Discovery of contraband in a shared cell is sufficient to warrant loss of good time credits

In Denny v. Schultz, Docket No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.

After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.

On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.

Judge Rendell filed a dissenting opinion, arguing that constructive possession required either the exercise of dominion or control, or the power and intention to exercise dominion or control, over the property. Because such evidence was absent, Judge Rendell would have reversed the district court's sua sponte dismissal of Denny's habeas petition and remanded for resolution on the merits.

General appellate waiver does not bar appeal of subsequent modification of terms of supervised release

Deciding a matter of first impression, the Third Circuit, in United States v. Wilson, Docket No. 12-1881 (3d Cir. Feb. 14, 2013), ruled that a defendant's broad, general waiver of appellate rights encompassed only his original sentence, not the subsequent modification of the terms of his supervised release.

Wilson pled guilty to two federal drug charges. His plea agreement contained a waiver of his right to appeal or collaterally challenge his conviction and sentence. After sentencing, Wilson filed a Notice of Appeal, but the Third Circuit enforced the waiver and affirmed his conviction and sentence. Wilson was eventually released from prison and began serving a six year term of supervised release. About three months into his term, his Probation Officer filed an application to modify the terms of Wilson's supervised release to include participation in a mental health program as an additional condition. The district court agreed to the requested modification and ordered Wilson to undergo a mental health assessment and, if necessary, to participate in an approved mental health treatment program.

Wilson appealed. The government moved to dismiss the appeal on the basis of the appellate waiver, arguing that the word "sentence" in Wilson's appellate waiver encompassed any challenge to the terms and conditions of that sentence, including subsequent modifications of the terms of his supervised release. The Third Circuit rejected this argument and adopted the reasoning of several other Circuits holding that a general waiver of appellate rights with respect the original sentence does not foreclose a challenge to a post-sentencing order modifying the terms and conditions of the original sentence. The Court found that, while Wilson's appellate waiver could reasonably be understood to encompass a waiver of  his right to appeal the "sentence" imposed at sentencing and memorialized in the judgment and commitment order, it did not waive a right to appeal a later modification of his "sentence."

After concluding that Wilson's appeal was not barred by the appellate waiver, the Third Circuit considered the merits of Wilson's appeal and affirmed the modification of Wilson's terms of supervised release.

Intended Loss Not Necessarily Potential Loss in Credit Card Fraud

In United States v. Diallo, ___ F.3d ____, 2013 WL 150125 (3d Cir., Jan. 15, 2013), the defendant pled guilty to possessing over 15 counterfeit credit cards. The government calculated an actual loss amount of $160,000. However, at sentencing, the government argued that the defendant should receive a 16-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1), based upon the intended loss. Specifically, the government asserted that the counterfeit credit cards provided the defendant with access to a combined credit limit of $1.6 million. However, there was no evidence presented that the defendant actually knew the credit limits of the counterfeit cards. Nonetheless, the district court accepted the government’s argument and sentenced the defendant to 70 months, at the bottom of the 70-87 month guideline range. However, the Third Circuit refused to endorse a blanket rule that the intended loss amount should be the cards’s credit limit in every credit card fraud case. Citing United States v. Geevers, 226 F.3d 186 (3d Cir. 2000) and United States v. Titchell, 261 F.3d 348 (3d Cir. 2001), the court reiterated the general rule that the potential loss is not necessarily the intended loss in all fraud cases. Therefore, it would be error for the district court to presume that the aggregate credit limit alone is sufficient to constitute a prima facie case of intended loss in a credit card fraud case. Instead, the district court must conduct a "deeper analysis" to determine whether it is proper to equate potential loss with intended loss. After reviewing the district court’s analysis, the Third Circuit ruled that it was not sufficiently "deeper." The Third Circuit concluded that, based upon the district court’s limited analysis, it appeared that the district court simply equated potential loss with intended loss, which it had instructed against in Geevers and Titchell. The Third Circuit ultimately vacated the sentence and remanded the case for resentencing.

S.Ct.: Conspiracy SOL and Burden on Defense of Withdrawal

SUPREME COURT: Smith v. United States, --- S.Ct. ----, 2013 WL 85299 (U.S. Jan. 9, 2013). Held: A defendant bears the burden of proving a defense of withdrawal from a charged conspiracy. Allocating this burden to the defendant does not violate the Due Process Clause. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense, thus the government has no constitutional duty to overcome the defense beyond a reasonable doubt.

Absence of Proof on Element of the Offense Overcomes Appellate Waiver

United States v. Castro, --- F.3d ----, 2013 WL 69214 (3d Cir. Jan. 08, 2013).  Former Philadelphia Police Department official Castro was indicted in connection with debt collection extortion schemes. Following a trial, a jury convicted Castro on one count of making a material false statement to federal agents (18 U.S.C. § 1001), acquitted him on one count of conspiracy to commit extortion (18 U.S.C. § 894) and hung on eight other counts. Castro then pled guilty to a single count of conspiracy to commit extortion (18 U.S.C. § 1951) and the government dismissed the remaining charges. The plea agreement contained an appellate waiver provision. At sentencing, the district court imposed 18 months imprisonment for the false statements count and 60 months concurrent for his plea for conspiracy to commit extortion.  Castro appealed, arguing that: (1) the false statement conviction should be vacated because when he lied to the FBI, denying he had received any money from the victim in repayment of a lost investment, in fact, he had not received any repayments from the victim because he had instead received money from the FBI in a sting operation, therefore his denial was not "knowing" or "false"; (2) his sentence was procedurally unreasonable because the district court denied the government's motion for the third acceptance of responsibility point under the sentencing guidelines, as the government’s discretion is entitled to deference; and (3) the 60–month sentence is procedurally and substantively unreasonable because the advisory range suggested a sentence of 33 to 41 months, the court did not adequately take into account evidence of his good character and failed to explain why an upward variance was necessary to fulfill the proper purposes of sentencing.

The Circuit first held that although Castro was convicted by a jury of the false statements count before entering into the plea and accepting the waiver, the appellate waiver covered his conviction for making material false statement to federal agents. The Court focused on the language of the waiver, "voluntarily and expressly waives all rights to appeal . . . any other matter relating to this prosecution," finding that this language clearly encompassed the earlier conviction on the false statement charge. The Court also found that the waiver was entered into knowingly.

But moving to the miscarriage of justice analysis, the Court agreed with Castro that he did not make a false statement when he stated that he received no payment from the victim. In evaluating for the first time a claim of miscarriage of justice based on insufficiency, the Court looked to the plain error context for guidance. Under the plain error standard, a "manifest miscarriage of justice" occurs where the record is "devoid of evidence pointing to guilt." Section 1001, the false statement statute, requires the accused knowingly and willfully make a material false statement in a federal matter. Because Castro’s statement that he did not receive any payments from the victim was actually, if unintentionally, true (because it was FBI sting money), the government could not establish that he made a statement that was untrue. The defense of literal truth applies. The Court rejected the government’s suggestion of a "sting operation exception," because there is simply is no exception in the statute. The court concludes that the complete failure of proof on this element meets the miscarriage of justice standard, requiring reversal on the false statements count.

With respect to Castro’s argument that the district court's rejection of the government's motion for the third acceptance point was error, the Court found the issue covered by the appellate waiver and declined to reach the merits. Finally, the Court’s reversal of the false statements count requires remand for resentencing and the Court did not need to otherwise reach the reasonableness of the sentence.

Collateral Consequences Not Presumed on SR Revocation

United States v. Huff, --- F.3d ----, 2013 WL 93165 (3d Cir. Jan. 09, 2013). The district court revoked Huff's supervised release and sentenced her to ten months’ imprisonment with no supervised release to follow. Huff was released from custody while her appeal was pending. The Circuit held that the presumption of collateral consequences did not apply to a defendant's challenge to a revocation of supervised release. Because Huff's unconditional release from prison rendered the case moot, the appeal was dismissed for lack of jurisdiction.

Under the Modified Categorical Approach, Sentencing Courts May Only Consider the Charging Documents and the Jury Instructions When Determining if a State Offense is a Predicate Offense Under ACCA.

    After pleading guilty to violating 18 U.S.C. § 922(g)(1), Dantey Tucker was sentenced to fifteen years imprisonment based on the sentencing enhancement set forth in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).  His classification as an armed career offender was based on one prior state conviction for a violent felony, a conviction for possession of a controlled substance with intent to deliver in violation of 35 PA. STAT. ANN. § 780-113(a)(30), and a conviction for conspiracy to sell drugs in violation of 18 PA. CONST. ANN. §903.  Only the district court’s classification of the prior drug offenses as serious drug offenses was in dispute at sentencing and on appeal.  Specifically, Tucker argued that the district court erred in finding that his two state drug convictions were serious drug offenses within the meaning of the ACCA.  Applying the  “modified categorical approach,” in United States v. Tucker, No 12-1482 (3d Cir., December 21, 2012), the Third Circuit held that the conspiracy charge was not a serious drug offense, but the possession conviction was a serious drug offense because it was based on a finding that the offense involved cocaine. 

    At sentencing, Tucker had argued neither of his prior drug convictions required a factual finding as to what type of drug was involved and therefore did not trigger the ACCA enhancement.  Since the language of the applicable state statutes was broad and not equivalent to a federal predicate offense, Supreme Court precedent -Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005)- required the sentencing court to apply the modified categorical approach.  This approach allows for a limited inquiry into the elements of an offense that a jury is required to find in order to convict a defendant. In conducting such a review, courts are limited to looking at the charging documents and the jury instructions.    

    The charging document for Tucker’s conviction for possession with intent to distribute (§ 780-113(a)(30)) explicitly listed cocaine as the controlled substance.  The conviction specifically required a finding that he possessed cocaine.  Therefore this prior qualified as a serious drug offense.  Also, since the district court’s finding was consistent with Supreme Court precedent and the modified categorical approach, the Third Circuit rejected Tucker’s argument that the district court’s determination that this was serious drug offense conflicted with the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Sixth Amendment. 
                                               
    However, it was unclear if Tucker’s conviction for conspiracy to sell drugs (§903) was for conspiracy to sell cocaine (which would trigger the ACCA) or conspiracy to sell marijuana (which would not trigger the enhancement).  Applying the modified categorical approach, the Third Circuit reversed the sentencing court’s finding that this prior conviction qualified as a serious drug offense, because neither the Bill of Information nor the jury instructions required the jury to find that the offense involved a conspiracy to sell cocaine in order to convict Tucker.  In fact, the type of drug was never specified in the charging document or jury instructions which simply referred to a “conspiracy to sell drugs.”  The appellate court further found that the district court erred in considering transcripts from the charging conference and sentence hearing, which fell outside what the court was allowed to consider under Taylor.  Also, although the circuit court agreed with the government that the jury most likely convicted Tucker for conspiracy to sell cocaine rather than marijuana, the modified categorical approach does not allow for an enhancement based on speculation.  As such, this prior was not a predicate offense for ACCA enhancement and the case was remanded for sentencing. 

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to travel to the United States.

A co-conspirator paid the required fees of persons who were eligible for the diversity lottery and assisted them in completing their paperwork. In exchange, the applicants were required to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas to enter the United States under the program.

Kouevi was responsible for coordinating the preparation of false documents used to support the fraudulent visa applications, and he tutored participants in the details of their false identities to prepare them for their interviews at the American Embassy in Togo. He also accompanied visa applicants to government offices in Togo and helped them acquire false passports, marriage certificates and similar documents required to support their visa applications. This included obtaining additional false evidence of purported relationships including fake wedding rings and fake wedding pictures. He quizzed the applicants about the details of their identities and otherwise coached them in how to successfully interview at the American Embassy. He then took them to the American Embassy for their interviews. In return, his co-conspirator helped him fraudulently obtain his own visa and paid his costs for the visa and airfare to the United States.

Kouevi was subsequently charged in a two-court indictment with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 37, and visa fraud, in violations of 18 U.S.C. § 1546(a). He was convicted on both counts and sentenced to 26 months imprisonment.
Kouevi contends that his conviction for violating 18 U.S.C. § 1546(a) should be reversed because the first paragraph of the statute he was convicted of violating does not criminalize activities involving authentic immigration documents. His argument attempts to distinguish between producing a counterfeit or fraudulent passport or visa and obtaining an authentic passport or visa by fraudulent means.

The Court held that the plain language of the statute reveals that the first paragraph of 18 U.S.C. § 1546(a) prohibits the possession or use of authentic immigration documents which are obtained by fraud.

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was challenging the dismissal of the § 2255 petition, did not move to dismiss the appeal as untimely. Instead, one month after the notice of appeal was filed, the government moved to enforce the appellate waiver and for summary affirmance.

The Court directed the parties to brief the issue of timeliness under Rule 4(b). The government challenged the appeal as untimely. The Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief and dismissed Mr. Muhammad's appeal as untimely. However, the Court "strongly encouraged" the government to file a motion to dismiss a criminal as untimely at the outset of the appeal in order to save the time and costs associated with ordering transcripts and preparing full briefs. Finally, the Court also noted, in dicta, that it also agreed with other courts of appeals that a court may sua sponte raise untimeliness under Rule 4(b).

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its own and the district court’s jurisdiction., but otherwise deemed the government’s arguments waived. It held that a district court has subject matter jurisdiction to consider a second motion for relief pursuant to 18 U.S.C.A. § 3582(c)(2), based on a retroactive Guidelines amendment, as Congress did not clearly state its intent to limit jurisdiction to one motion.

Reaching the merits of Weatherspoon’s appeal, the Circuit found that his sentence, stated in the "c" plea, was not explicitly based on his Sentencing Guidelines range so as to permit a sentence reduction under Freeman v. United States. Here, the agreement provided for a fixed sentence of 120 months’ imprisonment. Looking to the "four corners of the plea agreement," the Court concluded that the agreement was not clear that the sentence was based on the Guidelines. The agreement did not in any way identify or rely on the range. Because the agreement was not explicitly based on his Guidelines range, the district court properly denied Weatherspoon’s motion.

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

 The Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009).   The district court here failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the request for a variance. Accordingly, the sentence was procedurally unreasonable.

With respect to Begin’s state-federal disparity argument, the Circuit found that state-federal disparities are NOT relevant under § 3553(a)(6), and the district court was not required to address that part of Begin’s argument.

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

United States v. Turlington, --- F.3d ----, 2012 WL 4237611 (3d Cir. Sept. 21, 2012) (published Oct. 16, 2012). In this case defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). The Fair Sentencing Act amendments reduced the maximum term of imprisonment for Turlington’s offense, such that it is now a class B felony, which would now permit only three years of imprisonment of revocation of supervised release.

The Circuit held that where an underlying offense was a class A felony at the time of conviction, but has since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), is still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction.

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

United States v. Ware, --- F.3d ----, 2012 WL 4216831 (3d Cir. Sept. 21, 2012). 
Defendants, each designated career offenders, were ultimately sentenced based on the crack guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010. In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2)."). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining "applicable guideline range" to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of "based on" in the federal statute as defined by Freeman. The government appealed.

 In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission's new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:
... Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)....
U.S.S.G. § 1B1.10 cmt. 1(A). Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of "based on" in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced "based on" a sentencing range that has been lowered, also requires any reduction be "consistent with applicable policy statements issued by the Sentencing Commission." Therefore, the plain language of the statute incorporates the Commission's statements which, although narrowing eligibility, do not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term "based on," but instead an additional limit on eligibility, therefore the meaning of the term "based on"—and the holding of Freeman—were not relevant.

　

Court Reverses in CP Case where Court did not View Challenged CP Evidence / Finds Unfair Prejudice

United States v. Cunningham, --- F.3d ----, 2012 WL 4075875 (3d Cir. Sept. 18, 2012).  Cunningham was charged in a three count indictment with receiving, possessing, and  distributing child pornography. Prior to trial, Cunningham filed a motion to preclude the government from showing the jury any of the child pornography videos recovered from his computer. He asserted that because he was stipulating that the government exhibits constituted child pornography the probative value of the evidence was diminished. The district court denied the motion, permitting the government to present "representative samples"and file names. The Court also directed the parties to meet and attempt to reach a stipulation and a joint cautionary jury instruction. The parties agreed to a stipulation advising the jury that the video files obtained from Cunningham’s IP address and physical address depicted real children under the age of 18 engaging in sexually explicit content.

After the government provided defense counsel with the video clips that it intended to present at trial, Cunningham filed another motion to limit the evidence, describing the extraordinarily violent videos in graphic detail. Cunningham objected to admission of the excerpts and alternatively proposed that the evidence should be to still images, absent any display of bondage or actual violence, absent any audio, and with faces obscured. In response, the government agreed not to use audio, but objected to the other limitations as an attempt to "sanitize" and mitigate the force of its evidence. The government proposed to present seven, several-second video clips.

The district court denied Cunningham's motion on the papers, without viewing the evidence, concluding that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Cunningham filed another motion to reconsider admissibility, arguing that his defense was that someone else had downloaded, possessed, and distributed the child pornography at issue, and, with the stipulation already made, there was little value in presenting the video excerpts. He also requested that the Court view the videos prior to ruling on his motion. The district court again denied the motion, stating that the descriptions of the video excerpts were sufficient for the court to rule.

Prior to voir dire, Cunningham requested that the district court advise all potential jurors that, if selected, they would "see a movie that shows a prepubescent minor being sexually penetrated by an adult," and "see graphic images of children, their genitals, and videos of illegal sexual acts, including oral sex, sexual intercourse, and graphic, violent, sexual images." Instead, the court advised and asked all of the potential jurors:

[T]his case involves an accusation that the Defendant received, possessed and distributed child pornography. During this trial you will be shown child pornography including graphic images and hear descriptions of computer files including graphic and offensive file names which will certainly be disturbing to most if not all of you. Regardless of your feelings on this subject matter and the graphic nature of the material presented, are you able to render a fair and impartial verdict based solely on the evidence presented in this court and my instructions to you on the law?
　
Some jurors were excused for cause. Other jurors were further questioned individually at sidebar, where more detailed information on the pornography was revealed, several of those were also excused.

During the trial the government presented two separate videos, containing seven video excerpts, including pre-pubescent children being bound, raped, and violently assaulted. Before and after each of the video excerpts were played, the district court read a cautionary instruction, which directed the jury to view the images in a fair and impartial manner. The jury convicted Cunningham on all counts.

On appeal, Cunningham argued that the district court erred in both failing to view the video excerpts before ruling on their admissibility and in failing to exclude or limit them given his stipulation to their criminal content. He further argued that the Court abused its discretion during voir dire by refusing to provide potential jurors with more detail describing the videos that would be presented during trial.

Procedural Error. The Circuit first found procedural error in the district court’s failure to view the challenged evidence. Relying on similar cases from the Ninth and Seventh Circuits, the Court found that the court "could not have fully assessed the potential prejudice" to Cunningham "and weighed it against the evidence's probative value" without looking at the video excerpts. Having read the written descriptions was not sufficient and should have "heightened the District Court's awareness of the need to see the videos to assess their prejudicial impact before it decided to admit them."

Substantive Error. The Court next held that the district court abused its discretion under Rule 403 by not limiting or excluding the video excerpts. The Court looked at both the elements of the charged crimes and the stipulations between the parties. Although limited by the stipulation, the Court found some probative value in the video clips, "a tendency to show that the offender knew the videos contain child pornography" and the persuasive impact of evidence. This minimal probative value, however, was subject to the law of diminishing returns, and the value of each clip was reduced by the one that preceded it. The aggregate risk of unfair prejudice was "tremendous," as the Circuit could tell just from the descriptions. Two clips in particular, caused the Court to conclude: "Even in the cesspool of evidence presented here, Excerpts 1 and 3 in the second set of video clips stand out. We will not repeat the description of them but note simply that their violent and sadistic character likely created "disgust and antagonism" toward Cunningham which risked "overwhelming prejudice" toward him." Therefore, the Court concluded, the district court abused its discretion in admitting those particular videos. Further, the Court could not conclude their admission was harmless.

Voir Dire. The Court rejected Cunningham’s argument that the district court abused its discretion by failing to publish the video excerpts to potential jurors, citing the district court’s efforts to inform the potential jurors of the graphic evidence to be expected and excusing those who indicated they could not be fair and impartial. The Court left it to the district court’s discretion on remand "to determine if more detailed information about the case would be advisable to ensure a fair and impartial jury."

Discovery for Organizational Defendants / Invited Error / Inconsistent Verdicts

United States v. Maury, --- F.3d ----, 2012 WL 4074565 (3d Cir. Sept. 17, 2012).  In a lengthy decision affirming convictions for organization and multiple individual defendants under the Clean Water Act, the Court addresses multiple issues and, in short, held: (1) Rule governing discovery rights of organizational defendants mandated disclosure only of the binding statements (Fed. R. Crim. P. 16(a)(1)(C)(i), (ii)), that related to alleged misconduct and not of all statements made by employees; (2) "invited error" doctrine applied and prevented defendants from objecting to district court's actions in giving the lesser-included offense and simple negligence instructions which they had requested; and (3) fact that the jury convicted defendants only of lesser-included offense of negligently violating the Clean Water Act, rather than any willful violation, and at same time found them guilty of knowingly participating in conspiracy to violate the CWA, was not necessarily inconsistent.

After an eight-month trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of violations of the Clean Water Act (CWA) and Clean Air Act (CAA), including conspiring to commit environmental pollution and worker safety violations, impeding their investigation, and substantive violations of the CWA and CAA. These offenses included unlawfully pumping contaminated water, burning drums of paint waste, and concealing several work-related accidents, one resulting in the death of an employee. Defendants raised multiple arguments both jointly and individually. The Court principally addressed the adequacy of pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure, the sufficiency of the jury instructions, and the alleged inconsistency of the verdict.

DiscoveryDiscovery in the case was contentious, particularly regarding statements of company employees. Initially, the district court granted a protective order allowing the government to defer production of discoverable statements by current and former employees until 30 days before the start of trial. Defendant’s subsequently filed several motions to compel discovery and also argued that, despite the protective order, they were entitled to all statements made by "co-conspirators," as the government intended to "bind" the company by the statements of those co-conspirators, as well as statements of employees whose conduct would bind the company. The Circuit noted that these requests did not concern the scope of Rule 16(a)(1)(C), but what Defendants were entitled to prior to 30 days before trial. The district court denied the motion to reconsider the protective order.

Consistent with the protective order, the government ultimately produced the withheld Rule 16(a)(1)(C) materials for 24 witnesses. Portions were heavily redacted, purportedly pursuant to the scope of Rule 16(a)(1)(C) which reads:
(C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:
(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

For employees who would bind the company under subsection (i), the government produced all oral statements that it intended to use at trial, and all written statements discussing issues on which the employee had the authority to bind the Company. For those who would bind the company because of their participation in specific conduct under subsection (ii), the government produced all oral and written statements discussing that specific conduct. Other statements from these individuals – statements unrelated to the charged conduct or observations of the conduct of others – were redacted. Defendants objected to the redactions, but did not object to the scope of the government's reading of Rule 16(a)(1)(C). Unredacted copies were produced as Jencks material prior to the testimony of each witness.

On appeal, Defendants argued that the district court erred in its reading of Rule 16(a)(1)(C) and deprived defendants of critical discovery, arguing that the discovery received under subsection (ii) was erroneously limited to statements by employees about specific misconduct, rather than any statements made by the employees. Finding that defendant’s did not preserve an objection to the actual scope of discovery under subsection (ii), the Circuit reviewed for plain error and rejected defendants’ claim.

The Court looked at the purpose of Rule 16(a)(1)(C), to apply the individual-defendant discovery rules to organizational defendants. Looking at subsection (ii), applying those rules to employees who engage in illegal conduct within the scope of their jobs and then make some statement about having done so, the Court held that the "conduct constituting the offense" and the ability "to bind the defendant in respect to that alleged conduct" contemplates statements regarding only the conduct itself. It is only in this context that the employee "speaks" on the behalf of the company. In addition, a broader interpretation would provide an organizational defendant with broader rights than those of individual defendants.

Jury InstructionsDefendants also challenged the district court's instructions to the jury, arguing that the court erred, first, in defining the mens rea for a misdemeanor violation of the CWA, and second, in refusing to include language stating that a showing of recklessness could not meet the mens rea for the charged offenses which required a "knowing" or "willful" violation.

Although the indictment charged felony (knowing) violations of the CWA, defendants requested that the trial court also instruct on the lesser-included misdemeanor offense, which penalizes negligent violations of the Act. In that regard, defendants requested that the court instruct the jury that a "person negligently violates the Clean Water Act by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances." A simple negligence instruction.

On appeal, defendants objected to the simple negligence instruction arguing that a showing of gross negligence was required, based on the subsequently adopted Third Circuit Model Jury Instructions and Supreme Court decision in Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007), a case analyzing and comparing use of the terms "willful" and "reckless" in the civil and criminal provisions of the Fair Credit Reporting Act. The Circuit declined to find that Safeco – addressing an entirely different statute – constitutionally altered, or altered at all, prior caselaw addressing the CWA. Accordingly, defendants were barred from relief by the invited error doctrine, and in any event, would not have overcome plain error review.

The Court also rejected defendants’ assertion that, in addition to an instruction that negligence was not a valid theory of liability on the felony counts, the district court should have included an instruction explaining that "recklessness" was likewise not sufficient to prove "knowing" conduct for a felony conviction. The Court found that the district court was well within its discretion to decline out of concern about confusing the jury and because the required intent was already addressed in other instructions defining "knowing," "willful" and "intentional" conduct.

　
Inconsistent VerdictsThough charged with felony violations of the CWA, (§ 1319(c)(2)) , two defendants, Prisque and Davidson, were convicted of lesser-included misdemeanor or negligent violations (§ 1319(c)(1)(A)). The two were also convicted, however, of knowingly and willfully participating in a conspiracy with the specific objective of violating the CWA. Defendants argued that these verdicts were mutually exclusive and that the conspiracy convictions should be vacated. The Court declined, explaining that the two were convicted of multiple objectives underlying the conspiracy charge, and even if some degree of inconsistency existed between the misdemeanor convictions under § 1319(c)(1) of the CWA and the conspiracy under 18 U.S.C. § 371, the conspiracy conviction could still stand based on the jury's verdict on the remaining underlying offenses. The verdicts were not "fundamentally at odds with one another."

Court articulates factors for egregious and widespread violations of Fourth Amendment and whether consent is voluntary

In Oliva-Ramos v. Attorney General of the U.S., --- F.3d ----, 2012 WL 4017478 (3d Cir. Sept 13, 2012), an appeal from an order of removal and denial of the petitioner’s motion to reopen the proceedings, the Third Circuit remanded for proceedings to determine whether a 4:30 a.m. ICE raid into an apartment, with five or six armed officers, violated the Fourth Amendment and similar regulatory provisions. The officers presented an administrative arrest warrant for one person at the apartment of her sister. The subject of the warrant was not home, but the officers, with questionable consent by the sister, entered the apartment, woke everyone inside, questioned them, blocked their exit, kept them sitting down, and eventually arrested anyone who could not document he was legally present in the United States. The arrestees were handcuffed, placed in a van, and driven to other locations, while agents conducted more raids and filled the van with more people. An immigration judge ordered Oliva-Ramos’ removal and the BIA affirmed. While on appeal to the BIA, Oliva-Ramos submitted additional documentation, obtained through a FOIA request by a law school clinic, to support his argument that the team that conducted the raid engaged in a consistent pattern of constitutional violations. Although, in the immigration context, the exclusionary rule is only applicable where constitutional violations are “egregious” or “widespread,” the Third Circuit collected useful guiding principles to analyze if a defendant can document a pattern of improper conduct, including whether there were intentional violations of the Fourth Amendment, the seizure was gross or unreasonable and without plausible legal ground (e.g., initial stop is unusually lengthy, unnecessary and menacing use of show of force), there was illegal entry of homes, arrests occurred under threats, coercion, or physical abuse, and any seizures or arrests were based on race or perceived ethnicity. The Court remanded for consideration of these factors. The Court also remanded for a better record of whether, under the totality of the circumstances, consent was voluntarily given. Factors to consider included: the setting, the parties' verbal and non-verbal actions, the number of officers and displays of force, the age, education, and intelligence of subject, whether the subject was advised of her constitutional rights, the length of the encounter, the repetition and duration of questioning, and the use of physical punishment.

When Considering a Request By the Government to Modify the Terms of Supervised Release, a Court May Not Impose Any New Terms That Would Create a Greater Deprivation of Liberty Than Necessary to Achieve The Sentencing Goals Established in 18 U.S.C. §3553(a).

     In United States v. Murray, Nos. 11-3196, 11-3197 (3d Cir. September 5, 2012), the Third Circuit considered the question of when it is appropriate for a district court to modify the conditions of supervised release.  District courts have the authority under 18 U.S.C. §3583(e)(2) to change the terms of supervised release after proper consideration of the factors listed in 18 U.S.C. §3553(a).  Federal Rule of Criminal Procedure §32.1(c) requires that a hearing be held before any change in supervision conditions.  Also, the defendant has a right to attend the hearing with his attorney and present mitigating arguments.  The Third Circuit held, in this case, that a district court may only grant a request to modify the terms of supervised release when the changes will not result in a greater deprivation of liberty than is necessary to achieve the purposes of sentencing set forth in §3553(a). When approving new terms and conditions, the district court must explain how the changes are consistent with the goals of sentencing.  The appellate court also reiterated the purpose of supervised release is to promote reintegration into society, not to further punish defendants. 

    Turning to the facts of this case, appellant Charles Murray pled guilty to one count of illicit sexual conduct with a minor (18 U.S.C. §2423(b)) in the District of New Jersey and one count of possession of child pornography (18 U.S.C. 2252(a)(4)(b)) before the Eastern District of Pennsylvania.  He served an aggregate term of 95 months in prison for these offenses and was also sentenced to two concurrent terms of three years of supervised release.  Both federal courts imposed special conditions of supervised release related to the nature of his offenses.

    When Mr. Murray was released from prison, he relocated to a town near Pittsburgh and supervision was transferred to the Probation Office in the Western District of Pennsylvania.  Probation sought to modify the terms of supervision to include additional requirements.  Mr. Murray opposed the modifications and additions, arguing that he had not violated any of the existing terms and that Probation had not provided any reason why the original conditions were not sufficient. In granting Probation’s request, the district court simply stated that it did not find any “meaningful difference” between the existing conditions and the modified terms.  The district court then granted the request making only a conclusory statement that the new conditions comported with §3553(a) and would be “positive” for Murray.  

    On review, the Third Circuit first found that appellant’s relocation to another federal district was a qualifying “changed circumstance,” giving the district court authority to review Probation’s request for a modification of the terms and conditions of supervised release.  But the Third Circuit remanded the case because the district court’s ruling was too vague and conclusory, failing to discuss and apply the §3553(a) factors.  The appellate court ordered the district court to clarify why the new conditions were not greater than necessary to achieve the §3553(a) sentencing goals, especially since there was no suggestion that the original terms were not sufficiently effective. The Third Circuit particularly expressed the need for restrictions on access to sexually oriented materials depicting adults to be narrowly tailored, in light of the First Amendment.

Weapons suppressed: random male observed in a conversation being shown a gun did not give reasonable suspicion to detain him, and subsequent flight did not elevate encounter to probable cause to arrest.

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), http://www.ca3.uscourts.gov/opinarch/113413p.pdf, undercover officers were parked on a block in Newark, which was not found to be a high crime area, but in which there were two, recent unrelated incidents involving guns: two months before a shooting occurred, and one month before there was a domestic violence report of a man threatening a woman with a gun. The officers observed the defendant, whom they did not know, come out of a multi-unit building and stand on the porch. Two men approached, and the defendant walked down from the porch to speak with them. The conversation appeared ordinary and then one of the approaching men took from his backpack and showed to the defendant what appeared to be a gun. The officers approached and the men ran. The defendant ran into the building, up two flights of stairs, and attempted to enter his apartment. Officers tackled him in the doorway to the apartment and there were weapons in plain view. The Third Circuit reversed the District Court's denial of suppression. (McKee, J.) The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the defendant had looked at the gun a third party showed him and also engaged in a brief conversation. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspiciion to detain and investigate. Unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. Judge Hardiman dissented, finding the record supported the District Court's finding that officers had reasonable suspicion to believe the defendant was about to engage in a gun transaction, and so, coupled with the defendant’s flight, which given the circumstances could be interpreted as evidence of a guilty conscience, gave the police probable cause to arrest.

The Prohibition Against General Sentences Does Not Apply to Non-Guideline Sentences.

United States v. Martorano, No. 11-2864 (3d Cir. September 5, 2012)

    George Martorano was charged with nineteen counts in relation to the wholesale distribution of drugs, including conspiring to distribute drugs and supervising a Continuing Criminal Enterprise (CCE). He pled guilty to all nineteen counts.   In 1998, he was sentenced to life in prison. The district court did not issue a sentence for each individual count, but rather imposed a general sentence of life imprisonment. Notably, life imprisonment exceeded the statutory maximum on 18 of the 19 counts; only the CCE count allowed for a life term.

     Mr. Martorano filed numerous appeals and post-conviction motions over the years. In this appeal, Mr. Martorano argued that under the Third Circuit’s holding in United States v. Ward, 626 F.3d 179 (3d Cir. 2010), his general sentence was illegal. In Ward, the Court reversed the 25-year general sentence, which exceeded the statutory maximum on 3 of the 5 counts, because there was not enough information to determine whether the 25 year sentence applied to all 5 counts. The Third Circuit rejected Mr. Martorano’s argument.

     Initially, the Third Circuit noted that it has never held that general sentences are "illegal per se." The Court further explained that Ward was based on U.S.S.G. §5G1.2, which requires courts to impose a sentence on each count. Ultimately, the Third Circuit agreed with the district court that the holding in Ward does not apply to general sentences imposed outside of the Sentencing Guidelines. Since Mr. Martorano was sentenced before the Guidelines took effect, his sentence was not governed by §5G1.2 and the holding in Ward was not controlling. He was therefore not entitled to relief and the sentence was affirmed.

     Although the Third Circuit acknowledged that it had never held general sentences to be per se erroneous, it did reaffirm its position that general sentences are problematic and that in cases with multiple counts a detailed sentence for each count is greatly preferred.

     The appellate court also rejected Mr. Martorano’s second argument that the general sentence violated the Double Jeopardy clause by imposing separate concurrent sentences for the conspiracy to distribute drugs count and for supervising a CCE count. The Court ruled that even assuming that the conspiracy charge was a lesser included charge of the CCE count, Mr. Marorano could not be granted relief on this theory because the higher sentence for the CCE sentence was still within the district court’s discretion.

Crack reduction cases: Court upholds denial of proportional reductions below amended guideline range to account for variance in original sentence

In United States v. Berberena (Sept. 11, 2012), , the Court affirmed denials of sentence reductions below the amended Guideline range in two crack reduction cases. When Amendment 750 to the Sentencing Guidelines implemented the Fair Sentencing Act by reducing the crack-powder disparity, the defendants moved for sentence reductions under 18 U.S.C. § 3582(c)(2). Both defendants had received below Guideline sentences. In making Amendment 750 retroactive, the Sentencing Commission also adopted a new version of U.S.S.G. § 1B1.10, the policy statement governing “Reduction in Term of Imprisonment as a Result of Amended Guideline Range.” As amended, §1B1.10 provides that “the court shall not reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A) (Nov. 2011). The one exception is for defendants who provided substantial assistance to the government. § 1B1.10(b)(2)(B) (Nov. 2011). Before the 2011 amendments, the Guidelines permitted proportional reductions in sentence to account for departures of any kind, although they were discouraged when a below Guidelines sentence was based on a variance. § 1B1.10(b)(1)(B) (Nov. 2007). Here, neither defendant had cooperated and the District Courts denied sentence reductions below the amended Guideline range. The Third Circuit rejected the defendants’ three challenges to the binding policy statement in § 1B1.10. First, the Court found the Sentencing Commission had the statutory authority under the Sentencing Reform Act (SRA), 28 U.S.C. § 994, to limit the sentencing reductions in 3582 proceedings. Next, the Court found that the policy statement did not violate separation-of-power principles: it was not an impermissible delegation of legislative authority, nor did it infringe upon the exercise of judicial authority because the Commission was appropriately situated within the judiciary. Finally, the Court found that the Commission was not required to comply with the Administrative Procedure Act’s notice-and-comment requirements when issuing policy statements.