Judge’s Skeptical Questioning of a Pro Se Defendant/ Absence of Pro Se Defendant From a Sidebar Conference Outside of the Presence of the Jury

Ronald Ottaviano was indicted in the District of New Jersey for money laundering, tax evasion, wire fraud and conspiracy as a result of acting on his belief that he was not subject to the tax laws of the United States nor the penalties that flow from flouting them. At trial, he represented himself, and as described in United States v. Ottaviano, ___ F.3d. ___, Nos. 11-4553 and 13-1119 (3d Cir., December 24, 2013), initially was able, whilst being tried with four, counseled co-defendants, not to raise the ire of the trial judge. However, once the Government rested, and his defense began, his relations with the trial judge went downhill.

Ottaviano not only did not pay taxes, but operated a company that, for $3,500 (or $5,000 if purchased jointly by two persons), would file documents with federal and state governments that would purportedly turn the purchasing/participating taxpayer into a creditor of the government.  Ottaviano claimed to be a college and law school graduate, a CFP, and certified to represent taxpayers before the IRS, none of which was true. He also told his customers that the documents he filed on their behalf would satisfy all of their outstanding loans. 

Despite warnings that his scheme was illegal, Ottaviano forged ahead. Suspicious employees reported his activities to law enforcement, and the IRS also had its eye on him. It eventually searched his home, mailbox and office, seizing documents and computers.

The Government’s case was pedestrian but overwhelming, with proof of dummy computer servers for show for visitors to his company’s office while real computers conducting the company’s business were hidden away, and recorded phone conversations of Ottaviano’s both before arrest and from jail.

Ottaviano’s troubles at trial, other than the evidence the government presented, began when he tried to present his case.  He called 13 witnesses, but they had trouble showing up at the right day and time. By the fourth week of trial, the trial judge’s patience was wearing thin. His irritation began to show with skeptical questions during direct and cross-examination of Ottaviano’s clients. However, when Ottaviano himself took the stand, the trial judge became more aggressive. As his direct testimony began, while Ottaviano explained his work history, the judge asked, in a leading manner, whether he put on his resumé that he was a college graduate when he was not. At another point, when Ottaviano wanted to admit a letter into evidence that the government had not received, the judge excused the jury, as well as Ottaviano, and had a discussion with all counsel, including Ottaviano’s standby counsel. When the latter pointed out that legal issues were being discussed in Ottaviano’s absence while he was proceeding pro se, the judge said he had a reason for that. When Ottaviano resumed the stand, the judge began to question him skeptically and aggressively about the false education claims, and about Ottaviano’s testimony that he did not file tax returns and did not believe in federal tax liability. The judge asked many other similarly skeptical questions during Ottaviano’s testimony, which took up 140 pages of a 3300 page transcript. Although neither Ottaviano or his standby counsel objected during the questioning, Ottaviano, on the following day before the jury came in, move for a mistrial, complaining— not without reason— that the judge was cross-examining him. The judge, responding to this accusation, said that he did not think he acted inappropriately but in any event if he had not asked the questions, the government would have. Ottaviano was convicted, and appealed.

Otaviano raised four issues on appeal.  The Court first dealt with the judge’s questioning.  It began by noting that F.R.E. 614(c) allows for objections to a court’s calling or questioning a witness either at the time it occurs or the first opportunity when the jury is not present.  Terming it a close call, the Court, considering Ottaviano’s pro se status, combined with the fact that he moved for a mistrial at the start of the next day’s business, found that he properly preserved the issue for appeal, and that the Court did not have to move to a “plain error” analysis.”

F.R.E. 614(b) allows judges to question witnesses and act as more than a moderator, but in doing so, the judge cannot become an advocate.  Even when the evidence gives the court a negative impression of the defendant, the court cannot interject that impression into the trial. In this case, though some of Ottaviano’s testimony was confusing, and his testimony and actions could have infuriated a patient judge, this did not excuse the judge becoming an advocate. Ottaviano’s standby counsel and the government were fully capably of clarifying the points in issue without the judge’s help.

Despite the impropriety of the judge’s questions, as noted above, Ottaviano’s testimony was 140 out of 3300 pages of testimony. The evidence against him was overwhelming, the government had conducted an extensive cross-examination of Ottaviano before the judge’s improper conduct that demonstrated that there was no viable defense offered, and Ottaviano’s uninterrupted description of his activities was confusing. As a result, even though a curative instruction from the court did little to blunt the overall effect of the judge’s conduct, the improper questioning was immaterial to the verdict. On this ground therefore, Ottaviano did not receive a new trial.

Ottaviano’s forced absence from the courtroom while his standby counsel, the prosecutor, and the government discussed the letter he had failed to turn over before trial did not provide ground for a new trial either. The absence did not affect his ability to represent himself, nor the jury’s perception that he was doing so. Absence from a sidebar conference outside of the jury’s presence does not automatically deny the right of a pre se litigant of his right to represent himself— the incident must be viewed in the context of the entire trial. Violations of the right to represent oneself— that right arising from the 5^th, and 6^th Amendments and Fed.R.Crim.Pro. 43— do not result in a new trial if found to be harmless error. The Court so found here.

After summarily dismissing Ottaviano’s remaining claims— that the court’s jury instructions varied from the indictment, and there was no authority for a restitution order—the Court affirmed his conviction.    

Photograph, Beatles Taxman (jukebox release, 1966), from Official Beatles Jukebox 45’s (J. Whelan)

Supervised Offender’s Waiver of Legal Representation at Revocation Hearing Sufficient under Totality of the Circumstances Standard

In United States v. Manuel, No. 12-4258 (3d Cir., Oct. 17, 2013), Defendant pled guilty to conspiracy as well as the substantive offense of mail fraud, involving a scheme to defraud investors in Defendant’s non-existent financial assistance programs. He was sentenced to 71-months imprisonment and three years supervised release. While on supervised release, Defendant committed several infractions, including illegal drug use and unauthorized employment. During his second supervision revocation hearing, Defendant petitioned the court to allow him to represent himself. The court conducted a colloquy with Defendant and ultimately granted his request. The court also granted Defendant several continuances to allow him to obtain additional documents and witnesses. Defendant ultimately presented witness testimony from his substance abuse therapist and employees from a halfway house to which he had been sanctioned. Nonetheless, the court revoked his supervised release term and sentenced him to two, consecutive 16-month jail terms. Defendant appealed this revocation sentence, arguing that the court’s colloquy was insufficient under United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), and therefore his waiver of legal representation was ineffective.

The Third Circuit disagreed, interpreting Peppers to apply only to a defendant’s right to self-representation in a criminal prosecution, not a supervision revocation hearing. The court recognized that the case cited by Defendant, Morrissey v. Brewer, 408 U.S. 471 (1972), specifically states that the "full panoply of rights" afforded a defendant in a criminal prosecution do not apply to a supervision revocation proceeding. Therefore, as the Supreme Court ruled in Gagnon v. Scarpelli, 411 U.S. 778 (1973), there is not constitutional right to legal representation at a supervision revocation hearing. Instead, Federal Rule of Criminal Procedure 32.1 governs due process in the context of a supervision revocation hearing. Consequently, the court was not required to perform the 14-point inquiry enunciated in Peppers. The Third Circuit concluded that a defendant has been afforded due process in accordance with Rule 32.1 if his waiver of rights is knowing and voluntary under a totality of the circumstances standard. The Third Circuit interpreted this standard to require only that the court inform the defendant of the charges against him, the evidence supporting those charges, the penalties he faces, the rights he possesses and the consequences of relinquishing those rights. As the totality of the circumstances indicated that Defendant had knowingly and voluntarily waived legal representation, the district court did not err.

Sentencing Court May Require Defendant to Deliver Sworn Allocution

In United States v. Ward, No. 12-1511 (3d Cir., Oct. 15, 2013), Defendant was a professor emeritus at the University of Pennsylvania’s Wharton School of Business. In 2006, he allegedly traveled to Brazil in order to engage in sexual relations with two minors. Upon his return to Dulles International Airport, Defendant was found in possession of child pornography and charged in the Eastern District of Virginia. A search of his office at the University of Pennsylvania resulted in the discovery of more child pornography involving his Brazilian victims, as well as email communications with the children. Defendant also attempted to acquire a visa for one of his Brazilian minor victims by providing false information during the visa application process. Defendant subsequently was indicted in the Eastern District of Pennsylvania with shipping child pornography and lying to a federal official. This indictment was superseded to add two counts of sexual exploitation of minors under 18 U.S.C. § 2251(a). Defendant pled guilty to all charges. He received a sentence of 15 years imprisonment in the Eastern District of Virginia, and 300 months imprisonment, lifetime supervised release, and a $100,000 fine in the Eastern District of Pennsylvania. The fine was imposed instead of restitution apparently because the Brazilian victim who was still a minor could not be located. Defendant appealed his sentence from the Eastern District of Pennsylvania on several grounds, including the court’s imposition of a $100,000 fine instead of restitution, and the court’s failure to impose separate sentences for the counts in the superseding indictment. During the pendency of this appeal, Defendant continued to contact his Brazilian victims, one of whom had fathered children. Defendant attempted to contact those children as well. Defendant also committed several prison infractions.

At his resentencing in the Eastern District of Pennsylvania, the court allowed Defendant to make a statement, but insisted that Defendant do so under oath, despite defense counsel’s objection. Defendant expressed remorse for his actions and requested a shorter sentence, in light of his age and recent diagnosis of leukemia. The court ultimately resentenced Defendant to the same 300 months in prison, but increased the fine from $100,000 to $250,000, reasoning that Defendant’s continued unlawful behavior warranted the increase. Defendant raised several challenges in this second appeal, including what he believed to be the court’s denial of his right to deliver an unsworn allocution at sentencing. Defendant argued that Federal Rule of Criminal Procedure 32 afforded criminal defendants this right. The Third Circuit disagreed, interpreting Rule 32 to require only that the sentencing court personally address the defendant and also allow him to speak or provide mitigating evidence. The court concluded that the sentencing court’s decision to place Defendant under oath did not prohibit him from presenting information in accordance with Rule 32. The Third Circuit ultimately ruled that the decision to require a defendant to deliver a sworn allocution is within the district court’s discretion. The Third Circuit rejected Defendant’s remaining arguments on appeal and affirmed the second sentence.

After Descamps v. United States, Circuit Holds, Modified Categorical Approach Unaltered and Almendarez-Torres Undead

In United States v.Conrad Clinton Blair, No. 12-4427, the Court rejects an expansive reading of the Supreme Court’s recent decision in Descamps v. United States, 133 S. Ct. 2276 (2013). Instead, the Circuit holds, a district court considering whether predicate offenses were committed on different occasions may rely on information in the charging and plea documents regardless of whether that information was integral to an element necessarily found in support of the prior convictions.

Conrad Blair pled guilty in 1991 to four counts of first-degree felony robbery in violation of Pennsylvania law. His conviction on each count was entered on the same day. In his subsequent federal prosecution, the issue was whether this record triggered a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). That sentence is required when the defendant has “three previous convictions … for a … violent felony … committed on occasions different from one another.”

Blair first contended that the plea documents from his 1991 case left open the possibility that none of the counts could be deemed an ACCA predicate because he could have been convicted under 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(iii), which provides that a person is guilty of robbery if, in the course of committing a theft, he “commits or threatens to commit any felony of the first or second degree…” Since not all felonies of the first or second degree involve violence, this variety of Pennsylvania robbery would not be a “violent felony” within the meaning of ACCA. The Court rejected this argument based on a line at the bottom of each charging document labeled “felony committed or threatened,” on which appeared in Blair’s case the words “aggravated assault.” Reading “each charging document and guilty plea as a whole,” the Court concluded that these materials made it “clear” that Blair admitted to a robbery whose elements constituted a violent felony.

The Court also rejected Blair’s argument that the charging and plea documents could not be relied upon to conclude that each of the 1991 robbery counts was for an offense committed on a different occasion. Although the charging documents stated that the alleged robberies had been committed on three different dates, Blair submitted that this specification could not be consulted for purposes of the ACCA enhancement because the dates were not integral to any particular element of the offense. Accordingly, it could not be said that the commission of any robbery on the specified date was necessarily found by the court in adjudging Blair guilty as charged. See Descamps, 133 S. Ct. at 2288 (“[T]he only facts the court can be sure [were admitted or found by the jury] are those constituting elements of the offense — as distinct from amplifying but legally extraneous circumstances.”). That being so, Blair argued, the dates were not properly consulted in application of the “modified categorical approach” expounded in Descamps.

The Third Circuit rejected this argument under Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that “the fact of a prior conviction” is exempt from the usual rule that any fact essential to greater punishment must be charged in the indictment and found by the jury on proof beyond a reasonable doubt. Almendarez-Torres, the Court instructed, “has not been narrowed and remains the law.…  Descamps and [Alleyne v. United States, 133 S. Ct. 2151 (2013)] do nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions.”  Stating that “the date of an offense is integral to the fact of a prior conviction,” the Court held that the question of whether predicates were committed on “different occasions” is subject to determination by a judge based on factual matter in the charging documents.  In Blair’s case, the listing of different dates, victims, and locations for the separate robbery counts was sufficient to support the conclusion that the predicates were committed on different occasions.

GPS Searches Require a Warrant Based on Probable Cause, and the Good Faith Exception is Inapplicable in the Absence of “Immutable Authority or Information.”

The Supreme Court held in United States v. Jones, 132 S. Ct. 945 (2012), that attaching a GPS device to a suspect’s vehicle constitutes a search under the Fourth Amendment, because it is a trespass/invasion of personal property. In United States v. Katzin, No. 12-2548, the Third Circuit answered what the Supreme Court left open in Jones: that law enforcement must obtain a warrant based on probable cause before attaching a GPS device to a suspect’s vehicle. The Court had "no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle," finding that "a physical entry upon and occupation of an individual’s house or effects for purposes of ongoing GPS tracking" is "highly disconcerting." Notably, the Court suggested that the duration of the GPS tracking likely does not matter.

The Court rejected the government’s contention that warrantless GPS tracking is a "special needs case," or a case where the suspect has a diminished expectation of privacy, such as a probation search. The government also argued that warrantless GPS searches are permissible on a finding of reasonable suspicion. Finally, it argued that if the officers have probable cause, warrantless GPS searches should be permitted under the Fourth Amendment’s automobile exception. The Third Circuit rejected both of these arguments, explaining that a GPS search is an ongoing and much broader endeavor than a Terry stop or an automobile search.

Equally as important: the Third Circuit’s rejection of the government’s invocation of the Fourth Amendment’s good faith exception to the exclusionary rule. First, the agents did not act in good faith reliance on binding authority under Davis v. United States, 131 S. Ct. 2419 (2011). There was no binding Supreme Court or Third Circuit precedent when the agents attached the GPS device to Katzin’s van, and there was only a 3-1 circuit split in the government’s favor nationwide. The Third Circuit made clear that good faith reliance on binding precedent applies only when police reasonably rely on "seemingly immutable authority or information."

The Court also considered whether the exclusionary rule should be applied under the "cost of exclusion vs. benefit of deterrence" analysis. The Court concluded that suppression was required because deterrence was needed and can be achieved. Instead of erring on the side of caution, the agents deliberately bypassed the warrant process and made a "reckless" extrapolation of the law. The Court emphasized that police and prosecutors may not rely on "self derived" rules.

Finally, the Third Circuit rejected the government’s claim that the van’s passengers (Katzin’s brothers) had no standing to object to the vehicle stop. The government wanted the Court to analyze the stop of Katzin, based only on information gleaned through the illegal GPS search, separately from that of his brothers. The government argued that the stop of the brothers was properly based on the probable cause developed through the use of the information obtained during the GPS search. The Third Circuit held that under United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), the vehicle stop must be treated as a single incident implicating the Fourth Amendment rights of all three brothers. All three of the van’s occupants therefore had standing to challenge the stop, and the evidence was properly suppressed by the district court.

Absent Federal Interest, Witness Intimidation Charges Cannot Stand/ Use of 42 U.S.C. §2241 to Attack Federal Convictions/ Remedies For Defendants Who Prove That Caselaw Their Actions Are No Longer Unlawful

In United States v. Willie Tyler, No. 12-1275 (3d Cir, October 3, 2013), the Third Circuit applying recent decisions of the United States Supreme Court, remanded a case challenging a 1995 conviction for witness tampering for a determination if the defendant should receive a new trial or be discharged.

Willie Tyler, his brother, David Tyler, and Roberta Bell were implicated in the 1992 murder of a witness against David in an Adams County, PA drug crime trial. The witness, who had made controlled buys from David, was found shot dead on the day she was to testify against him. The brothers and Bell were subsequently tried for murder in state court, with Willie being convicted of witness intimidation, David convicted of murder, and Bell acquitted of all charges. In 1995, the federal government charged her with witness tampering and intimidation, and she was convicted and sentenced to life imprisonment. When Willie was released from prison in 1996, he was similarly charged and convicted.

The witness had been cooperating with a tri-county task force as well as a local police force. At the time of her death she was no longer engaged in undercover operations, but she had been giving state and local authorities information about ongoing illegal drug activities. While the witness knew of David Tyler’s interstate and international drug activities, local authorities had planned to debrief her on her complete knowledge of his activities, and her information might have led to an investigation that involved federal authorities. There was no evidence that she been assisting in any other federal investigation or prosecution.

Willie Tyler (hereinafter “Tyler”) was convicted of witness tampering and intimidation in 1996, and after a direct appeal resulted in a new trial, convicted of witness tampering by murder and by intimidation in violation of 18 U.S.C. §1512. Several challenges, both on direct appeal and collateral attack, followed, none of them disturbing the conviction. In December, 2009, he filed a pro se petition attacking his conviction on the ground that the Supreme Court’s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) rendered his conduct non-criminal. That case held that that certain “official proceeding” provisions of §1512’s witness intimidation subsection, §1512(b)(2)(A) and (B), require that the Government prove a “nexus” between the defendant’s conduct and a particular federal proceeding. While that petition was pending, the Supreme Court decided Fowler v. United States, 131 S. Ct. 2045, 2952 (2011), holding that an “investigation-related communication” provision of §1512’s witness murder subsection, §1512(a)(1)(C), required that there be a reasonable likelihood that a witness’s murder was intended to prevent communication with a federal law enforcement officer or judge. The District Court treated Tyler’s petition as if filed under 42 U.S.C. §2241. It dismissed the petition, and he appealed.

The Court began by discussing the applicability and availability of §2241 in this case. Since the enactment of 42 U.S.C. §2255, there has been little call for §2242 in the federal courts, but it remains available for limited cases where §2255 is inadequate or ineffective. Since the Third Circuit has “held that a § 2255 petition is ‘inadequate’ when a petitioner asserts a claim of ‘actual innocence’ on the theory that ‘he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision’ and our own precedent construing an intervening Supreme Court decision, but is otherwise barred from challenging the legality of the conviction under §2255,” §2241 was available in this case. To support a claim that under the new caselaw he is actually innocent, a defendant must show that in light of all of the evidence, it is more likely than not that no reasonable juror would convict him. The Court then went on to discuss, in light of the superceding Supreme Court cases, whether the evidence supported Tyler’s conviction.

First, the Court considered whether Tyler’s conviction for tampering with a witness could be sustained under §1521’s prohibition on killing a person who prevents the attendance, testimony or other participation of a person in an official proceeding— the “certain “official proceeding” provisions of §1512. Arthur Anderson required that there be a nexus between the defendant’s conduct and a foreseeable particular proceeding. A defendant who lacks knowledge that his actions will affect a foreseeable federal proceeding lacks intent to obstruct it. In this case, there was no evidence that there was a foreseeable federal proceeding. Federal authorities had not even been contacted about Tyler in connection with anything the murdered witness had been doing.  A post-Anderson case, United States v. Shavers, 693 F.3d 363 (3d Cir. 2012), vacated on other grounds  (i.e., sentencing grounds announced in Alleyne v. United States, 133 S. Ct. 2151 (2013)) by Shavers v. United States, 133 S. Ct. 2877 (2013), decided after the district court’s dismissal of Tyler’s §2241 petition, held that the Government was required to “prov[e] that the defendant contemplated a particular ‘official proceeding’ that was foreseeable when he or she engaged in the proscribed conduct.” The Government did not prove that against Tyler, so the Third Circuit directed the district court to provide Tyler with an opportunity to establish his actual innocence of charges he interfered with an official proceeding.

The Court next discussed Tyler’s conviction for tampering with a witness who foreseeably would have communicated with federal law enforcement officers— “investigation-related communication” provision of §1512. The Court did not see such proof in the record before it. The Government had not established a reasonable likelihood that the witness had communicated with or was likely to communicate with Government officers.  All it established was that the witness had communicated with a state law enforcement officer, who in turn was going to further debrief her and then determine whether he would contact federal authorities. The jury that convicted Tyler was told that to convict him it only had to find that the state official might contact federal officials— under Fowler, that was not enough.

Finally, the Court remanded the case with directions to the district court. On remand, the district court is to hold an evidentiary hearing at which Tyler can prove his innocence. If he wants, he can rest on the record, and the Government can present additional evidence to prove Tyler’s guilt under Arthur Anderson and Fowler. If Tyler establishes his innocence on both prongs of §1512, his conviction is to be vacated and he is to be discharged. If the district court concludes that Tyler established his innocence on either the official proceeding provisions or investigation related communication provisions, but not both, in light of the jury’s general verdict, it has to conduct a new trial based only on the legally valid theory still standing against Tyler.

Application of Guidelines Enhancement for Sophisticated Money Laundering Was Not Error Even Though The Defendant’s Acts Were Not Those Listed in Application Note

In United States v. Fish, No. 12-3109 (3d Cir. 10/1/2013), the Third Circuit considered the application of U.S.S.G. §2S1.1(b)(3), that enhances a guidelines score by two points for sophisticated money laundering.

The appellant, Mordchai Fish, was caught up in a scandal involving charities and rabbis in the Syrian-Jewish Community in northern New Jersey.  A government informant approached Fish, a rabbi, with what he claimed were proceeds from a counterfeit handbag operation, and over time, got Fish to launder over $900,000.  Fish took the money the informant gave him and turned it over to Jewish charities and rabbis, and returned it, ostensibly free of noticeable stain, less a 10% commission. The meetings with the informant took place at various locales.  Fish gave the informant several SIM cards for his cell phone. A co-conspirator of Fish told the informant, while the scheme was active, that the money came from the diamond and jewelry business, though it did not.

Fish pled guilty to a single count of money laundering, 18 U.S.C. §1956(h). The government agreed, as part of the plea, that the applicable offense level was 21, but it was free to argue at time of sentencing for a two level enhancement under §2S1.1(b)(3). The District Court accepted the recommendation of the pre-sentence report that the enhancement apply. Fish appealed.

The first issue the Court dealt with was the standard of review of the application of §2S1.1(b)(3). Because there was no dispute over the District Court’s factual determinations, the Court reviewed the application of the enhancement for clear error.

Applying that standard, it found none.  To effect the scheme, Fish used multiple outlets for cash exchanges, multiple couriers and other participants, and multiple locations. He and his conspirator used secrecy to conceal underlying aspects of the scheme. He attempted to evade detection by the use of codes and untraceable electronic devices. Fish used multiple sources of cash to launder the money. Fish argued that none of these acts fit the examples of sophisticated money laundering described in the application note. Those factors though, the Court ruled, were merely illustrative, and not exclusive. Fish’s acts involved several types of transactions and sophisticated attempts to cover them up. The District Court did not clearly err in applying the enhancement.

(Illustration from  http://www.rightrespect.org/2010/02/15/aiding-and-abetting-money-laundering-through-us-corporations/.)