Double Jeopardy and Due Process did not preclude trial on a bifurcated 922(g) count after the district court declared a mistrial on a 924(c) count.

The defendant in United States v. Figueroa, No. 11-2597 was charged with two counts of drug distribution, carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Figueroa admitted selling narcotics twice to an undercover officer. During the second sale, the officer testified that he saw a few inches of what he thought was a gun in Figueroa’s waistband. He could not be sure what the object was because it was dark outside. After that same sale, the police pulled over Figueroa’s girlfriend’s car, in which he was the passenger. During the stop, the police recovered a handgun from the glove compartment.  Both Figueroa and his girlfriend denied that they owned or even knew about the gun. At trial, the government prosecuted the 924(c) charge under the theory that Figueroa had a gun in his waistband during the controlled buy. They planned to prosecute the felon-in-possession charge in a bifurcated portion of the trial, adding the theory that Figueroa constructively possessed the gun in the glove compartment.

The jury convicted on the drug counts but was deadlocked on the 924(c) count. The district court declared a mistrial on that count, and originally thought a mistrial on the felon-in-possession count would also be proper. The jurors were dismissed. But the government argued that a finding of manifest necessity could not be made on the felon-in-possession count because the jury was never presented with that charge and its elements. The district judge had a court employee hold the jurors and researched the issue. The Court brought the jurors back for the bifurcated portion of the trial on the 922(g) charge, and the jury convicted. Figueroa appealed, contending that the district court’s decision to bring back the jury and hold the bifurcated felon-in-possession portion of the trial violated his Double Jeopardy and Due Process rights under the Fifth Amendment.

On the Due Process issue, the Third Circuit framed the inquiry as whether the jurors were susceptible to outside influences when they were originally told they were dismissed. If the jurors are “undispersed,” under the control of the court, and cannot discuss the case with others, they can be recalled. The Third Circuit explained that the district court judge did not allow the jurors to disperse and they were not exposed to any outside influences. Accordingly, the district court did not err when it recalled the jury to hear evidence and argument and deliberate on the felon-in-possession count.

Turning to Figueroa’s Double Jeopardy rights, the Third Circuit explained that a reprosecution is only barred by the Double Jeopardy Clause where a mistrial is required by manifest necessity. In this case, there was no manifest necessity for a mistrial on the felon-in-possession count because the jury had not even deliberated on that charge. Therefore, none of the Fifth Amendment’s Double Jeopardy protections were implicated in Figueroa’s case. The Third Circuit explained that, if anything, the district court’s actions were probably required to avoid prejudice to the government.

S.Ct.: No Mandatory LWOP for Juveniles

       In Miller v. Alabama, and Jackson v. Hobbs, Nos. 10-9646 and 10-9647 (June 25, 2012), the Court held that the Eighth  Amendmentforbids a sentencing schemes that mandates life in prison without possibility of parole sentences for juveniles; “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

Opinion (5-4) by: Kagan, with Kennedy, Ginsburg, Breyer and Sotomayor; concurrence by Breyer and Sotomayor; dissents by (a) Roberts, Scalia, Thomas & Alito; (b) Scalia and Thomas; (c) Alito and Scalia.

       “If ‘death is different,’ children are different too.” In this pair of  cases, one on direct appeal from Alabama and one on appeal from post-conviction review from Arkansas, the Supreme Court holds that mandatory sentences of life without parole (“LWOP”) for juveniles violate the Eighth Amendment’s prohibition on disproportionate sentences.  The majority stops short of a categorical ban on juvenile LWOP sentences, but requires individualized sentencing for juveniles in a manner similar to, and expressly drawn from, capital case jurisprudence.   The two  petitioners, Miller and Jackson, were both 14 at the time of the crimes.  They were both tried as adults and were both sentenced according to mandatory LWOP statutes.  

       In its Eighth Amendment analysis, the majority relies upon Roper v. Simmons, 543 U.S. 551 (2005) (holding the juvenile death penalty unconstitutional), and Graham v. Florida, 130 S.Ct. 2011 (2010) (holding juvenile LWOP sentences for non-homicide offenses unconstitutional), to establish that juveniles, in comparison to adults, have lessened culpability and greater capacity for change, and are therefore less deserving of the most severe punishment.  Factors showing that “children are constitutionally different from adults for purposes of sentencing” include “lack of maturity,” “underdeveloped sense of responsibility,” “more vulnerable . . . to negative influences and outside pressures,” “limited control over their environment,” and a less “well-formed” character.  The majority, as in Roper and Graham, cites to science and social science research, including the development of the adolescent brain.  Quoting Graham, “Life without parole forswears altogether the restorative ideal. It reflects an irrevocable judgment about [an offender’s] value and place in society, at odds with a child’s capacity for change.” Because mandatory LWOP statutes prevent the sentencer from considering a defendant’s youth or other factors related to youth, “these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”

       The majority relies heavily on death penalty jurisprudence, relying upon Woodson v. North Carolina, 428 U.S. 280 (1976) (mandatory death penalty statute is unconstitutional; Eighth Amendment requires individualized sentencing); Lockett v. Ohio, 438 U.S. 586 (1978) (Eighth and Fourteenth Amendments require that a sentencer in a capital case not be precluded from considering and giving effect to mitigating factors); Johnson v. Texas, 509 U.S. 350 (1993) (the sentencer in a capital case must be allowed to consider the mitigating qualities of youth).  The majority adopts from capital cases the requirement that the sentencer consider characteristics of the offender and the circumstances of the particular offense.

       For this case specifically, the majority states that the sentencer should have considered: Jackson was not the triggerman; his age affected his understanding of risk and willingness to walk away; his “immersion in violence” includes that his mother and grandmother both shot other individuals.  Miller, whose offense was a “vicious murder,” was high on drugs and alcohol at the time of the crime; his “pathological background” included physical abuse, neglect, a substance-addicted mother, foster care, and four suicide attempts, one at kindergarten age.      

       The majority addresses one of the primary concerns of the dissenters – the lack of a legislative consensus or a rarity in sentencing to show that “evolving standards” have moved beyond juvenile LWOP sentences.  Because over 2500 people are serving juvenile LWOP sentences nationwide, and 28 states allow mandatory juvenile LWOP sentences, it would be difficult to show that a national consensus has evolved against the practice, or that the practice is “unusual.”  Instead, the majority explains that those numbers are more relevant in categorical bar cases, such as Roper, Atkins and Graham.  The Eighth Amendment cases about the mitigation requirement – i.e., non-categorical cases – are not based in numerical evidence of a national consensus.  The majority also notes that the high numbers result directly from the mandatory nature of the statutes.  Finally, the majority argues, somewhat less persuasively, that the evidence of legislative intent is weak, because juvenile transfer statutes (trying kids as adults) are separate from the adult sentencing statutes allowing for LWOP.  

Although the majority states, “We think appropriate occasions for sentencing juveniles to this harshest possible penalty with be uncommon,” the first paragraph of the opinion indicates that a mandatory sentence of life with parole would be constitutionally permissible.  

       Breyer concurs to state that in felony-murder cases where the juvenile defendant did not “kill or intend to kill,” there should be a categorical ban on LWOP.

       Roberts, in dissent, argues that juvenile LWOP is not “unusual” in an evolving standards of decency analysis, because of the 2500  people serving such sentences, and because the direction of change has been toward harsher sentencing (for both juveniles and for LWOP in general).  He disagrees that Roper and Graham can be extended to this outcome, and labels the majority a “science and policy” decision.

       Thomas, in dissent, argues that an original reading of the cruel and unusual punishment clause does not include any categorical prohibitions or a requirement of individualized sentencing, noting that the post-Furman individualized sentencing line of capital cases is wrongly decided.

       Alito, in dissent, argues against the “evolving standards of decency” analysis, saying it is not tied to any objective indicia of society’s standards, and reiterates his quibbles with the outcomes in Kennedy v. Louisiana and Graham.

Maria Pulzetti, EDPA, Capital Habeas Unit

Court Emphasizes Scope of Remand / Rejects Multiplicity Findings in Drug/Gun Case

      In United States v. Kennedy, 2012 WL 2161380 (June 15, 2012), the government appealed the district court’s decision, on a remand for "re-sentencing only," to vacate and merge several counts of conviction. Kennedy had been convicted on multiple drug counts possession of two handguns. At the initial sentencing, the District Court granted Kennedy's motion for a new trial with respect to four counts of conviction, which the Circuit reversed on appeal. On remand, the district court sua sponte found certain counts of conviction multiplicitous and vacated another count on the basis that its own jury charge was plainly erroneous. Here the Circuit vacates the court's judgment, reinstates all counts of conviction, and remands for resentencing to a different judge.

     The charges stemmed from the search of a home and two vehicles connected with Kennedy. Inside the house was $8,300 in cash, ammunition, and 10 grams of crack. In one care (the Lincoln), they discovered a compartment containing a handgun and four brand stamped glassine envelopes with .15 grams of heroin. Later discovered in the second car (the Cadillac), in a secret compartment, was a second handgun and 41 bricks of heroin. This heroin weighed 103.9 grams and bore a different brand stamp than the Lincoln heroin.

     After the Circuit reinstated all counts of conviction on the first appeal and remanded for resentencing "only," the district court vacated one count of possession of a firearm in furtherance of a drug trafficking offense, finding error regarding unanimity in the jury instruction. The district court further found two sets of counts to be multiplicitous, and thus merged the counts together for sentencing. Similarly, the court found two counts of possession with intent to distribute heroin multiplicitous, and mergd those as well.

      The Circuit disagreed on each point. First, noting simply that reconsideration of a jury charge was "not a matter germane to resentencing. Jury instructions go to the validity of a conviction, not to the content of the punishment," and reversed. The Circuit also rejected the multiplicity findings, holding that the two counts of felon in possession of a firearm were not multiplicitous, although the two handguns were seized by the same group of police in the same operation at the same time and same street address, they were found in two separate vehicles, so that they were not possessed simultaneously, but separately. Similarly, with respect to the two drug counts, the two stashes were found in two separate vehicles, so that they were separately possessed, and the two stashes had different compositions and purities and bore different brand stamps. The matter was also reassigned to a different district court judge on remand, based on the appearance of bias against the government.

Third Circuit Does Not Have Jurisdiction To Hear Direct Appeals Of Orders To Produce Supposedly Privileged Documents.

      The Third Circuit reaffirmed the jurisdictional requirements for appealing an order to produce allegedly privileged documents in In Re: Grand Jury, ABC Corp.; John Doe 1; John Doe 2, No. 12-1697 (3d Cir. May 24, 2012).  A party cannot directly appeal a district court’s order to produce documents which the party believes are privileged.  Instead, a party must first refuse to comply with the production order, be held in contempt and then appeal the contempt order, asserting its claim of privilege.  The only exception was set forth in Perlman v. United States, 247 U.S. 7 (1918), where the Supreme Court held that when a custodian of records, who is not the privilege holder, is ordered to produce supposedly privileged documents, the privilege holder may directly appeal the order if the holder cannot otherwise disobey the order.  Since the privilege holder cannot personally disobey the order and then challenge a contempt finding, the holder must be allowed to immediately appeal the court order or they would have no other opportunity to assert their claim of privilege.  In Perlman the subpoena was directed to the court clerk and not Mr. Perlman, the only person who could invoke privilege.  There was no production order for Mr. Perlman to refuse compliance with, so without a direct appeal he would have had no remedy. 

    Appellants  ABC Corp., John Doe 1 and John Doe 2, argued that they could not be held to the contempt standard because the documents were in the possession of a third party, the law firm of Blank Rome, which was not willing to be held in contempt in order to be able to file an appeal. The government initially attempted to subpoena ABC Corp., but they refused to accept service.  Therefore the subpoenas were served on Appellants’ law firms.  Blank Rome represented John Doe 2, and had a joint-defense agreement with ABC Corp.’s and John Doe 1's counsel.  The Third Circuit ruled that the Perlman exception did not apply in this case because the Appellants could take the documents back from the law firm and then disobey the order, be found in contempt and appeal that decision.  Since the contempt route was available for Appellants to assert their claim of privilege over the documents, the Third Circuit ruled it lacked jurisdiction to hear the immediate appeal. 

The Third Circuit Expands Definition Of "a different location" For Application Of The Abduction Enchancement.

In United States v. Reynos, No. 11-1398, (3d Cir. May 22, 2012), the Third Circuit clarified the definition of abduction for purposes of four-level enhancement under U.S.S.G. §2B3.1(b)(4)(A).   According to the Guidelines a victim is “abducted” when he or she is “forced to accompany an offender to a different location.”  Under the Third Circuit’s analysis and ruling in Reynos, a very broad range of actions will qualify as an abduction and lead to the four-point enhancement.  In particular, the circuit court took an expansive view of what constitutes “a different location.” 

    This case involved the armed robbery of a pizzeria in Philadelphia.  During the robbery,  the employees hid, locking themselves in the bathroom.  The assailants, including appellant Reynos, kicked in the bathroom door and, brandishing a weapon, ordered the employees to open the cash register.  Later, all of the employees were able to escape, running out of the front door, while Reynos went to secure the back door.  Although none of the employees were forced to leave the pizzeria, the district court applied the four-level enhancement for abduction.  The Third Circuit affirmed.

    The major issue in this appeal was what constituted a change of location.  Reynos argued that moving the employees from the bathroom to the cash register did not qualify as a change of location, noting the distance between the two spots was less than 40 feet and that he never removed the victims from the pizzeria.  In determining what constituted a different location, the Third Circuit decided to apply the flexible, case specific approach used by the Fourth and Fifth Circuits.  Under this approach, the enhancement is applicable even if the victim(s) are never removed from the building.  The Court made an analogy to a courthouse noting that a courtroom, the clerk’s office and judicial chambers where all in the same facility, but constituted different and distinct locations.  In this case, the victim(s) were removed from a secure room that was separated from the cash register by a locked door, walls and a hallway.  This was sufficient to make the bathroom a separate location, within the pizzeria, from the cash register.

    Additionally, regarding the requirement that the perpetrator use force to move the victim(s), the Third Circuit confirmed that force is not limited to physical force.  Rather, use of threats, intimidation and fear are sufficient to satisfy this requirement.  Although there was no evidence Reynos used physical force, his brandishing a weapon at the victim(s) qualified as use of force. 

    In view of these definitions, the Third Circuit found the sentencing court properly applied the abduction enhancement.



   

No Relief for Career Offenders (Sentenced Within § 4B1.1 Range) Seeking Crack Reductions

     In United States v. Thompson, defendant pled guilty to distribution of fewer than five grams of crack cocaine, but his sentencing range was ultimately calculated based on his classification as a career offender. Following the 2011 retroactive amendment to the Sentencing Guidelines that lowered the base offense levels for crack cocaine offenses, Thompson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).

     In United States v. Mateo, 560 F.3d 152 (3d Cir.2009), the Third Circuit held that a defendant sentenced under § 4B1.1 was not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” under 18 U.S.C. § 3582(c)(2), because the crack cocaine amendment in §2D1.1 had no effect on Mateo's sentencing range: it altered the calculation of the base offense level for his crack cocaine offense, but not the calculation of the career offender Guidelines range actually used to compute his Guidelines sentence.

     Thompson argued that Mateo should be reconsidered in light of Freeman v. United States, 131 S.Ct. 2685 (2011), which held that in the case of a defendant who had entered an 11(c)(1)(C) guilty plea recommending a sentence “based on” a subsequently amended Guideline, relief under § 3582 was available.

     In this case Thompson argued that Freeman altered the “based on” analysis and Mateo's ultimate reliance on the final sentencing range was no longer valid. The Circuit disagreed, finding that the two cases addressed different questions about the “based on” condition: “Freeman dealt with one interpretive question: whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be “based on” a sentencing range at all.” and “Mateo addressed another: whether a sentence can be “based on” a sentencing range other than the range actually used at sentencing.” The Court explicitly left open the question whether career offenders who received departures or variances might be eligible for reductions in sentence. That question comes before the Court in September.

S.Ct.: Fair Sentencing Act’s Lower Mandatory Minimums to Apply to the Post-Act Sentencing of Pre-Act Offenders

    Consistent with the Third Circuit’s decision in United States v. Dixon, 648 F.3d 195, 203 (3d Cir. 2011) , the Court held in Dorsey v. United States and Hill v. United States, 2012 WL 2344463 (June 21, 2012), that the Fair Sentencing Act's new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders. The Court cited six factors demonstrating Congressional intent to apply the new penalties retroactively: (1) The saving statute permits Congress to apply the new penalties without expressly saying so, where “the “plain import” or “fair implication” of the new statute point clearly in that direction”; (2) the SRA “sets forth a special and different background principle in § 3553(a)(4)(A)(ii), which applies unless ex post facto concerns are present. Thus, new, lower Guidelines amendments apply to offenders who committed an offense before the adoption of the amendments but are sentenced thereafter;” (3) the FSA implies that Congress intended to follow that principle, noting the Act’s mandate that the Guidelines “achieve consistency with other guideline provisions and applicable law,”referring to the law as changed by the FSA; (4) applying the old mandatory minimums to post-FSA sentencings (of pre-FSAoffenders) would create sentencing disparities of a kind the statutes were meant to prevent; (5) not applying the new penalties would create a new set of disproportionate sentences; and (6) the lack of any “countervailing considerations that would make a critical difference.”


     With respect to Mr. Dorsey, the new Act's lower minimums also apply, regardless of the fact that he was sentenced between that FSA date on enactment and November 1, 2010, the effective date of the new Guidelines.

S.Ct. - Apprendi Applies to Restitution

Southern Union Co. v. United States, http://www.supremecourt.gov/opinions/11pdf/11-94a1b2.pdf


     Petitioner Southern Union Company was convicted of violating a statute that criminalized storing liquid mercury without a permit, punishable by fines of up to $50,000 per day of violation. The indictment covered a period of over 2 years, but the jury's verdict on the single count did not specify how many days. Southern Union had argued below that under Apprendi it could not receive more than a $50,000 fine. The judge below disagreed, found a maximum potential fine of $38.1 million, and imposed a combined fine and community service obligation of $18 million.

     As usual for an Apprendi case, an unusual majority (Sotomayor, joined by Roberts, Scalia, Thomas, Ginsburg, and Kagan) holds that there is no principled distinction between fines and imprisonment or the death penalty, and that Apprendi applies to fines "where a fine is substantial enough to trigger the 6th Amendment's jury trial guarantee." At common law, the majority says, juries routinely found facts that set the maximum criminal fines. It rejects an often advanced distinction between "elements" and "sentencing factors." Breyer, joined by Kennedy and Alito, dissents.

Claudia VanWyk, EDPA, Capital Habeas Unit

BOP and Retaliatory Placement

     In Cardona v. Bledsoe, No. 10-2650 (3d Cir. June 19, 2012), the Court held that a suit for retaliatory placement in the special housing unit of a federal prison is properly brought under Bivens, not § 2241; affirms district court’s dismissal of suit.

     In this § 2241 habeas case from the Middle District of Pennsylvania, the petitioner is a federal prisoner who alleged that he was placed in the special management unit of USP-Lewisburg in retaliation for his litigation against the BOP. He petitioned pro se under 28 U.S.C. § 2241. The district court dismissed without prejudice to file as a civil rights lawsuit with the same allegations under Bivens, and Cardona appealed.
     The Third Circuit has held that § 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). In that case, the Circuit defined “execution” as “carrying out” the directives of the sentencing judgment. The panel concludes that Cardona has failed to allege that placement in the SMU was inconsistent with a command or recommendation in the sentencing judgment, and therefore his claim does not fall under § 2241.
     The panel also considers whether Cardona’s claim goes to the length of his confinement, which can be challenged via § 2241, due to the potential loss of good time credits during SMU placement. The panel concludes that because the loss of good time credits is not definite, the placement does not “necessarily imply” a change in the duration of his confinement, and the claim is not properly brought under § 2241 as a challenge to the length of confinement.
    The panel affirms the district court’s dismissal of the petition.
Maria Pulzetti, EDPA, Capital Habeas Unit

Court Upholds Challenge to BOP Placement Decision; Addresses 2241 and Exhaustion

    In Vasquez v. Strada, No. 12-1114 (3d Cir. June 1, 2012) (published June 20, 2012, at Appellee’s motion), the Court held that BOP did not abuse its discretion in community placement assessment; exception to exhaustion requirement does not apply because issue does not involve only statutory construction.

     In this § 2241 habeas case from the Middle District of Pennsylvania, a federal prisoner challenges the BOP’s determination of his halfway house placement under the Second Chance Act of 2007 and 42 U.S.C. § 17541, the federal prisoner reentry initiative. The regulations implementing the Act require the BOP to make an individual determination of placement time, pursuant to 18 U.S.C. § 3621(b), and give the BOP discretion to consider incentives such as participation in skills development programs.

     The BOP’s assessment recommended Vasquez for community placement, but not for the maximum 12-month period, based partially on his failure to participate in educational programs. Vasquez filed a habeas petition, challenging the BOP’s implementation of the federal prisoner reentry initiative and seeking the full 12 month community placement. The district court dismissed the petition, finding both that Vasquez had failed to exhaust administrative remedies, and that his petition lacked merit.

     The panel holds that § 2241 is the proper vehicle to challenge the halfway house placement, but finds that Vasquez does not meet the statutory construction exception to the exhaustion requirement, because he is seeking the full 12-month placement. Despite its decision on exhaustion, the panel reviews the merits of the petition, finding that the BOP did not abuse its discretion in its balancing of the five § 3621(b) factors with the Second Chance Act. The panel also finds that Vasquez “received appropriate consideration for the maximum allowable period of community placement.”

     The panel affirms the district court’s dismissal of the petition.

Maria Pulzetti, EDPA, Capital Habeas Unit

Sup. Ct.: Admission of DNA results performed by non-testifying analyst, admissible when relied on by testifying expert.

     The Court today (4-1-4) (Justices Alito, Roberts, Kennedy, and Breyer), in Williams v. Illinois, No. 10-8505, upheld an Illinois state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, though defendant had no opportunity to confront the actual analysts, where the statements are related by the testifying expert for the purpose of explaining the assumptions on which the expert’s opinion rests. The Court held such statements (test results) are not offered for their truth and fall outside the scope of the Confrontation Clause.  Moreover, the report was not the type of statement (such as affidavits, depositions, prior testimony, and confessions), that the Confrontation Clause was originally understood to reach. The fifth vote, Justice Thomas, found that the reports had been admitted for their truth, but were not "testimonial" for purposes of the Confrontation Clause.

     Justice Kagan’s dissent (joined by Justices Scalia, Ginsburg and Sotomayor) points out that there is no majority holding on why, contrary to Melendez-Diaz and Bullcoming, such a report should be admissible. The Court, she concludes, has approved introduction of testimony clearly prohibited by the Confrontation Clause and "left significant confusion in their wake."

SUPREME COURT: Reversal of CTA3 Habeas Grant on Jackson v. Virginia

In Coleman v. Johnson, 556 U.S. ___ (May 29, 2012), a non-capital habeas case from the Third Circuit, the Supreme Court reversed a grant of relief under Jackson v. Virginia, 443 U.S. 307 (1979), for insufficient evidence to support the conviction. This is the second Jackson per curiam reversal of this term – see also Cavazos v. Smith, 132 S.Ct. 2 (2011) – although in this case, unlike Cavazos, there are no dissents.


The Court describes a Jackson inquiry on habeas review as “two layers of judicial deference.” On direct appeal, “a reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Then, a federal habeas court can grant relief on a sufficiency of the evidence challenge “only if the state court decision was objectively unreasonable.”

Johnson was convicted for first-degree murder for a shooting death that occurred in an alleyway outside a bar. Johnson was prosecuted as an accomplice and co-conspirator; Corey Walker, a friend of Johnson’s, was prosecuted as the shooter. Johnson filed post-trial motions and a state post-conviction petition arguing that the evidence was insufficient to support his conviction; the state courts denied relief.

The Third Circuit granted relief on the Jackson claim, reasoning that no rational factfinder could accept the “mere speculation” that “Johnson shared Walker’s intent to kill Williams.”

The Supreme Court holds that the Third Circuit “unduly impinged on the jury’s role as factfinder,” because “Jackson requires only that jurors ‘draw reasonable inferences.’” “[T]he only question under Jackson is whether [the jury’s] finding was so insupportable as to fall below the threshold of bare rationality. The state court of last review did not think so, and that determination in turn is entitled to considerable deference under AEDPA.”
 
Maria Pulzetti, EDPA, Capital Habeas Unit

Supreme Court: Reversal of Habeas Grant on Jackson and Pros Misconduct Claims

In Parker v. Matthews, http://www.supremecourt.gov/opinions/11pdf/11-845.pdf, Petitioner broke into his estranged wife's home, shot and killed her mother, had sex with the wife and then shot and killed her too. Presented extreme emotional distress defense, on which Commonwealth had burden of proof under Kentucky law, based on expert testimony on his intoxication and adjustment disorder. The Sixth Circuit granted habeas relief because the state court had impermissibly shifted the burden of proving EED to the defense and the CW had failed to disprove it. Circuit also found due process violation in prosecutor's closing argument that the petitioner colluded with his lawyer and his expert to concoct the defense.


SCOTUS, reverses in a per curiam decision. Erasing any doubts that the "double deference" concept applies beyond the IAC context, the Court faults the 6th Circuit for reading the Kentucky Supreme Court opinion as burden-shifting. While there were some portions of the opinion that tended that way, it is "not clear" that they formed the "sole basis" for the opinion because there were some other (rather cursory) sentences that were not burden shifting. "That ground was sufficient to reject Matthews' claim, so it is irrelevant that the court also invoked a ground of questionable validity." The Court also rejects the Circuit's further conclusion that "the evidence supported a finding of no extreme emotional disturbance." The conclusion could not survive "twice-deferential" review required by deference to the jury and by AEDPA.

On the prosecutorial misconduct point, the Court acknowledges that the prosecutor seemed to be arguing that the EED defense was cooked up, but faults the Circuit for not considering immediately following language in which the prosecutor disclaimed what he had just argued, insisting that he wasn't suggesting that the lawyer was unetheical or that the doctor was perjuring himself. (The prosecutor's technique was straight out of Cassius's speech in Shakespeare's Julius Caesar, which we studied in 8th grade ("Brutus is an honorable man.").) Because the Darden v. Wainwright standard for prosecutorial misconduct is very general, petitioner has failed to establish that the state court violated clearly established federal law.

Finally, the Court faults the Circuit for employing its own four-part test to the Darden error. It is only allowed to use Supreme Court precedents, not its own, in applying AEDPA's 2254(d).

Claudia VanWyk, EDPA, Capital Habeas Unit

Anders in Habeas

In Simon v. Gov’t of the Virgin Islands, No. 09-3616 (May 9, 2012), the Circuit held that an Anders brief may be filed in habeas corpus proceedings but that the Virgin Islands Appellate Division court erred in affirming the denial of post-conviction relief based on an inadequate Anders brief, where the lower court had described certain claims as “non-frivolous” and there wsa arguable merit to the appeal.


In this non-capital habeas case from the Virgin Islands, the Third Circuit addresses the question of whether Anders procedures apply in the habeas context. (Because this case is from the Virgin Islands, this case, unlike most habeas cases reviewed by the Third Circuit, is not governed by 28 U.S.C. § 2254 or § 2241.) The Anders brief was filed on the appeal of Simon’s post-conviction petition in the Virgin Islands courts.

The Third Circuit holds that it is not error to apply Anders procedures in habeas, recognizing that there is no right to counsel in state post-conviction proceedings:

Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987). Because that right exists on direct appeal but not in collateral proceedings, Anders procedures are not required in the habeas context. See id. at 555, 557 (“Since respondent has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”).

Because Anders procedures afford heightened protections, however, it is not erroneous to apply them in the habeas context. Indeed, Anders procedures afford the petitioner a more careful review of the merits of an appeal than might occur without an attorney or with a less than conscientious attorney. Applying Anders procedures in the habeas context does not deprive the petitioner of anything that he would be given in any other format. The Appellate Division did not, therefore, err by applying Anders procedures in the habeas context.

The opinion also holds that the Anders brief in this case was inadequate as a matter of law, and therefore reverses and remands. It was inadequate because there were issues of arguable merit including a Brady issue, and the trial court had indicated as much by filing a “certificate of probable cause” (similar to a COA) after denying relief. The court vacates and remands for full briefing on the merits.

Maria Pulzetti, EDPa

Third Circuit affirms drug conviction, but remands for resentencing in light of Fair Sentencing Act

Defendant Haziz Self was convicted on two counts of distributing crack cocaine and sentenced to a mandatory minimum sentence of 120 months' imprisonment. On appeal, Self identified six separate instances of possible error: (1) the disqualification of his counsel of choice; (2) the denial of his motion for a mistrial; (3) the denial of defense counsel's request to interview an alternate juror after the alternate alleged misconduct by other jurors; (4) the district court's refusal to adopt a mitigating role adjustment; (5) the total weight of the drugs involved in the offense; and (6) the use of a pre-Fair Sentencing Act (FSA) mandatory minimum. The Third Circuit, in United States v. Self, No. 11-1763 (3d Cir. May 30, 2012), rejected all but the defendant's FSA challenge. On that ground, the Court held, and the government conceded, that Self was entitled to be resentenced without application of any mandatory minimum because he was sentenced after the FSA was enacted.

With respect to the remaining challenges, the Court found the following:

(1) The right to counsel of choice is not absolute and the possibility of a conflict is sufficient to disqualify appellant's counsel of choice. Here, Self and his co-defendant brother were both originally represented by two members of the same four-person law firm. Even though Self's brother's attorney ultimately withdrew from representation, citing the potential for conflict, the Court found that a serious potential for conflict remained if Self's lawyer retained any loyalty to his firm's former client (Self's brother). The Court found that, given the firm's small size, disqualification of the entire firm was not an abuse of discretion.

(2)  A mistrial was not required where improper remarks made by a government witness were brief, isolated, unsolicited and followed by a cautionary instruction.

(3) Post-verdict inquiries of jurors are generally disfavored. Here, the district court denied defense counsel's request to question an alternate juror who never participated in deliberations, but who reported post-verdict that several of the regular jurors had told her that they went along with the verdict even though they did not necessarily agree with it. The Third Circuit concluded that, at best, the alternate juror's statement suggested only that some jurors may have persuaded others to set aside their misgivings and vote to convict. There was no allegation of any outside influence on the jury and the alternate was not present for deliberations. As such, the Court held that the district court did not abuse its discretion in denying counsel's request to question the alternate juror.

(4) Self's direct engagement in drug distribution, his relationship with others in the conspiracy and his knowledge of the nature and scope of the venture precluded a mitigating role adjustment.

(5) Finally, Self objected to the district court's determination that he should be held responsible for the weight of the drugs in two separate packages where the contents of only one of the packages was tested. In light of the use of an established testing procedure, the similar size and appearance of the packages, and the incriminating circumstances of the transaction, the Third Circuit concluded that the district court's weight calculation was reasonably reliable.

Where a quasi Anders brief was filed by counsel along with pro se filings by appellant, Court of Appeals reiterates that there is no constitutional right to hybrid representation and that to do so is also in violation of Local Appellate Rule 31.3

Mr. Turner was indicted on three weapons offenses including 924(e) and was convicted after trial. In United States v. Turner, No. 10-4573 (E.D.PA 04/19/12), the Court of Appeals affirmed the conviction. In doing so, the Court noted the "unusual turns" this case took on appeal and addressed several issues that were raised as a result.

On appeal, the "unusual turns" are as follows: First, Mr. Turner’s counsel filed a "quasi Anders brief" which raised two colorable arguments and nine frivolous arguments - in it there was no request to withdraw as counsel; Second, Mr. Turner filed a pro se pleading that the Court construed to be a motion for leave to file supplemental brief - in it he requested that counsel withdraw and he raised new arguments on the merits; Third, and in response to Turner’s pro se filing, his counsel filed a Motion for Leave for Appellant to File a Pro Se Supplemental Brief, noting that Third Circuit Local Appellate Rule 31.3 permitted the filing of a supplement brief, "if appropriate." Both the "quasi Anders brief" and the pro se document were forwarded to the merits panel. In response, the Government asked the Court to reconsider, arguing that Turner was seeking "hybrid representation." Turner responded pro se and argued that he was entitled to "hybrid representation" because he and his counsel were divided on meritorious issues. His counsel then filed a response reiterating that this was an "unusual case," adding that a "quasi Anders brief" was filed in order to make any arguments possible on behalf of the client while also addressing arguments the client insisted be made despite the advice of counsel. The motions panel denied the Government’s motion for reconsideration. Thereafter the Government filed a merits brief addressing the two colorable claims filed by Mr. Turner’s counsel but refusing to address the remaining claims arguing that it was prohibited by Local Appellate Rule 31.3. Turner’s counsel filed a reply brief arguing that Rule 31.3 was ambiguous and permitted the filing of a supplement brief in the unusual case. The Court of Appeals then granted a yet to be ruled on request for leave for Turner to file a supplemental brief. In response, Turner filed another brief which raised four additional issues but without any legal support. The Government, confused, argued that the Court should not consider the pro se arguments while Turner was represented by counsel.

The Court of Appeals then turned to the two non-frivolous claims raised by Turner’s counsel. With little discussion, the Court found no plain error in both his argument that a limiting instruction should have been given regarding a cooperating witnesses and in its admission of evidence it deemed relevant.

The Court then took the opportunity to explain the proper procedure counsel should follow when a disagreement exists with their clients as to which arguments to present to the Court on appeal.

First, the Court of Appeals held that a "quasi Anders brief," though well intentioned, was improper. The Court noted that there is no constitutional obligation for counsel to present frivolous arguments. The Court also found that the Rules of Professional Responsibility do not propose such a solution to these types of disagreements. To the contrary, the Rules suggest counsel has an ethical obligation to not pursue frivolous appeals. An Anders brief is not a "substitute for an advocate’s brief on the merits." To do otherwise, vis-a-vis a "quasi Anders brief" runs afoul of these principles. The Rules of Professional Responsibility propose that if such disagreements exist the client should discharge their lawyer - although the Court cautioned that an indigent appellant does not have a right to counsel of choice nor does an appellant have a right to proceed pro se.

Second, the Court of Appeals held that it would not accept the invitation to consider Mr. Turner’s pro se filings as it is prohibited by Local Rule 31.3 which forbids such consideration when he was represented by counsel. The Court noted that it may have considered such filings in the past, but that practice should have been abrogated once Local Rule 31.3 was adopted in 2002. It also clarified that the Local Rule permits supplemental filings by "counsel" and not by represented party. This ensures that "counsel and the client speak with one voice" and avoids the "morass of hybrid advocacy" that this case presented.

Gagnon applies to the voir dire process.

Mr. Johnson was convicted after a jury trial on charges of cocaine distribution, possession of a firearm by a convicted felon and carrying a firearm during in relation to a drug trafficking offense. In United States v. Johnson, 11-2170 (E.D.PA 04/19/12), the Court of Appeals affirmed the judgement and 120 months sentence of imprisonment imposed by the District Court.

On appeal, Johnson made four arguments. First, he argued that during the voir dire process the district violated his right to be present at all stages of trial under the United States Constitution as well as Federal Rules of Criminal Procedure 43. Specifically, his complaint rested with the district court’s questioning of prospective jurors at sidebar outside his presence. The Court of Appeals noted that during jury selection, neither Johnson nor his counsel objected to this practice. As a result, Johnson’s lawyer was deemed to have consented to this practice and therefore waived Mr. Johnson’s right to challenge it on appeal. Likewise, because no objection was made, the challenge under Rule 43 was also deemed to be waived. The Court further held that no warning of this right need be given. In so finding, the Court of Appeals joined several other Circuits in applying United States v. Gagnon, 470 U.S. 522 (1985). Hence, the failure to invoke one’s right to be present at a conference between an judge and juror is deemed to be a waiver of that right.

Second, Johnson argued that trial court abused its discretion by denying the disclosure of the confidential informant’s identity. The Court of Appeals disagreed finding that Mr. Johnson had not met his burden set forth under Roviaro v. United States, 353 U.S. 53 (1957).

Third, Johnson argued that the evidence was insufficient to convict him of possession of a firearm in furtherance of a drug-trafficking offense. The Court of Appeals held that his illegal possession of a loaded firearm in his waistband was selling drugs was sufficient evidence.

Finally, Johnson argued that lower court erred by imposing an upward variance to 120 months from 97 to 106 months. Again, the Court of Appeals, disagreed, finding no abuse of discretion in an upward variance where the sentencing court concluded that previously imposed shorter sentences had not proven to be enough of a deterrent.

Convictions in Pennsylvania state court for simple assault and third-degree murder can qualify as “crimes of violence” for purposes of career offender designation under U.S.S.G. § 4B1.1.

In United States v. Marrero, No. 11-2351 (3d Cir. April 25, 2012), Ricardo Marrero, who pleaded guilty to two counts of bank robbery, appealed his sentence, arguing that the District Court erred in classifying him as a career offender under U.S.S.G. § 4B1.1, because two of the required three convictions for career offender status were not "crimes of violence": (1) simple assault (18 Pa. Cons. Stat. Ann. § 2701(a)(1)); and (2) third-degree murder (18 Pa. Cons. Stat. Ann. § 2502(c)). Marrero argued that neither conviction qualified as a crime of violence because both of his convictions could have been based on conduct that was reckless, rather than intentional. And if either one of these prior offenses were not a crime of violence, then he should not have been designated and sentenced as a career offender.

The Third Circuit rejected Marrero’s argument as to both convictions, finding that the District Court properly ruled that both were crimes of violence.

As to simple assault, the Court reasoned that for the simple assault conviction to satisfy the "residual clause" in § 4B1.2(a)(2), referring to offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another," the Court would have to find that it "typically involve[s] purposeful, violent, and aggressive conduct." To determine whether the simple assault conviction was for intentional or knowing conduct, rather than merely reckless or negligent conduct, the Court applied the "modified categorical approach," in which the Court can examine "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Here, in the plea colloquy, Marrero admitted to placing his hands around his wife’s neck and attempting to pull her up a flight of stairs. The Court found that the District Court properly ruled that this conduct constituted intent to cause bodily harm, which the Third Circuit has already held to qualify as a crime of violence.

As to third-degree murder, the Court looked to § 4B1.2 (Application Note 1), which states that the term "‘crime of violence’ includes murder," and so is an "enumerated" offense for purposes of the crime-of-violence analysis. For such enumerated offenses, the categorical approach of United States v. Taylor, 495 U.S. 575, 602 (1990) applies, and so "no inquiry into the facts of the predicate offense is permitted . . . ." The Court concluded that third-degree murder under Pennsylvania law is equivalent to the enumerated offense of "murder" and thus qualifies as a crime of violence for purposes of the career offender designation.

Signatories of trust fund account not in position of trust vis-a-vis the IRS for purposes of 3B1.3 sentencing guidelines enhancement.

In United States v. DeMuro, Nos. 11-1887, 11-1941 (3d Cir. April 23, 2012), the Third Circuit affirmed convictions of James and Theresa DeMuro for conspiracy to defraud the United States, and failure to turn over more than $500,000 in federal employment taxes collected from employees at their engineering company, much of which was spent on purchases from QVC and Home Shopping Network. But the Court remanded for resentencing because the District Court erroneously applied the two-level enhancement of U.S.S.G.
§ 3B1.3 for abuse of a position of trust.

The DeMuros challenged their convictions based on several evidentiary rulings admitting and excluding various evidence. None of the rulings seem remarkable, and so not surprisingly, the Court concluded that none were an abuse of discretion. That conclusion may have been inevitable in light of the additional red-flag argument that even if no single error alone would support relief, the cumulative effect of the rulings so infected the jury’s deliberations, etc. A very quick LEXIS check of the past 20 years found no cases in which the Third Circuit accepted that argument, which seems to be the appellate equivalent of a last-second Hail Mary pass from your own 1-yard line.

But what did find success (and presumably the reason the Court designated this case precedential) was the sentencing argument that the District Court erred in applying a two-level enhancement to the base offense level for abuse of position of trust, under U.S.S.G. § 3B1.3. The District Court applied the enhancement based on the DeMuros’ conduct with respect to the trust fund account imposed by the IRS, into which the DeMuros were obliged to pay company trust fund taxes within two days of withholding the taxes, but instead, withdrew from this account and closed it without IRS permission.

The Third Circuit ruled that the enhancement did not apply because the DeMuros did not satisfy any one of the three factors required for finding that they occupied a position of public or private trust, which requires considering: (1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests defendant vis-a-vis the object of the wrongful act; and (3) whether there has been a reliance on the integrity of the person occupying the position. Although the Government argued that the error was harmless because the ultimate sentence happened to fall within the correct sentence range (i.e., as if calculated without the 3B1.3 enhancement), the Third Circuit refused to find harmless error where the calculated Guidelines range was erroneous.

Guideline Enhancement Not Mentioned in Rule 11(c)(1)(C) Plea Agreement Applies to Defendant

In United States v. Dahmen, No. 11-1521 (March 27, 2012), the Third Circuit addressed an interesting issue of whether the Government violated a Rule 11(c)(1)(C) plea agreement when it recommended a Chapter 4 enhancement that was not specifically mentioned in the plea agreement.

The Defendant pleaded guilty to transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) and possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). The agreement specified the base offense level for each count and referenced certain sentencing enhancements pursuant to Chapters 2 and 3 of the Guidelines, but made no mention of any enhancements pursuant to Chapter 4. The agreement also contained a waiver of appellate rights subject to three limited exceptions: (1) if the Government appealed; (2) if the sentence exceeded the statutory maximum; or (3) if the sentence exceeded the applicable Guidelines range. The agreement also noted that its “stipulations [were] not binding on the Court and [did] not preclude the parties from bringing to the attention of the United States Probation Office or the Court any other information.”

Before accepting the plea, the District Court clarified that although the plea agreement indicated that the stipulations made between the parties were not binding on the court, that language was incorrect. The Court explained that if it accepted the plea, the stipulations would be binding because the nature of the stipulations fall under the classifications set forth in Rule 11(c)(1)(C).

The Government objected to the PSR claiming that the Guidelines were subject to enhancement pursuant to USSG §4B1.5(b), which applies to defendants who engaged in a pattern of activity involving prohibited sexual conduct. The Probation Officer agreed and amended the PSR.

The Defendant did not contest the application of the enhancement but instead argued for a variance on the basis that USSG §4B1.5(b) was redundant because the factors it addressed were already contemplated by USSG §§2G1.3, 2G2.2 and 4A1.1, all of which were included in the plea agreement. The Court disagreed, denied the variance and sentenced the Defendant within the enhanced guideline imprisonment range.

First, the Third Circuit determined that the appropriate standard of review was plain error because of the Defendant’s failure to object in the District Court, citing Puckett v. United States, 556 U.S. 129, 134 (2009).

Second, the Circuit rejected the defense argument that once the District Court deemed itself bound by a written plea agreement that made no mention of the enhancement in question, it was prohibited from applying the unmentioned enhancement at sentencing. The District Court referred only to the paragraphs of the plea agreement which addressed only Chapters 2 and 3 of the Guidelines, relating to calculations of base offense level, conduct-related enhancements, and adjustments for multiple counts. Neither the District Court nor the written plea agreement mentioned §4B1.5(b) or any other Chapter 4 enhancements, which relate to criminal history.

Finally, the Circuit did not reach the Defendant’s issue that his sentence was unreasonable, as his appellate waiver prevented such review.