vehicle stop and impoundment guidelines provided sufficiently standardized criteria regulating scope of permissible inventory search, including searches of closed containers; (2) the officer's reliance on the guidelines was not a pretext for an investigatory search of vehicle.
Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit and a gray plastic bag containing a closed shoebox. The officer removed the shoebox and opened it. Inside, he found a brown paper lunch bag and two clear plastic zip-locked bags filled with a substance that appeared to be cocaine. Inside the paper lunch bag were four more clear plastic zip-locked bags, also containing a substance that appeared to be cocaine. The officer replaced the items, closed the trunk of the vehicle, placed Mundy under arrest, and recovered $1,107 in cash from his person. The officers then notified narcotics agents. They did not complete a Towing Report listing the items found during the search.
At the hearing on Mundy’s motion to suppress, the officer testified that he found the cocaine during a routine inventory search of Mundy's car. Philadelphia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from claims of missing property and damage. Mundy argued that the officers did not have probable cause to search the vehicle, and that the inventory search policy did not sufficiently regulate the officers' discretion with respect to closed containers found in the vehicle. The District Court denied the motion to suppress, concluding that the search was conducted pursuant to a valid inventory search in accordance with departmental policy.
The Third Circuit affirmed, holding that the City police department's vehicle stop and impoundment guidelines, which implemented impoundment provisions of state Vehicle Code, provided sufficiently standardized criteria regulating the scope of inventory searches of automobiles, including closed containers found inside, notwithstanding that the policy did not specifically mention closed containers. The standardized criteria could adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or equivalent terms because the policy explicitly set out its objectives to protect owner's property and shield officers from claims of loss or damage, and sufficiently regulated the scope of the search.
Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit and a gray plastic bag containing a closed shoebox. The officer removed the shoebox and opened it. Inside, he found a brown paper lunch bag and two clear plastic zip-locked bags filled with a substance that appeared to be cocaine. Inside the paper lunch bag were four more clear plastic zip-locked bags, also containing a substance that appeared to be cocaine. The officer replaced the items, closed the trunk of the vehicle, placed Mundy under arrest, and recovered $1,107 in cash from his person. The officers then notified narcotics agents. They did not complete a Towing Report listing the items found during the search.
At the hearing on Mundy’s motion to suppress, the officer testified that he found the cocaine during a routine inventory search of Mundy's car. Philadelphia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from claims of missing property and damage. Mundy argued that the officers did not have probable cause to search the vehicle, and that the inventory search policy did not sufficiently regulate the officers' discretion with respect to closed containers found in the vehicle. The District Court denied the motion to suppress, concluding that the search was conducted pursuant to a valid inventory search in accordance with departmental policy.
The Third Circuit affirmed, holding that the City police department's vehicle stop and impoundment guidelines, which implemented impoundment provisions of state Vehicle Code, provided sufficiently standardized criteria regulating the scope of inventory searches of automobiles, including closed containers found inside, notwithstanding that the policy did not specifically mention closed containers. The standardized criteria could adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or equivalent terms because the policy explicitly set out its objectives to protect owner's property and shield officers from claims of loss or damage, and sufficiently regulated the scope of the search.
Friday, October 01, 2010
Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo
In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703.
In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.
Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.
United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses. The most significant legal challenge involved a willful blindness jury instruction.
Stadtmauer argued that the Supreme Court’s opinion in Cheek v. United States, 498 U.S. 192 (1991), precluded a willful blindness instruction. Cheek holds that criminal tax liability does not attach to a person who, in good faith, is ignorant of a legal duty, misunderstands that legal duty, or believes that such a legal duty does not exist. In accord with several other circuits, the Third Circuit concluded that a willful blindness instruction does not run afoul of Cheek, because where the evidence supports a finding that a defendant intentionally insulated himself from knowledge of his tax obligations, the defendant cannot claim good faith ignorance.
Wednesday, September 29, 2010
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.
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.
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.
Friday, September 24, 2010
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).
Wednesday, September 08, 2010
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.
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.
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.
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.
Friday, August 27, 2010
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.
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.
Tuesday, August 17, 2010
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."
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."
Tuesday, August 10, 2010
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.
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.
Thursday, July 29, 2010
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.”
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.”
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.”
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