A defendant cannot make a collateral challenge of a state sentence by challenging the reasonableness of his federal sentence.

            Appellant Raymond Anthony Napolitan challenged his federal sentence arguing that it was unreasonable to run the federal sentence consecutive to an invalid state sentence.  Napolitan was sentenced under a Pennsylvania state law that increased the mandatory minimum for sexual and simple assault, if committed with a firearm.  Under state sentencing procedure, the judge had to determine by a preponderance of the evidence if the defendant possessed a firearm and used it to frighten the victim.   That sentencing procedure was later determined to be unconstitutional following the Supreme Court decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which requires that a fact that may increase a statutory minimum sentence be proven beyond a reasonable doubt.

                In United States v. Napolitan, the Third Circuit held that an defendant cannot collaterally challenge a state court sentence as part of a federal sentencing challenge unless (1) he is raising a Gideon violation or (2) the applicable federal statute or sentencing guideline directly permits the collateral attack.  In reaching this decision the appellate court looked at the precedent established in Custis v. United States, 511 U.S. 485 (1994), where the Supreme Court held that a defendant cannot collaterally attack a state conviction through an appeal of a federal sentence.  The circuit court explained that it was illogical to allow a collateral attack on a state sentence via an appeal of a federal sentence, when similar collateral attacks on state convictions are prohibited.  Additionally, the Third Circuit noted that all other circuit courts to address this issue have reached the same conclusion, barring collateral attacks of a prior state sentence in a federal sentencing appeal, including the Second, Sixth and Ninth Circuits.  Finally, the appellate court reasoned that there were other ways for the appellant to challenge the state sentence including filing a habeas petition. 

 

Defendants can be civilly liable for damages to victims even after criminal restitution ordered.

            While Doe v. Hesketh, et al., No. 15-1381 (July5, 2016), is a civil matter, it could impact many who have been convicted of child sex offenses.  Defendant Mancuso pleaded guilty to a manufacturing child pornography charge.  At sentencing, the judge ordered $200,000 to be placed into a trust as restitution for the victim.  The victim later filed a civil lawsuit against Mancuso (along with other defendants who were dismissed for lack of personal jurisdiction) under 18 U.S.C. § 2255 – which provides a civil cause of action for minor victims of human trafficking, sexual assault and pornography offenses.  Victims can recover personal injury damages and the cost of the suit, including attorney fees.  Statutorily, damages are automatically deemed to be no less than $150,000.

            Third Circuit found that the criminal restitution order did not bar the later filing of the civil law suit under § 2255 and that collateral estoppel did not apply so that a new damages amount, higher than the $200,000 restitution, could be determined in the civil lawsuit.  There are statutory provisions allowing for criminal restitution to be reduced by the amount of civil recovery in order to prevent double recovery.   

No vindictiveness in one-month reduction on Johnson remand.

     In U.S. v. Nerius, 15-3688, 2016 WL 3003781 (3d Cir. May 25, 2016), Nerius was sentenced to a bottom-of-the-range 37 months as a career offender following conviction for impeding correctional employees and damaging property within prison.  On Johnson remand, Nerius was resentenced to 36 months, the top of the non-career offender range.  The Third Circuit rejected Nerius’s claim that the new sentence triggered a presumption of judicial vindictiveness and violated due process under North Carolina v. Pearce, 395 U.S. 711 (1969), because the Pearce presumption does not apply when the new sentence is less than that originally imposed.   The Court found the fact that the two sentences fell in different -in this case opposite- relative positions within the original and revised Guideline ranges to be irrelevant.

     Absent the presumption, an appellant must demonstrate “proof of actual vindictiveness” to support a claim of judicial vindictiveness.   Nerius did not raise a claim of actual vindictiveness.

Prostitute has Common and Apparent Authority to Consent to Search Room in Which She is Working

In United States v. Murray, No. 15-2054, 2016 WL 1697082 (3d Cir., April 28, 2016), Defendant challenged his conviction for distribution of crack cocaine and related offenses. In Murray, Bensalem police were investigating alleged prostitution in the area. Police had been informed by the owner of the at the Sunrise Motel that a suspected prostitute had been picked up at the motel by someone driving a green Cadillac. Police also received a tip on that same day from a woman named “Jessica Brown” that a man named “Mills” drove a green Cadillac. Ms. Brown informed police that “Mills” was currently residing at the Knights Inn, and he had drugs in his possession. During the evening on the same day that they had received these two tips, police observed a green Cadillac at a third motel, the Neshaminy Motor Inn. Police learned that the owner of the green Cadillac was Defendant, and he had rented one room at the motor inn. By this time, police also had learned that Defendant had rented two rooms at the Knights Inn, for which he paid cash and provided a copy of his driver’s license. As they continued their investigation, police observed the green Cadillac at the Knights Inn parked in front of one of the two rooms rented by Defendant. Officers also made contact with a woman, identified as “Jessica Burns,” inside the room rented by Defendant at the Neshaminy Motor Inn. Initially, Ms. Burns had asked an officer if he wanted a date. During the officers’ subsequent attempt to talk to Ms. Burns, she refused to do. However, Ms. Burns ultimately acquiesced, and informed the officers that she was in fact a prostitute, and she worked for the man who had rented the room. She also informed the officers that this man was a drug dealer who supplied her with drugs.

Eventually, Defendant arrived at the room at the Neshaminy Motor Inn in which police were interrogating Ms. Burns. The officers recognized Defendant from his driver’s license, and promptly frisked him. The search yielded keys to the two rooms Defendant had rented at the Knights Inn, as well as a cell phone and a large wad of cash. Based upon the statements elicited from Ms. Burns and the items recovered from Defendant’s person, police obtained search warrants for the two rooms at the Knights Inn and the green Cadillac. In one of the rooms at the Knights Inn, police recovered 192.4 grams of crack cocaine.

At the suppression hearing, Defendant argued that Ms. Burns possessed neither common nor apparent authority to consent to a search of the room at the Neshaminy Motor Inn. He also argued that the frisk of his person was illegal. The lower court found Ms. Burns’ testimony credible regarding her voluntary consent to search the room at the Neshaminy Motor Inn. The lower court also determined that Ms. Burns had common authority, or in the alternative apparent authority, to give consent to search the room. The lower court further ruled that the frisk of Defendant was lawful because police possessed the requisite reasonable suspicion to believe he was armed and dangerous. The lower court also determined that Defendant consented to the search of his person. The lower court ultimately concluded that the search warrants were lawfully issued.

Defendant entered a guilty plea, but preserved his right to appeal the lower court’s denial of his suppression motion. The Third Circuit upheld the lower court’s denial of Defendant’s suppression motion.  Specifically, the Third Circuit concluded that, based upon the facts as known to police at the time of the encounter, i.e., that Ms. Burns was a prostitute employed by Defendant, the officers reasonably believed that Ms. Burns had common authority, or at the very least apparent authority, over the room.  The Third Circuit also ruled that, based on the information police had obtained to that point, i.e, that Defendant was a drug dealer who ran a prostitution operation, the officers reasonably believed that Defendant would be armed and dangerous. Distinguishing United States v. Myers, 308 F.3d 251, 258 (3d Cir. 2002), the court concluded that a frisk inside one’s home is permissible if limited to the extent necessary to protect police and secure the situation. The court also ruled that, based upon the testimony of the arresting officer, Defendant had in fact given consent for police to search him.

Supreme Court Holds Johnson Retroactive to Cases on Collateral Review

Justice Kennedy authored the 7-1 opinion for the Court in Welch v. United States, holding that Johnson applies retroactively to cases on collateral review:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision [and therefore retroactive].

Three petitions for certiorari are pending, asking the next logical question:  whether Johnson is retroactive as applied to the Guidelines.  See, e.g., Alfrederick Jones v. United States, No. 15-8629, in which the National Association of Federal Defenders recently filed an amicus brief in support of the petition.

Supreme Court Holds Guidelines Error Alone Should Suffice to Show Prejudice

The Supreme Court reversed the Fifth Circuit in Molina-Martinez v. United States, No. 14-8913, maintaining the approach taken by the Third Circuit in reviewing Guidelines error.  In an opinion by Kennedy (joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan), the Court held:  "courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range.... [A] defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights."  The Court reasoned:  "From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used.  In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome."  In other words:  "When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant's ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." 

Alito, concurring (joined by Thomas), agreed with the result and that the Fifth Circuit's "rigid approach" is incorrect, but took issue with the majority's "speculat[ion]" about "how often the reasonable probability test will be satisfied in future cases."  He explained:  "The Court's predictions... are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate." 

 

Thanks to Laura Mate, Sentencing Resource Counsel, for this summary.

Police Officer Acted as Mere "Listening Post" in Hospital

Dellavecchia v. Secretary, PA DOC, No. 15-1833, decides a 6th Amendment right to counsel issue, which may come up in non-habeas contexts.  Judge Greenberg writes for a unanimous panel (joined by Jordan and Scirica). From the opinion:

On this appeal from an order denying a petition for a writ of habeas corpus we consider the Sixth Amendment right to counsel in an unusual set of circumstances. In September 2012, a state-court jury convicted appellant, James Dellavecchia, of first-degree murder, criminal attempt (homicide), three counts of recklessly endangering another person, and weapons-related offenses. At the trial, Lieutenant Scott Willoughby of the Ridley Township, Pennsylvania, Police Department, the lead officer investigating the crimes, gave testimony that is at the center of this opinion. In particular, Willoughby testified that Dellavecchia made an incriminating statement immediately following a bedside arraignment conducted while he was hospitalized for a self-inflicted head injury on the day following his arrest for the commission of the offenses.

It is undisputed that when Dellavecchia made his statement without counsel present and without having been given Miranda warnings, he had not waived the right to counsel. Thus, as the case law we discuss below demonstrates, the dispute concerns whether Willoughby deliberately elicited Dellavecchia’s statement or was a mere “listening post” when Dellavecchia, spontaneously and without prompting, volunteered incriminating information.

We conclude that Willoughby did not deliberately elicit Dellavecchia’s statement and consequently did not violate Dellavecchia’s Sixth Amendment right to counsel. We also conclude that the evidence at the trial, even disregarding Dellavecchia’s statement, overwhelmingly supported his convictions and thus, even if his Sixth Amendment rights had been violated when he gave the statement, the ensuing error when Willoughby recounted the statement at trial was harmless. Therefore, we will affirm the District Court order denying Dellavecchia’s petition for habeas corpus.

This is what Det. Willoughby testified happened:

[A]s soon as District Justice Gallagher arraigned the Defendant he turned and started to walk out of the room. Mr. Dellavecchia asked me who are you. I introduced myself as Lieutenant Scott Willoughby from the Ridley Township Police Department. I told him I was in charge of the investigation, at which time he asked me to sit. I sat. He put out his hand. I shook his hand. And he stated this. I really fucked up. He asked me to sit down. And he says Scotty, I want to tell you what happened. I sat in the chair and Mr. Dellavecchia began to talk freely and openly.

 

Willoughby said he'd not planned to interrogate defendant and so forgot to bring his Miranda form. He said he did tell Dellavecchia that anything he said could be used against him. He claimed he sat and listened, taking notes, while Dellavecchia gave an uninterruped narrative. He knew that Dellavecchia's son had retained counsel for him.

 Dellavecchia testified at trial that Robins was the aggressor in an encounter in which he acted in self defense. His statement to the police did not include the self-defense aspects.

Greenberg, applying Massiah v. United States, Brewer v. Williams, US v. Henry, and Kuhlmann v. Wilson, asks whether Willoughby "deliberately elicited" Dellavecchia's statement in contravention of his right to counsel, which had attached after he was arraigned in the hospital. Willoughby, he finds, did nothing but listen to Dellavecchia's "spontaneous and unsolicited" statement. In contrast to Brewer, the state courts found that he did not go to the hospital intending to question the defendant. Without employing a specific AEDPA presumption of correctness analysis, Greenberg indicates that the federal court has no basis to reject that finding. Furthermore, Willoughby told Dellavechhia that anything he said could be used against him. Greenberg sees this as an indication that W. did not elicit D's statement but in fact encouraged him to keep silent.

Because of the lower court's "unassailable" findings on the motion to suppress, the Superior Court's ruling rejecting the claim was not an unreasonable application of the Massiah line of cases. He says in a footnote that even if the case was in a direct review posture the court would reach the same result. And he indicates that the admission of the statement was harmless error.

In a footnote, Greenberg does stress that police can only use a represented defendant's statement only if there is no elicitation.

Thank you to Claudia Van Wyk, EDPA, for this summary.

Plain Error Doyle Reversal

In US v. Victor Lopez, No. 14-4610, the Third Circuit vacates Lopez’s conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion is the latest in a string of Doyle violations found by the Third Circuit (United States v. Shannon, 766 F.3d 346 (3d Cir. 2014); Gov’t of Virgin Islands v. Davis, 561 F.3d 159 (3d Cir. 2009); Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998)). It is significant principally because trial counsel failed to object, therefore the appeal was on plain-error review. This is the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit held, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The jury posed several factual questions. The court notes: “It appears that the jurors struggled with their assessment of the credibility of the witnesses, sending six questions to the district court during deliberations.”

The Third Circuit (Vanaskie, J., for himself, McKee, and Jordan) holds that all of the prosecution's questions and statements at issue violated Doyle, even those that regarded Lopez’s failure to file a police misconduct report. In a footnote, the court reasona that those questions also raise the impermissible inference that a defendant’s assertion of his right to silence undermines his credibility.

On plain error review, the appellant must make a prejudice showing of a reasonable probability that the error affected the outcome. The Third Circuit finds prejudice for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “the government’s repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court describes the prosecution’s misconduct as “particularly egregious” given the previous Doyle precedent in the circuit. In the next footnote, the court thanks the appellate AUSA for candor. At oral argument, he conceded the Doyle error (although not prejudice), and promised to implement improved training to prevent such errors in the future. 

Thanks to Maria Pulzetti, EDPA (who litigated Lopez), for her assistance with this post.

Cross-examination of Allocution is Plain Error

In United States v. Moreno, No. 14-1568,  2016 WL 53796 (3d Cir., Jan. 5, 2016), Defendant was charged with wire fraud conspiracy, in violation of 18 U.S.C. §§ 1343, 1349 and 2, for his participation in a mortgage fraud scheme. Specifically, Defendant, an unlicensed appraiser, provided inflated appraisals to his co-conspirators who used them to secure loans for unqualified buyers. The jury returned a guilty verdict for all of the counts in the indictment. Defendant challenged his conviction on three grounds: violation of his rights under the Sixth Amendment Confrontation Clause, violation of his right to allocution, and error in application of a sentencing enhancement.

At trial, defense counsel impeached a government cooperator as coloring his testimony in exchange for sentencing concessions.  The prosecutor rehabilitated the cooperator by having him read into the record portions of memoranda written by a federal agent, documenting the cooperator’s proffer sessions.  The Third Circuit held this to be a Confrontation Clause violation, as the memoranda were statements of the agent rather than the cooperator, even though the memoranda purported to document the cooperator’s statements.  The Circuit found the error harmless, however, under the specific circumstances of this case.

The Third Circuit also concluded that sufficient evidence was presented at trial to support the application of the four-level sentencing enhancement for more than 50 victims under U.S.S.G. § 2B1.1(b)(2)(B). Specifically, the court determined that the evidence supported a finding  that Defendant had provided more than 110 fraudulent appraisals during the course of the mortgage fraud conspiracy, and that unsophisticated buyers either purchased the fraudulent appraisals or were induced to purchase properties at prices that were well above their true value.

Defendant also claimed that his right to allocution had been violated when the sentencing court permitted the prosecutor to cross-examine him during his allocution. Citing Federal Rule of Criminal Procedure 32, as interpreted by United States v. Ward, 732 F.3d 175 (3d Cir. 2013), cert. denied, 134 S.Ct. 2684 (2014), the Third Circuit determined allowing cross-examination of allocution is plain error because it is contrary to the purpose of allocution, i.e., to allow a defendant to personally address the sentencing court and present mitigating evidence. The court concluded that Defendant did not attempt to testify or challenge the facts of the case, which may have warranted cross examination. To the contrary, Defendant merely presented information about himself and his acceptance of responsibility. Consequently, the sentencing court committed plain error in allowing to prosecutor to conduct the cross-examination during allocution in contradiction of clear authority, namely Rule 32 and Ward. Allocution error is presumed prejudicial on plain-error review, but the Court noted that there was evidence of actual prejudice here. Both the prosecutor and the sentencing court relied upon Defendant’s responses to the cross-examination during allocution in recommending and fashioning his sentence.

The Third Circuit also noted that even if the sentencing court had not committed plain error, the Court would have invoked its supervisory authority to prohibit cross-examination during allocution.

United States v. Doe, No. 13-4274, Opinion Published Then Vacated.

This case concerns an appeal from the denial of a 28 U.S.C. §2255 motion filed in 2012 and a request to reopen a separate §2255 motion filed in 2008.  Petitioner was sentenced in federal court in 2003, under the then mandatory Sentencing Guidelines, as a career offender. The procedural and legal history of the case are especially complex, and the case presents a number of procedural and jurisdictional questions, including disputes over statute of limitations, retroactivity, collateral review, and mootness. The Third Circuit published an opinion on this case on December 9, 2015, remanding the case for further proceedings.  However, the Court subsequently vacated the opinion and granted a petition for rehearing.  A new opinion will be filed following rehearing. 

http://www2.ca3.uscourts.gov/opinarch/134274po1.pdf
http://www2.ca3.uscourts.gov/opinarch/134274p1.pdf

Court denies suppression challenge, finding shareholder and corporate executive did not have reasonable expectation of privacy in employees' offices, employees' computers, or electronic files located on network server, but reverses and remands for new loss calculation in government contracts fraud case

In a matter of first impression, the Court, in United States v. Nagle, Nos. 14-3184, 14-3422 (3d Cir. Sept. 30, 2015), held that defendant, a shareholder and corporate executive, did not have a reasonable expectation of privacy in his employees' offices, employees' computers, or the electronic files located on the company's network server, as required to challenge the search and seizure of the corporate offices.

Defendants Nagle and Fink were co-owners and executives of concrete manufacturing and construction corporations specializing in state highway construction and mass transit projects. The defendants devised and executed a scheme to defraud the United States Government by obtaining subcontracts set aside for disadvantaged business enterprises (DBE). During the execution of two search warrants at the corporations' compound, eleven employee computers plus the network server were seized and imaged. Defendant Nagle moved to suppress the electronic evidence recovered during these searches. The District Court denied the suppression motion, holding that, while Nagle may have had an expectation of privacy in his official capacity as an officer and executive of the companies, Nagle had no personal expectation of privacy in the seized information.

Following a string of cases from other circuits, the Third Circuit ruled, as a matter of first impression, that a shareholder or company executive may not challenge a search of corporate property based merely on his status as a shareholder or executive. He may only challenge the search if he shows some personal connection to the places searched and material seized and protected those places or materials from outside intrusion. Here, Nagle failed to show that he used the employees' offices or computers or that he ever accessed other employees' emails or files on the network server. Accordingly, because Nagle failed to show a personal connection to the computers or files, he had no reasonable expectation of privacy in those items and no basis to move for suppression.

Turning to the loss analysis, the defendants challenged the District Court's determination that they were responsible for the face value of the DBE contracts received without any credit for actual work performed on the contracts. The Third Circuit disagreed, finding that the amount of loss Nagle and Fink were responsible for was the face value of the DBE contracts minus the fair market value of the services they provided under those contracts. The Court found that such an offset would be due regardless of whether it applied U.S.S.G. §2B1.1 Application Note 3(A) (standard loss definition) or Note 3(F)(ii) (special application note for loss in "government benefit" cases). Accordingly, the Court vacated the defendants' sentences and remanded for a new loss calculation applying the appropriate credit for the fair market value of the services rendered under the contracts.

“Innocent Round Trip” Exception Not Applicable to Violation of 18 U.S.C. § 2423(b)

In United States v. Schneider, Nos. 12-1145 and 13-1491, 2015 WL 5235131 (3dCir., Sept. 9, 2015), Defendant was charged with one count of traveling in foreign commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (2000), and one count of transporting an individual in foreign commerce with the intent that such individual engage in illegal sexual activity, in violation of 18 U.S.C. § 2421 (2000).

Defendant was an American attorney and philanthropist who initiated a sexual relationship with an underaged ballet dancer from Russia whom he sponsored. Defendant met the young dancer when he was 12 years old. By the time the dancer was 14 years old, he and Defendant were living together in Moscow. Defendant and the young ballet dancer traveled between the United States and Russia twice to allow the young dancer to study ballet. Eventually, the dancer’s family learned about the relationship and filed a civil suit against Defendant in 2009. However, when law enforcement officials learned about the relationship, the civil suit was stayed and federal criminal charges were filed against Defendant in 2010.

At trial, the jury convicted Defendant of the traveling charge under § 2423(b), but found Defendant not guilty of the transporting charge under § 2421. The jury based its acquittal on the “innocent round trip” exception to § 2421, as enunciated in Mortensen v. United States, 322 U.S. 369 (1944). Defendant appealed his conviction under § 2423(b) on several grounds.

Defendant challenged the trial court’s refusal to apply the “innocent round trip” exception to his transporting charge under § 2423(b). As a matter of first impression in the Third Circuit, the court ruled that the “innocent round trip” exception did not apply to a charge of transporting under § 2423(b) . In Mortensen, the defendants operated a brothel. On one occasion, the defendants took a vacation, accompanied by two women employed at the brothel. However, no illegal sexual conduct occurred during the vacation. The Supreme Court concluded that the trip at issue was a “complete break or interlude” in the illicit sexual  activity. As the trip was “not undertaken for immoral ends,” it did not violated § 2421.

Defendant argued that the court should interpret § 2421 and § 2423(b) similarly. While both statutes involve traveling with the intent or purpose to engage in illegal sexual activity, the court concluded that the prohibited conduct under each statute was sufficiently dissimilar. Specifically, the Third Circuit ruled that, unlike the trip in Mortensen, Defendant’s trips did not constitute a “complete break or interlude” in the illicit sexual conduct. To the contrary, the court concluded that Defendant hosted the trips as part of his ongoing scheme to maintain his sexual relationship with the young ballet dancer.

The Third Circuit also upheld the trial court’s denial of Defendant’s motion to dismiss the indictment as untimely under the federal statute of limitations, concluding that Defendant’s conduct fell under the exception provided by 18 U.S.C. § 3283, which extends the statute of limitations for child sexual abuse offenses. The Third Circuit rejected Defendant’s challenge to the trial court’s refusal to admit evidence regarding his inability to seek proper medical treatment for a non-life threatening condition during his pre-trial incarceration. The Third Circuit also upheld to the trial court’s admission of excerpts from a film which Defendant had shown to the young dancer/victim, depicting a similar relationship between a young dancer and an older patron. The Third Circuit also concluded that Defendant had not met his burden to prove newly discovered evidence regarding the victim’s deposition testimony from the civil suite required a new trial. The Third Circuit also upheld the lower court’s application of the cross reference under U.S.S.G. §§ 2A3.2(c)(1) and 2A3.1, related to child sexual abuse offenses.  

Court examines White v. Woodall, reaffirms grant of habeas relief due to Bruton violation.

Washington v. Secretary, No. 12-2883, 2015 WL 5103330 (3d Cir. Sept. 1, 2015),

In an opinion by Judge Fisher, the panel reaffirms its earlier decision granting habeas relief because of a Bruton violation.  At Washington's trial, the prosecution introduced a statement by his codefendant that redacted Washington's name and replaced it with generic terms.  One codefendant, Taylor, testified that Washington was the driver, who stayed in the car while two other accomplices entered, shot and killed two store employees, and stole cash from a safe.  Taylor claimed Washington entered the store following the shootings and helped remove the cash.  Taylor testified at trial and was impeached on cross-examination.  Then a detective read a redacted version of the confession of a non-testifying codefendant, Waddy, in which Washington's and a fourth defendant's names were replaced with phrases like "they guy who went into the store" and "the driver."

 
The district court and the 3d Circuit granted habeas relief, relying on the combined holdings of Bruton, Richardson v. Marsh, and Gray v. Maryland for the proposition that no reasonable reading of those cases can tolerate a redaction that would be "transparent to the jurors."  Here, the redactions were transparent because Taylor had explicitly identified Washington as the driver.

The Supreme Court granted certiorari, vacated, and remanded for further consideration in light of White v. Woodall(which held that a state court decision merely declining to "extend" a SCTOUS precedent cannot be an unreasonable application of clearly established federal law under AEDPA).

 Judge Fisher acknowledges how difficult the AEDPA "unreasonable application" test is to meet, and stresses that "applying a general standard to a sepcific case can demand a substantial element of judgment," requiring deference by habeas courts.  In his reading, the distinction between Richardson v. Marsh, which upheld the use of a redacted confession, and Gray v. Maryland, which disapproved it, was that in Richardson the redactions removed all mention of the existence of the nonconfessing defendant.

 

“Taken together, the current state of the law is that there is a Confrontation Clause violation when a non-testifying codefendant’s confession is introduced that names another codefendant, Bruton, 391 U.S. at 126, or that refers directly to the existence of the codefendant in a manner that is directly accusatory, Gray, 523 U.S. at 193-94. That is because such statements present a ‘substantial risk that the jury, despite instructions to the contrary, [will] look[] to the incriminating extrajudicial statements in determining [the defendant’s] guilt.’ Bruton, 391 U.S. at 126. But there is no violation if the confession is properly redacted to omit any reference at all to the codefendant, making it more likely that the jury will be able to follow the court’s instruction to disregard this evidence in rendering its verdict. Richardson, 481 U.S. at 208, 211. It is against this background that we assess whether the Pennsylvania Superior Court unreasonably applied clearly established federal law.” 

In Fisher's view, this is not a “close call” case that is subject to “fairminded disagreement.”  The Superior Court applied a blanket rule providing that a redaction was permissible as long as the jury had to apply an additional piece of information outside the confession to link it to the nonconfessing defendant.  This rule is "not a reasonable view of the law."

 

Fisher goes on to explain why, in contrast to Woodall, the state court ruling was not a mere refusal to extend the Bruton rule to a new context.

 

Thanks to Claudia Van Wyk, for providing this summary.

 

Habeas relief affirmed: government concedes unreliable fire-science and chromatography evidence has been discredited and Court finds remaining evidence not sufficiently “ample” to prove arson and murder beyond a reasonable doubt

In Han Lee v. Superintendent Houtzdale SCI, the Third Circuit affirmed habeas relief (under 28 U.S.C. § 2254) granted to a father who spent 24 years in prison for allegedly setting a fire that killed his daughter. 

First, the Court accepted the case on the merits, rejecting procedural challenges to the appeal. A notice of appeal is delivered when received by the clerk, regardless of when it was officially filed. (discussing Fed.R.Civ.P. 5(d)(2)). A notice of appeal is valid so long as it specifies the appealing party, designates the judgment being appealed, and names the court to which the appeal is taken, even if it violates a local electronic filing requirement. (citing Fed.R.App.P. 3(c)(1)). 

 The Court then reviewed magistrate’s report and recommendation for plain error, without AEDPA deference, consistent with the law of the case.  See Lee v. Glunt, 667 F.3d 397, 400–03 (3d Cir. 2012).  The magistrate found that Lee had shown “that the admission of the fire expert testimony undermined the fundamental fairness of the entire trial because the probative value of [that] evidence, though relevant, [was] greatly outweighed by the prejudice to the accused from its admission.” Lee, 667 F.3d at 403.  The Commonwealth conceded that the basis for fire-science and gas-chromatography evidence has now been discredited.  The Court found that the remaining evidence was not sufficiently “ample” to prove arson and murder beyond a reasonable doubt.  That evidence was: (1) alleged inconsistencies in the Korean-to-English interpretation of statements made by Lee in the hours following his daughter’s death, (2) a cultural stoicism construed as nonchalance, and (3) autopsy results which posited two alternate theories of cause of death, one wholly consistent with death in an accidental fire, and the other (strangulation) which had very little forensic support.

Martinez v. Ryan does not apply to excuse procedural default caused by attorney error at the state collateral appeal stage.

In Norris v. Brooks,No. 13-4448, the Court addressed a Rule 60(b) motion filed by a 2254 habeas petitioner who claimed that the case of Martinez v. Ryan, 132 S.Ct. 1309 (2012), called for the reopening of his federal habeas petition, previously denied in 2007.

Procedural background in Norris:

            In his state PCRA proceedings, Norris raised a claim of ineffective assistance of trial counsel (“IAC trial counsel”) for failing to move to dismiss on rule based and constitutional speedy trial grounds.  PCRA counsel raised the IAC trial counsel claim (poorly, citing the wrong dates) in the initial PCRA petition and then abandoned the claim, over Norris’s strenuous objections, on PCRA appeal.  Norris sought review of his IAC trial counsel/speedy trial claim in a 2254 federal habeas petition.  The federal habeas court denied his petition finding that the claim was procedurally defaulted because it was not raised at the PCRA appeal level. 

A recap of Martinez:

In Martinez v. Ryan, SCOTUS held that, under certain circumstances, attorney error at the initial collateral review stage could constitute cause for the procedural default of an IAC trial counsel claim in a federal 2254 proceeding.  For example, in Pennsylvania, the first time a defendant can claim IAC trial counsel is in a PCRA petition.  If the defendant fails to raise an IAC trial counsel claim in the PCRA petition, then the claim is normally considered procedurally defaulted and federal habeas court cannot review the claim.  Under Martinez, if the reason that the trial counsel-IAC claim was not presented in the initial PCRA petition was due to ineffective assistance of PCRA counsel, then it is possible that the PCRA counsel’s error constitutes cause and excuse for the procedural default and the federal habeas court may be able to review the trial counsel-IAC claim even though it was never presented in state court.  In this way, Martinez overruled Coleman v. Thompson, 501 U.S. 722 (1991).

Raising Martinez via Rule 60(b)(6) motions:

            Fed.R.Civ.Pro. 60(b)(6) allows for relief from civil judgments in “extraordinary circumstances.”  The question of whether SCOTUS’s decision in Martinez could constitute extraordinary circumstances allowing for the reopening of a federal habeas petition which had previously been denied due to procedural default under Coleman was addressed by the Third Circuit in Cox v. Horn, 757 F.3d 113 (3d Cir. 2014).  In Cox, the Court held that while Martinez, by itself, did not constitute extraordinary circumstances allowing for the re-opening of a federal habeas petition under Rule 60(b)(6), Martinez, in conjunction with other equitable factors, could potentially merit Rule 60(b)(6) relief.

No relief for Norris:

            The problem for Norris was that the procedural default of the IAC trial counsel-speedy trial claim occurred at the PCRA appeal level (according to the original federal habeas court) and not at the initial PCRA proceeding.  Because Martinez explicitly applied only to claims that were procedurally defaulted at the initial PCRA stage and not at the appellate stage, Norris’s appeal was denied. 

Doyle Error Not Harmless in Credibility Contest Between Cooperator and Accused

In United States v.Jace Edwards, No. 14-4088, the Court remands for a new trial following the government's concession that the trial prosecutor had violated the constitutional rule of Doyle v. Ohio, 426 U.S. 610 (1976).  As restated in contemporary Third Circuit precedent, that rule prohibits the prosecutor from causing the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence after the defendant has been Mirandized.  On appeal, the government’s sole contention was that the trial prosecutor’s misconduct was harmless.

The Court easily dispatches of the government's contention.  Though the prosecution was founded on a controlled delivery, the Court explains, the trial boiled down to a credibility contest between the defendant and a cooperating witness.  Despite “some evidence suggesting that [the defendant’s] exculpatory story was not plausible,” there was no way to say the verdict “was surely unattributable to the error.”  Accordingly, the government had failed to "prove[] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained," as required to establish that constitutional error was harmless.  Along the way, the Court lays stress on “the District Court’s belated and ineffective curative instruction,” noting that the court initially overruled defense counsel’s objection to the prosecutor’s improper closing argument, and that language elsewhere in the charge approved consideration of “any statements made and acts done or omitted by the defendant.”  Quoting its earlier criticism of this language in United States v. Waller, 654 F.3d 430 (3d Cir. 2011), the Court notes that “jurors were invited by the District Court to consider the statements that [the defendant] failed to make.”

Court Clarifies Mental State Requirement for 'Color of Official Right' Extortion, Rejects Challenges to 'Sophisticated Means' Enhancement

In United States v.Fountain, Nos. 13-3023 &c., the Court finds occasion to clarify the elements of extortion under “color of official right” within the meaning of the Hobbs Act, 18 U.S.C. § 1951.  The three appellants were found guilty after a two-week trial of participating in a tax refund scam.  A Hobbs Act count named only one defendant, an IRS employee who drew upon her knowledge of internal auditing procedures to avoid the red-flagging of fraudulent applications for certain tax credits.  The applications were submitted using personal information supplied by third-party claimants in exchange for a portion of the refunds.  The Hobbs Act count rested on one claimant’s agreement to pay $400 to the IRS employee in the belief — on the government’s theory — that it would help the claimant obtain the refund and avoid an audit.

Distinguishing certain broad language in two prior opinions, the Court (per Krause, J., joined by Fuentes and Fisher, JJ.) holds that to prove extortion under color of official right, the evidence must show: “(1) that the payor made a payment to the defendant because the payor held a reasonable belief that the defendant would perform official acts in return, and (2) that the defendant knew the payor made the payment because of that belief.”  (Emphasis supplied.)  That some earlier decisions had not explicitly referenced the italicized mental state requirement, the Court explains, reflects only that the reasonableness of the payor’s belief was uncontested and obvious in those cases.  Applying the clarified standard, the Court upholds conviction based on the $400 payment despite what the IRS employee submitted was insufficient evidence as to the claimant’s state of mind in making it.

The Court also upholds a bevy of sentence enhancements.  It first rejects challenges to the two-level enhancement for “sophisticated means” under the fraud guideline at U.S.S.G. § 2B1.1.  The enhancement can apply, the Court concludes, based on conduct “less sophisticated” than the examples set forth in a guideline application note referencing “the use of fictitious entities, corporate shells, or offshore financial accounts.”  While the opinion proceeds to reiterate that the sophisticated-means enhancement requires conduct showing “a greater level of planning or concealment than a typical fraud of its kind,” the ensuing analysis states that “factors like the duration of a scheme,” the “number of participants,” and “efforts to avoid detection” may be relevant.  Nonetheless, the Court also points to reliance on specialized expertise, as in the IRS employee’s use of “inside knowledge of the IRS’s enforcement thresholds” and another defendant’s electronic filing of claims in a manner traceable only to a third party’s wireless network.

The Court also rejects more fact-specific challenges to enhancements for use of a minor, see U.S.S.G. § 3B1.4, aggravating role, see id. § 3B1.1(a),  loss amount calculation, see id. § 2B1.1(b)(1), and substantive reasonableness, see 18 U.S.C. § 3553(a).  As to role, the Court firms up the rule that the defendant must have exercised “some degree of control over at least one other person involved in the offense.”  Regarding reasonableness review, the Court repeats what it has occasionally described as a rule that “[s]entences that fall within the applicable Guidelines range are more likely to be reasonable than those that do not.”  Of course, district courts may not indulge any such presumption when sentencing in the first instance.  Nelson v. United States, 555 U.S. 350 (2009).

Officers did not have reasonable suspicion at the moment of seizure.

In United States v. Shawn Lowe, No. 14-1108, ___ F.3d. ___, 2015 WL 4032921 (3d. Cir. July 2, 2015), the Third Circuit reversed the district court's denial of Lowe's suppression motion, finding that the district court had erred in determining the moment of seizure during a Terry stop.  The Court explained:

Here, three marked police cars nearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformed police officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commanding them to show their hands. . . .  [T]he record indicates that [the officers] arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave.

 

The Court also determined that Lowe submitted to the show of authority. The seizure was effectuated when he did not flee, did not make any threatening movement or gesture, and remained stationary.  Lowe's "few startled steps back in the face of onrushing, armed police officers is entirely consistent with a surprised reaction and even acquiescence" and did not amount to flight. 

Prosecutorial Conduct, Response to Jury's Request and Evidentiary and Sentencing Issues Denied by Circuit

In United States v. Kolodesh, No. 14-2904 (3d. Cir. May 28, 2015), the Third Circuit affirmed the district court’s sentence of 176 months’ imprisonment, three years supervised release, and an order for $16.2 million in restitution.

Kolodesh, who co-owned Home Care Hospice, Inc., appealed his conviction of one count of conspiracy to defraud a health care benefit program (18 U.S.C. § 1349), twenty-one counts of health care fraud (18 U.S.C. § 1347), two counts of mail fraud (18 U.S.C. § 1341), and eleven counts of money laundering (18 U.S.C. § 1957) based on his company’s involvement in a Medicare fraud scheme.  Kolodesh and his co-workers falsified records to show that patients were eligible for continuous Hospice care that the patients never received, gave doctors kickbacks, gifts, and cash for referrals, and even put some doctors on the company’s payroll with sham job titles.  Kolodesh’s company also submitted fraudulent claims for Medicare reimbursement, which constituted 90% of their revenue.

On appeal, Kolodesh alleged prosecutorial misconduct, evidentiary issues, errors in responding to a request from the jury, and in sentencing.

Prosecutorial Misconduct

 

The first allegation of prosecutorial misconduct involved wiretap recorded conversations of Kolodesh talking about opening a Swiss bank account but avoiding one specific Swiss bank because “[it] reports everything to the American government.”  The Court of Appeals found that the district court did not err by allowing the government to refer to this recorded conversation of the defendant because he did not object, and, the recording was relevant.

 

The second allegation of prosecutorial misconduct involved a translated wiretap and testimony about Russian stereotypes.  FBI wiretaps recorded Kolodesh stating he had to “f*** them [Medicare] over this time, one more time .…” Kolodesh argued that the statement was inaccurately translated from Russian to English, and that it was irrelevant.  The Circuit found that the government did not commit prosecutorial misconduct by eliciting testimony about Russian stereotypes because the statements were innocuous and volunteered by the witnesses without government suggestion.

Evidentiary Issues

The Third Circuit found the district court erred by not allowing Kolodesh’s wife to testify that he was home and very ill during some of the years in question.  However, the Court ruled the error was harmless, as other testimony indicated that Kolodesh met with co-workers via phone and at his home while he was ill.

Kolodesh’s former co-workers and co-conspirators pled guilty and testified for the government.  The Court held it was not error to admit testimony of their uncharged acts of fraud because they were not offered to show Kolodesh’s character as a defrauder, but rather as circumstantial evidence of his knowledge of fraudulent activity at the company.

The Court of Appeals also held that the district court did not err in allowing the previously discussed recorded conversation about Kolodesh’s Swiss bank account to be introduced into evidence as the evidence’s probative value substantially outweighed its prejudicial effect.

Response to Jury’s Request

The jury requested the testimony of certain government witnesses at various times during deliberations.  The district court told the jury that, if possible, they should continue their deliberations while the audio recordings and transcripts were prepared.  Two hours later, before the recordings and transcripts were delivered, the jury returned a verdict.  The Third Circuit found that the district court acted properly in instructing the jury that they could wait for the transcripts or continue deliberating using their recollection.

Sentencing

The Court of Appeals held that the district court did not err in determining that the government proved a $16.2 million loss due to Kolodesh’s fraud because witnesses were competent to testify to the amount of loss.

The Court also held that the district court did not err in holding Kolodesh jointly and severally liable for the full amount of loss since no atypical situation had occurred.

Kolodesh objected to the four-level sentencing enhancement for his role as an organizer or leader of fraudulent activity.  The Third Circuit found no error and upheld the sentencing enhancement.

Kolodesh likewise objected to the two-level adjustment for obstruction of justice.  The Court of Appeals upheld the enhancement because Kolodesh pointed to nothing in the record indicating error.

The Court held that the district court did not err in deciding that Kolodesh was an appropriate candidate for a lengthy incarceration because the BOP was fully capable of provide adequate medical care for him.

The Circuit also held that a lengthy prison sentence combined with restitution was not substantively unreasonable because the restitution merely served to make the government whole and the district court imposed a sentence below the applicable guideline range.

Many thanks to Law Clerks Robert K. Lavelle and Anne Yoskoski who prepared this post.

Fifth Amendment Privilege Against Self-Incrimination Inapplicable to Corporate Custodian Under Collective Entity Doctrine

In In re: In the Matter of the Grand Jury Empaneled on May9, 2014, 2015 WL 2262650, No. 15-1264 (3d Cir., May 15, 2015), a clinical blood laboratory in New Jersey had been charged with bribing area doctors to refer their patients to the lab for blood testing. Two of the defendants, a medical doctor and his incorporated medical practice, were charged with accepting said bribes. A grand jury subpoenaed the custodian of records for the medical practice seeking to obtain documents related to, inter alia, the medical practice’s patient list and corporate records. The medical practice initially maintained a staff of six; however, due to financial difficulties arising as a result of the instant matter, the doctor was forced to terminate the staff. Consequently, the doctor ultimately served as the sole owner and employee of the medical practice, as well as its custodian of records. The doctor moved to quash the grand jury subpoena, arguing that compelled disclosure of the corporate records would violate his Fifth Amendment privilege against self-incrimination. He also argued that the subpoena was overbroad. The district court denied his motion, ruling that a corporation may not assert the Fifth Amendment privilege. The court also ruled that the subpoena was not overbroad.  Nonetheless, the defendants, i.e., the doctor and the medical practice, refused to comply with the subpoena. The district court ultimately found the defendants in civil contempt.  

The Third Circuit ruled that the district court’s refusal to quash the subpoena was not an abuse of discretion. The court applied the “collective entity” doctrine, as enunciated in Bellis v. United States, 417 U.S. 85 (1974), and Braswell v. United States, 487 U.S. 99 (1988), to determine that, as a representative of a collective entity, the corporate custodian acts on behalf of the corporation, which may not assert the Fifth Amendment privilege itself. The Third Circuit adopted the Supreme Court’s reasoning in rejecting the “act-of-production” doctrine, which focused on the communicative nature of compelled disclosures and their potential to personally incriminate the corporate custodian.  The Third Circuit concluded that a corporate custodian may not enjoy the benefits of incorporation without also enduring its attendant burdens.  

The Third Circuit also determined that, as a grand jury traditionally possesses broad investigatory powers, a grand jury subpoena is valid if it merely identifies materials which could reasonably contain information that is relevant to the government’s investigation. The Third Circuit concluded that the district court properly had ruled that subpoena at issue was sufficiently specific.