Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017), http://www2.ca3.uscourts.gov/opinarch/163268p.pdf, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively discharged by revocation in Florida and Florida would not have jurisdiction to discharge the Virgin Islands supervised release absent formal transfer of supervision under 18 U.S.C. § 3605. The Third Circuit also found that the inaction of the Probation Office in the Virgin Islands in supervising Johnson in Florida did not cut short the District Court’s jurisdiction over revocation of supervised release.

Remand for evidentiary hearing on trial counsel's ineffectiveness regarding co-defendant's statements to a psychiatrist being used for their truth against defendant

In Lambert v. Warden, 2017 WL 2784960 (June 28, 2017), http://www2.ca3.uscourts.gov/opinarch/161209p.pdf, the Third Circuit held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that trial counsel was ineffective, see Martinez v. Ryan, 132 S.Ct. 1309 (2012), and remanded for an evidentiary hearing. This case proceeded through trial in Pennsylvania, direct appeal, habeas petition in Pennsylvania (PCR), habeas petition in federal court under 28 U.S.C. § 2254, and was before the Third Circuit on a certificate of appealability. Thus, federal review of state court determinations was examined under AEDPA’s “deferential standard of review.”

The Third Circuit remanded for an evidentiary hearing on trial counsel’s ineffectiveness on not asking for a limiting instruction to protect Lambert’s Confrontation Clause rights. Lambert’s co-defendant had introduced a psychiatric expert to explain he had voices in his head at the time of the murders and so did not have the required specific intent. While a statement that Lambert handed the co-defendant a gun was redacted, there was no limiting instructions that the co-defendant’s statements could not be used against Lambert. In closing, the prosecutor argued that those out-of-court statements helped prove Lambert’s guilt. Ineffective assistance of counsel could not be raised until PCR and PCR attorneys filed no-merit letters explaining the statements were party admissions. The Third Circuit held that the co-defendant's statements to the psychiatrist were testimonial. Lambert need not prove the primary purpose of recording the co-defendant's statements was to accuse him of a crime. In the context of a joint trial, it is enough to show the co-defendant's statements were made for the primary purpose of substituting for his in-court testimony about the crime. The Circuit also held (1) the trial-ineffectiveness claim had some merit, reasonable jurists could find that the prosecutor’s closing arguments relied on the truth of the co-defendant’s statement to a psychiatric expert to draw conclusions about the defendant’s intent in his co-defendant’s plan; and (2) PCR counsel was ineffective for not raising it, thus excusing under Martinez the default of not raising an ineffectiveness of counsel claim.

However, the double layer of deference under AEDPA and Jackson v. Virginia, 443 U.S. (1979) (light most favorable to government) led the Court to deny Lambert’s sufficiency claim. The Third Circuit could not conclude that it was “objectively unreasonable” for the Pennsylvania Superior Court to decide Lambert was guilty of the crimes.

 

FBI agent's leaks to local media outlets did not violate defendant's Fifth and Sixth Amendment rights

In United States v. Chaka Fattah, Jr., Docket No. 16-1265 (3d Cir. June 2, 2017), the Third Circuit considered whether a FBI agent's leaks to the press regarding the execution of sealed search warrants violated the defendant's Fifth and Sixth Amendment rights. While the Court criticized the agent's behavior, it ultimately found that no constitutional violations occurred.

With regard to the Sixth Amendment violation, Fattah claimed that the pretrial publicity about the search warrants caused his employer to terminate his employment. According to Fattah, the unrealized income from that employment was necessary for him to afford counsel of his choice, thereby violating his Sixth Amendment right to counsel. The Court found that applying such a far-reaching theory of causation would stretch the outer limits of the Sixth Amendment to breaking because: (1) the government lacked any desire or purpose to deliberately interfere with counsel, (2) any alleged loss of income would have been an unintended and incidental consequence of the agent's actions, and (3) there was no close nexus between the employer and the agent's actions with regard to the termination. However, even if the Court were to accept Fattah's theory, it would decline to remand for an evidentiary hearing because Fattah's claim to unrealized income was contradicted by his own undisputed statements and actions. Specifically, Fattah was already preparing to leave his employer on his own terms when he was fired and had taken concrete steps to end his employment. Furthermore, there was evidence indicating that the employer already knew about the search warrants directly from the government and, therefore, did not learn about them from the media reports. Finally, there was no evidence that the money at issue would have directly funded Fattah's choice of counsel rather than his myriad other debts.

The Court also rejected Fattah's Fifth Amendment outrageous government conduct claim, finding that the government's conduct was in no way intertwined with Fattah's. Instead, Fattah argued that because the FBI agent violated (or may have violated) certain laws, his conduct was so outrageous that it should bar Fattah's conviction. The Court flatly rejected this argument, stating that "[t]he remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police," if such a violation occurred.

The Court also summarily rejected a number of additional claims regarding the sufficiency of the indictment, constructive amendment of the indictment, improper joinder of counts, and the particularity of the search warrants. Accordingly, it affirmed the district court's judgment on all counts.

Court has jurisdiction to review substantive reasonableness of Section 3582 denial

United States v. Jose Angel Rodriguez, No. 16-3232,  2017 WL 1526279 (3d Cir. Apr. 28, 2017), as amended (May 1, 2017). 

          Rodriguez appealed denial of a motion sentence reduction under 18 U.S.C. § 3582(c)(2).  In response, the government challenged the Court’s jurisdiction to consider whether a 3582(c)(2) motion was substantively unreasonable. The Court concluded that it has jurisdiction under 28 U.S.C. § 1291.

          Although Rodriguez was eligible for a reduced sentence, the district court denied his motion for sentence reduction under § 3582(c)(2), based on his “unyielding and escalating pattern of drug-related and violent behavior.”  Rodriguez appealed, arguing that his unmodified sentence was substantively unreasonable.  The government countered that the Circuit lacked jurisdiction over his claim that of substantive unreasonableness.

          The Court found first that it has jurisdiction over the district court's order under 28 U.S.C. § 1291, which provides “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. The court next turned to determine whether 18 U.S.C. § 3742, a narrower sentencing jurisdiction statute, limits the Court’s jurisdiction.  Section 3742(a) provides that a defendant may appeal “an otherwise final sentence” under enumerated circumstances; one being if the sentence was “imposed in violation of law.”  While § 1291 jurisdiction may be limited in some cases by § 3742, that was not the case here as an unreasonable sentence is “imposed in violation of law” under 18 U.S.C. § 3742(a)(1). (citing cases). 

          The Court rejected the government’s reliance on the Court’s lack of jurisdiction to review discretionary denials of a downward departures. “As to a downward departure, Sections 3742(a) and (b) reflect Congress's intent to foreclose review of a sentencing court's decision not to depart under the relevant Guidelines. (citation omitted).  But in enacting § 3742, Congress could not have foreseen the Guidelines becoming advisory. 

Evidence of Uncharged Solicitations Admissible under Rule 404(b) in Hobbs Act Extortion and Federal Programs Bribery Prosecution

In United States v. Repak, No. 15-4011, 2017 WL 1149100 (3d Cir., March 28, 2017), Defendant challenged his conviction for two counts each of Hobbs Act extortion and federal program bribery. During his tenure as executive director of the Jonestown Redevelopment Authority ("JRA”), Defendant ran the daily operations of the organization, including making recommendations to the board regarding which businesses should be awarded contracts and grants to perform work for or establish business in Jonestown. The government charged Defendant with soliciting gifts from contractors to whom JRA had awarded contracts, including event tickets, golf outings, a new roof for his house and excavation services for his son’s gym. Defendant raised several challenges to his convictions, specifically in relation to the lower court’s evidentiary rulings, the jury instructions, the sufficiency of the trial evidence, and the prosecutor’s closing arguments.
 
The government sought to admit evidence under Rule 404(b) regarding additional bribes that Defendant had solicited from other contractors to show that Defendant possessed the requisite knowledge and intent to commit the offenses charged in the indictment. Despite the lower court’s failure to provide a detailed analysis under Rule 404(b), the Third Circuit conducted its own Rule 404(b) analysis to rule that the proffered evidence was admissible. Specifically, the court ruled that the evidence was relevant to show that Defendant knew that the items he received were not unilateral token gifts but were given in order to influence his official acts as JRA’s executive director. As these other solicitations occurred within a discrete time frame with some of the same actors involved in the charged conduct, these uncharged solicitations evinced a course of conduct which tended to show Defendant’s intent to accept bribes in exchange for city contract work. The Third Circuit also ruled that the limiting instruction provided by the trial court tempered the prejudicial impact of the proffered evidence, as well as the fact that the evidence consisted of uncharged conduct as opposed to a conviction.

Defendant also challenged the trial court’s admission of evidence of his affair with his assistant under Rule 403. Defendant had solicited gifts from contractors for his assistant, and the assistant had directly solicited gifts from contractors on behalf of Defendant. The government sought to introduce evidence of the affair to show Defendant’s motive for soliciting certain gifts, as well as to assist the jury in assessing the assistant’s credibility. The Third Circuit ruled that the lower court did not abuse its discretion by admitting this affair evidence, as the evidence was relevant and its prejudicial impact was not so unfair as to substantially outweigh its probative value.

Defendant also challenged the sufficiency of the evidence supporting his convictions, including a challenge to whether his conduct involved "official acts," as defined in McDonnell v. United States, 136 S.Ct. 2355 (2016). However, the Third Circuit found these arguments unpersuasive. The court also ruled that the prosecutor’s reference during his closing arguments to Defendant’s extramarital affair, and his invitation to the jury to “send a message” to the residents of Jonestown, did not rise to the level of a Due Process violation.  

Right to Fair and Impartial Trial Applies to Bench Trials

In Paul McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, the Third Circuit held that the right to a fair trial applies not only to jury trials, but also to bench trials.  This right cannot be waived. Therefore, a bench trial cannot proceed when the judge is biased.   Ultimately, the Third Circuit found defense counsel’s failure to ask a biased judge to recuse herself  was ineffective assistance of counsel, and granted petitioner’s request for habeas relief.    

Petitioner McKernan was charged by the Commonwealth of Pennsylvania with murder and opted for a bench trial.  The state judge presiding over the bench trial became aware of a website run by one of the victim’s family members, in which she was criticized as being too lenient and soft on crime  The judge proceeded to have a conversation, in her robing room,  with the attorneys and the victim’s family regarding the website; the defendant was not present.  The conversation was transcribed by the court reporter.  The judge expressed her anger with the “vicious and unfair” critique.  However, she also told the family members they had been hurt enough and did not want them to suffer by having the case heard by a judge they did not trust.  She told the family she “just want[ed] to make sure that you folks are happy with me.” 

Defense attorney did not speak during the conversation, and it was the assistant district attorney that finally expressed concern with the defendant not being present for the conversation.  Defense counsel then left the meeting to confer with his client, without asking the meeting to be held or adjourned.  The defendant requested to speak with the judge.  She consented and told defendant that the prior conversation was not going to influence her during the trial.  The defense agreed to proceed with the bench trial, and McKernan was convicted of first degree murder.   

Following a long series of motions and petitions for post-conviction relief, McKernan filed for habeas relief under 28 U.S.C. §2254 arguing his counsel was ineffective for not asking the judge to recuse herself.  The Third Circuit agreed finding that “counsel’s performance in failing to move for recusal of [the judge] fell far below the minimum standards of competence in the profession and the state court’s failure to recognize this incompetence was an unreasonable application of the Strickland factors.” 

Third Circuit reverses obstruction of justice enhancement where failure to appear for trial was not "willful"

United States v. Kenneth R. Douglas, Docket No. 15-1754 (3d Cir. Feb. 22, 2017)

Defendant Kenneth Douglas was an airport employee who used his position and security clearance to help traffic more than 450 kilograms of cocaine from California to Pittsburgh over the course of 10 months. On the day his trial was set to begin, he failed to appear in court. The next day, he filed a motion for a continuance, claiming he was receiving medical attention for a suspected heart attack at the time his trial was set to begin. He submitted medical records and a doctor's note with his motion. Despite the medical records, the district court found no "solid evidence" that Douglas was suffering from a medical condition that warranted missing court. It's really, the court said, "sort of ambiguous." The district court revoked Douglas' bail and later released him on house arrest with electronic monitoring. Douglas was convicted after trial.

At sentencing, the district court adopted the calculations in the Presentence Report, which included an offense level 38 for more than 450 kilograms of cocaine, a two-level enhancement, under U.S.S.G. §3B1.3, for abuse of position of trust, and a two-level enhancement, under U.S.S.G. §3C1.1, for obstruction of justice, for a total offense level of 44, which is treated as a 43, the maximum offense level under the Guidelines. Douglas faced a Guidelines range of life imprisonment. The district court varied downward and sentenced him to 240 months imprisonment.

On appeal, Douglas challenged the district court's findings on drug quantity, abuse of position of trust, and obstruction of justice. The Third Circuit affirmed on drug quantity and abuse of position of trust, but reversed on obstruction of justice. Regarding drug quantity, the Court found that the testimony of Douglas' co-conspirator, coupled with flight records, telephone records, and bank deposits corroborating that testimony, supported the drug quantity finding. As to the abuse of position of trust enhancement, the Court noted the paramount public importance of airport security and the discretion that comes with security access at an airport. It compared Douglas' role as an airport employee with that of a prison guard, noting that the public places tremendous trust that the people in such positions will not use their positions to circumvent security measures to smuggle contraband into secure facilities like airports or prisons. The Court concluded that "[b]earing in mind the critical importance of airport security, and the expansive nature of Douglas's access to secured areas at SFIA, including the planes themselves, we cannot say that the District Court erred in concluding that Douglas" abused a position of public trust.

Turning to the obstruction of justice enhancement, the Third Circuit concluded that the district court erred in applying the enhancement because there was no evidence that Douglas willfully failed to appear as required by §3C1.1. Douglas provided medical documentation that explained his absence from court. Although the government and court both expressed skepticism at the excuse, the government offered no evidence that Douglas deliberately schemed not to appear in court by feigning illness. Absent such proof, and in light of the medical documentation presented indicating a lack of willfulness, the Third Circuit concluded that the district court erred in applying the enhancement for obstruction of justice. The Court remanded for resentencing because removing the enhancement lowered Douglas' Guidelines range from life imprisonment to 360 months to life imprisonment and was unsure whether the district court's downward variance to 240 months imprisonment would remain the same under the correctly calculated guideline range.

Judge Greenaway concurred in part, but filed a dissenting opinion as to the Court's decision regarding the abuse of position of trust enhancement. Judge Greenaway contended that the plain language of the Application Notes to §3B1.3 specify that only certain acts - those violating positions of trust characterized by professional or managerial discretion and by deference to the defendant's judgment rather than abuse of his access - qualify. Here, Douglas certainly had access, but he owed no fiduciary obligation to the airline, airport, or public, exercised no managerial or professional discretion within his company, and had no authority over someone or something at the airport other than himself. Instead, Judge Greenaway found Douglas more akin to the ordinary bank teller or hotel clerk, whom the Guidelines expressly specify are not covered by the enhancement. As Judge Greenaway noted, "[f]reedom of movement is a form of discretion, but it is not the managerial or professional discretion that is subject to this enhancement." Accordingly, he dissented from the majority's holding on the applicability of this enhancement.

Third Circuit adopts "listening post" theory for wiretap intercepts under Title III

United States v. Dominique Jackson, Docket No. 14-3712 (3d Cir. Feb. 24, 2017)

Defendant Dominique Jackson was convicted after trial for conspiracy to distribute cocaine. His primary contention on appeal was that the district court erroneously denied his pretrial motions to suppress evidence derived from intercepted cellphone calls. Specifically, he argued that two federal orders authorizing the wiretaps of cellphones under Title III should have been suppressed because the orders were based on illegal state wiretaps. He contended the state wiretaps were illegal because the state court lacked authority to authorize wiretaps over cellphones outside of Pennsylvania.

The Third Circuit joined other courts of appeals in adopting the "listening post" theory that under Title III either the interception of or the communications themselves must have been within the issuing judge's territorial jurisdiction. It found that both Title III and the Pennsylvania wiretap statute, which was modeled after Title III, make clear that for the interception to be lawful only the interception had to have been in Pennsylvania. The phones and calls themselves can be outside the jurisdiction. Because there was no dispute that the interceptions at issue in this case were made at a listening post inside the state of Pennsylvania, the Third Circuit upheld the district court's denial of the defendant's suppression motion.

Jackson also raised three trial, all of which the Third Circuit rejected under a plain error analysis. First, the Court found that the district court did not plainly err in sua sponte precluding the government's case agent from interpreting the meaning of certain intercepted telephone calls under Fed. R. Evid. 701. Rule 701 permits a lay witness to testify as to their opinion so long as the testimony is: (1) rationally based on the witness's perception, (2) helpful to clearly understanding the witness's testimony or determining a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge. Although the Third Circuit found that the district court erred by allowing the case agent to testify about the meaning of clear conversations, provide unhelpful argument in the guise of evidence, and rely on other than direct knowledge of the events, this error did not raise to the level of a plain error because Jackson's co-defendants provided much of the same information.

Jackson also contended that the government wrongfully introduced evidence of two co-conspirators' guilty pleas as substantive evidence of his guilt. The Third Circuit rejected this claim after concluding that the government properly introduced this evidence to establish the witnesses' credibility and firsthand knowledge of the crime and to refute Jackson's selective prosecution claim.

Finally, Jackson argued that the district court plainly erred by permitting the government to mention a witness's invocation of the Fifth Amendment in front of the jury. While the Court agreed that such a mention was inopportune, it occurred in response to the district court's question about the applicable hearsay exception. The Court found error, but deemed it not so serious as to rise to the level of plain error.

Sentencing enhancements do not define a crime for purposes of the categorical approach

Chavez-Alvarez v. Attorney General, http://www2.ca3.uscourts.gov/opinarch/161663p.pdf

The Third Circuit reversed the BIA’s removal of a lawful permanent resident – finding his military conviction for sodomy was not a crime involving moral turpitude. The BIA had reasoned that the application of a sentencing enhancement in his case was the “functional equivalent” of a conviction for the enhanced offense of forcible sodomy. Applying the categorical approach, the Third Circuit ruled that sodomy did not require proof of force and, given Lawrence v. Texas, was not a crime involving moral turpitude. The President’s delegated authority to define (and enhance) punishments did not function to define the crime itself.

Court finds no plain error in the use of dual juries

In United States v. Brown, Docket No. 14-3754 (3d Cir. Feb. 22, 2017), the defendant raised Fifth and Sixth Amendment challenges to the use of dual juries (one for him and one for a co-defendant) at his trial. Although Brown's counsel raised no objection to the joint trial before dual juries, the Third Circuit reviewed the defendant's claim for plain error because there was no indication that the defendant "was actually aware of his due process and jury rights and that he himself - not just his counsel - knowingly sanctioned a procedure that arguably impinges on those rights."

Noting that the use of dual juries has very little precedent in the Third Circuit, the Court adopted the holdings of several other circuits in ruling that the use of dual juries is not per se unconstitutional. Instead, the practice will be upheld unless the defendant can show some specific, undue prejudice. While the Court stated that it was not encouraging the practice of using dual juries, due to the potentially significant complications inherent in such a practice, it nevertheless affirmed Brown's conviction because Brown had failed to show any prejudice in his case.

Vacating October Decision, Court Holds Return of Indictment Not Necessarily Fatal to Appellate Jurisdiction over Grand Jury Matters

On rehearing, a unanimous panel changes course in In re Grand Jury Matter #3, No. 15-2475 (Jan. 27, 2017), holding in this “out-of-lane” case that appellate jurisdiction survived the return of an indictment against a target-turned-defendant challenging a document's presentation to the grand jury. Reaching a question that had escaped review under its original decision, the Court now concludes that the district court erred in holding the crime-fraud exception to have vitiated work product protection for the document, an email the target had received from his attorney and forwarded to his accountant.

Identifying the target as John Doe, the opinion’s discussion of the underlying investigation is relatively spare, framing the email’s relevance in relation to the government’s theory that Doe executed a sham transfer of his company to a third party in order to mitigate liability in a class action suit challenging the company’s practices. The accountant produced the email in response to a subpoena, but the next day the accountant’s attorney sought to recall the email on the ground that its disclosure had been inadvertent. The government, however, retained the email and asked the district court for authorization to present it to the grand jury. The court granted permission, reasoning that while the email constituted attorney work product, it was subject to disclosure under the crime-fraud exception. Doe then filed an interlocutory appeal.

While Doe’s appeal was pending, the government presented the email to the grand jury and secured an indictment on RICO and other charges. Following oral argument but before decision, the government presented the email again to a second grand jury weighing a superseding indictment. Writing for a split panel, Judge McKee reasoned in an October 28 decision that the email’s presentation, along with the return of the indictment, had mooted the controversy, requiring dismissal of the appeal. Judge Ambro dissented on the view that the decision was contrary to precedent and counterproductive from the standpoint of judicial efficiency.

Doe petitioned for rehearing in November, and in December the second grand jury returned a superseding indictment. Last week, a unanimous panel granted the rehearing petition and adopted Judge Ambro’s analysis in a per curiam opinion. “[B]ecause in limited circumstances we take pre-indictment appeals and begin to decide them,” the Court reasons, “we should not reflexively dismiss those appeals — wasting the parties’ effort as well as ours — simply because an indictment is filed.”  Instead, the Court holds, appellate jurisdiction survives so long as “grand jury proceedings continue.” In Doe's case, the Court relates, they do: the second "grand jury is still investigating other charges relating to ownership of [the putatively transferred company], though the Government represents that it currently has no plans to seek additional charges based on the email."

Having confirmed jurisdiction, the unanimous panel proceeds to hold that presentation of the email to the grand jury was error. The crime-fraud exception did not apply because “an actual act to further the fraud is required before attorney work product loses its confidentiality.” This act-in-furtherance requirement, the Court stresses, “provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.” As Doe had done no more than forward the email to his accountant proposing “to discuss” the matter further, the record showed only that he "at most thought about using his lawyer’s work product in furtherance of a fraud, but he never actually did so."

In closing, the Court offers several cautionary remarks. "[M]any appeals involving grand jury proceedings" will still "become moot after the return of an indictment" because grand jury proceedings will have concluded. And in the event Doe is convicted and appeals, the error will not automatically guarantee him a new trial, but be subject to review for harmlessness.

Definition of Crime of Violence Under 18 U.S.C. §16(b) is Unconstitutional

      The Third Circuit ruled that the definition of crime of violence under 18 U.S.C. § 16(b) is unconstitutionally vague, and therefore the Petitioner’s prior conviction did not constitute a crime of violence.

      In Baptiste v. Attorney General, 841 F.3d 601(3d Cir. 2016), the Third Circuit first analyzed the New Jersey aggravated assault statue noting that it covered a “wide array of conduct.”  The appellate court further noted that a defendant could be convicted under this law based on: (1) intentional use of force, (2) conduct that presented a substantial risk he or she would use force or (3) conduct that presented no risk of intentional use of force.  The result was a defendant could be convicted under the same statute “for conduct as dissimilar as an intentional act of physical violence (first category of conduct) and drunk driving causing accidental injury (third category of conduct).”  Ultimately, the Third Circuit concluded that reckless second-degree aggravated assault, in “the ordinary case,” creates a substantial risk of intentional use of force and is therefore categorically a crime of violence under § 16(b).
 
      However, due to the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), the Third Circuit then went on to find § 16(b) was void for vagueness under the Due Process Clause, joining the Sixth, Seventh, Ninth and Tenth Circuits, all of which have previously found §16(b) unconstitutionally vague and invalid.  Therefore, the aggravated assault conviction was not a crime of violence. 

      Nevertheless, Petitioner was still found to be removable because the crime of reckless second-degree aggravated assault is a crime involving moral turpitude. 

Divisible Statutes and the Means/Elements Test Under Mathias

In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016), the Third Circuit ruled that Pennsylvania’s Controlled Substances Act was a divisible statue, and thus the district court was correct in applying the modified categorical approach to determine if a conviction under that statue was a “serious drug offense” under the Armed Career Criminal Act (“ACCA”).  The statute was divisible because the controlled substance schedules set forth different elements of the offense, not different means of committing the same offense.

In reaching its decision, the Third Circuit applied the means/elements test established by the Supreme Court in Mathias v. United States, 136 S.Ct. 2243 (2016).  Mathias set forth three methods of determining if a factor is a distinct element of the offense, or simply a separate means of committing the offense.  Courts should consider (1) whether a state court has decided the matter; (2) the language of the statute; and (3) the record itself.  For the statute in dispute in this case, a state court had already found that the type of drug involved in a case was a distinct element of the offense, not a means of committing the offense.  Second, the language of the statute did not simply set forth a “list of illustrative examples” of drugs that lead to a violation of the statute, but rather the statute contains “a disjunctive and exhaustive list” for drug types that are “alternative elements[,] not separate means of commission” of the offense.  Finally, the record in the underlying case, particularly the charging documents, showed the type of drug was an element of the offense, as it was the involvement of heroin that made this a serious drug offense. 

The appellate court noted that in performing a means/element review under the third method – examination of the record – courts are not limited to “actual conviction documents,” but rather courts may look to charging instruments, plea forms, sentencing orders, conviction documents and “other reliable judicial records.”

Finally, the Third Circuit ruled that the defendant’s conviction under the Pennsylvania law, involving heroin, qualified as a predicate offense under ACCA. 

THE CATEGORICAL APPROACH DOES NOT APPLY TO A CONTEMPORANEOUS CRIME OF VIOLENCE AND A VIOLATION OF 18 U.S.C. § 924(c)

In two cases decided on December 19, 2016, United States v. Robinson, No. 15-1402, 2016 WL 7336609 and United States v.Galati, No. 15-1609, 2016 WL 7336610, the Circuit adopted a novel approach to addressing whether an offense qualifies as a crime of violence under 18 U.S.C. § 924(c).  The Circuit held that the categorical approach, which directs a court to look only at the elements of the particular offense of conviction to determine whether it qualifies as a crime of violence (See Taylor v. United States, 495 U.S. 575 (1990)), does not apply when a 924(c) conviction is contemporaneous with the conviction for a crime of violence.  The Court said that this is because the record of all necessary facts are before the district court.  The facts of the charged offenses, either determined by a jury (as in Robinson) or admitted by the defendant during a guilty plea, unmistakably shed light on whether the purported crime of violence was committed with “the use, attempted use, or threatened use of physical force against the person or property of another.”

The defendant in Robinson was convicted of Hobbs Act robbery and of brandishing a firearm during a crime of violence (the Hobbs Act robbery).  The Circuit considered the language of the Hobbs Act robbery statute in conjunction with the brandishing conviction under Section 924(c).  The Court said that looking at a contemporaneous conviction allows a court to determine the basis for a defendant’s predicate conviction and the defendant suffers no prejudice because the court is not finding any new facts which are not already of record.  The Circuit framed the question as whether a Hobbs Act robbery committed while brandishing a firearm is a crime of violence and concluded that the answer must be yes.

Judge Fuentes filed a concurring opinion.  He explained that the categorical approach should be used even when the convictions are simultaneous.  However, he concludes that Hobbs Act robbery is categorically a crime of violence under 924(c)(3)(A), finding persuasive a Second Circuit decision, United States v. Hill, 832 F.3d 135 (2d Cir. 2016), that all the alternative means of committing a Hobbs Act robbery satisfy the force clause.

In Galati, the defendant was convicted of using interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, and discharging a firearm during a crime of violence (the murder-for-hire).  The Circuit framed the question as whether a violation of Section 1958 which results in personal injury and during which a firearm is discharged is a crime of violence and concluded that it is a crime of violence.  The Court noted that the discharge of the firearm coupled with resulting personal injury qualifies as the use of physical force.

The Circuit declined to address the defendants’ challenge to the residual clause in 18 U.S.C. § 924(c)(3)(B).

It appears that under the Circuit’s logic a contemporaneous conviction of any crime along with a 924(c) conviction of either brandishing or discharging a firearm will qualify as a crime of violence under the force clause of 924(c)(3)(A).

Elonis STILL guilty for Facebook threats

In US v. Elonis, 12-3798 (10/28/2016), the Third Circuit affirms Elonis’s conviction for Facebook threats -- again.  SCOTUS vacated the Circuit’s original denial of Elonsis’s appeal.  As a matter of statutory interpretation, a conviction under 18 U.S.C. § 875(c), transmitting a threat to injure another person in interstate commerce, could not be based solely on an objective standard (whether a reasonable person would perceived the words as a true threat).  There must be a mens rea requirement greater than negligence.  SCOTUS refused to state whether a mens rea of recklessness would be sufficient.  However, SCOTUS wrote that the jury should have been instructed that Elonis could be convicted if it found he “transmitted a communication for the purpose of issuing a threat or with knowledge that the communication would be viewed as a threat.”  SCOTUS did NOT reach the First Amendment issues.

On remand, the Third Circuit found that the trial court’s instruction containing the objective standard was harmless error.  Elonis testified at trial that his posts were just rap lyrics or satire; that he never intended for anyone to feel like he was threatening them; and that he didn’t care what other people thought or said about him.  Some of his posts contained statements saying that they were fictional, were not meant to depict real persons, and that he was simply exercising his First Amendment rights.  The government argued at closing that even if the jury believed everything that Elonis said, that they could still convict him because “it doesn’t matter what he thinks.”  However, despite Elonis’s testimony and the government’s closing, the Third Circuit found harmless error because the Government had produced evidence beyond a reasonable doubt that the defendant personally knew his communications would be viewed as a threat AND an objective person would view the communications as a threat.

For the conviction based on posts discussing his ex-wife, the Third Circuit pointed out that after a PFA hearing in which the ex-wife cited to Facebook posts as threatening, Elonis continued to post similar lyrics.  For the convictions based on posts discussing state police, elementary schools, and FBI agents, the Third Circuit reasoned that because Elonis knew that posts containing very similar lyrics discussing his former co-workers had made them feel threatened, that he knew these particular posts would make people feel threatened as well.

I cannot imagine that this is the end of this case.  First, while I can understand the affirmance of the conviction involving the threats to his ex-wife, I am puzzled by the affirmance of the other convictions.  There was evidence that the ex-wife felt threatened by the lyrics and Elonis continued to post them even after knowing that his felt threatened (and the lyrics are objectively threatening).  However, there was no such similar evidence that (1) state police, elementary schools in the area, or the FBI felt threatened, (2) that Elonis knew or found out they felt threatened, and (3) that he continued posting threatening lyrics anyway.  Isn't there some need to show that Elonis knew that the particular person or people that are the "victims" would feel threatened?  Indeed, it is hard to imagine how the criminalization of these generalized threats, not directed towards particular individuals, can pass constitutional muster.

Which brings me to the second reason I think we haven’t seen the end of this case.  No opinion directly addresses the First Amendment concerns.  Does SCOTUS's interpretion of the mens rea requirement automatically mean that the statute satisfies the First Amendment?  Some of Elonis's lyrics aren’t that different (although, really of much poorer quality) than the lyrics of some successful rap artists.  One of his posts was almost word for word taken from a stand-up comedy routine, which he referenced in his post.  It is hard to imagine that art (even bad art) and comedy routines are not protected by the First Amendment.  Does it matter that his lyrics were posted on his own Facebook page rather than transmitted to a "victim"?  Does it matter that two of the "victims," the state police and the FBI, can be viewed as public officials?

Is there a rehearing petition coming?  Another cert petition?  I, for one, would really like some First Amendment clarity please!

Interlocutory appeal of disclosure order in grand jury proceedings dismissed for lack of jurisdiction

            The Third Circuit dismissed the appeal in In Re Grand Jury Matter #3, 15-2475 (10/28/2016), for lack of jurisdiction.  In response to a grand jury subpoena, John Doe’s accountant gave the government an email that was written by John Doe’s lawyer and forwarded to the accountant by John Doe. The government wanted to show the email to the grand jury.  John Doe claimed that it was attorney work product and privileged.  District Court ruled that the crime-fraud exception applied and that the government could disclose the email to the grand jury.

            Normally, to file an interlocutory appeal of such a disclosure order, the subpoenaed party would have to refuse the subpoena, get held in contempt, and then file an appeal of the contempt finding.  However, in circumstances, such as here, where the document is not in the possession of the person opposing disclosure, the person opposing disclosure is unable to choose to stand in contempt so that he/she could immediately appeal the disclosure order.  Under these circumstances, sometimes the Perlman doctrine allows the privilege-holder to file an interlocutory appeal.

            In this case, the Third Circuit allowed the appeal to continue and had full briefing and oral argument.  However, sometime after the filing of the appeal, the grand jury was shown the email and they returned an indictment.  Given the indictment, the Third Circuit found that an interlocutory appeal was premature because the issue could be raised after final judgment if there was a conviction in this case.  They dismissed the case for lack of jurisdiction.  A dissent was filed.

Pro se appeal of non-decision dismissed for lack of jurisdiction

            In Marshall v. Commissioner of PA DOC, et al. 16-9000 (10/25/2016), the Third Circuit dismissed this pro se appeal for lack of jurisdiction.  Marshall is a capital inmate with a pending federal habeas petition who moved to proceed pro se.  After additional motions and a psychiatric evaluation, the District Court held a hearing in which parties addressed whether Marshall was competent and whether he could proceed pro se.  At this hearing the District Court specifically stated that it had not yet decided these issues but that it would do so shortly.

            After the hearing, but prior to the announcement of any decision, Marshall filed a pro se appeal of the District Court’s (then non-existent) denial of his motion to proceed pro se.  After that, the District Court issued an order finding Marshall not competent and denying his motion to proceed pro se.  No parties (not Marshall nor his counsel) filed anything further with the Third Circuit after the District Court’s opinion, even though the Third Circuit invited them to do so.

            The Third Circuit dismissed Marshall’s appeal for lack of jurisdiction.  Even though there are circumstances under F.R.A.P. 4(a)(2) and the Cape May Greene doctrine where the Third Circuit may have jurisdiction over an appeal that was filed before it was ripe, those circumstances did not apply to Marshall’s case.  At the very least, FRAP 4(a)(2) and the Cape May Greene doctrine require that the District Court have at least announced an appealable decision, even if the decision may not have been officially entered or there may be other pending issues preventing the entry of a final appealable order.  Neither of those circumstances applied here as the notice of appeal was filed before any decision was made or announced.  Thus, even though Marshall’s motion to proceed pro se has now been denied, his appeal of the denial of his motion was premature and dismissed for lack of jurisdiction.

PS -- Props to all attorneys who continue to act in their client's best interests even when the client is trying to fire you.

Pennsylvania Drug Priors Not Necessarily Qualifying Predicates for Recidivist Enhancements

In Singh v. Attorney General, No. 15-2274, the Court reverses the Board of Immigration Appeals’ determination that an alien's prior Pennsylvania drug offense was an “aggravated felony” making him subject to removal and ineligible for discretionary relief.  In both this immigration context and those presented by recidivist enhancements such as the Sentencing Guidelines’ career offender provision, the court must determine whether the prior conviction was for an offense matching the “generic” federal definition of the pertinent crime.  If the state offense sweeps more broadly, it is not a predicate.

With regard to Pennsylvania's principal controlled substance law at 35 Pa. C. S. § 780-113(a)(30), that requirement can present an issue inasmuch as the state’s controlled substance schedules at § 780-104 include drugs not embodied in the federal schedule at 21 U.S.C. § 802.  A prior conviction therefore cannot be deemed a predicate unless the sentencing court (or immigration judge) is permitted to inquire into underlying judicial records to determine what substance formed the basis for the defendant’s prior Pennsylvania conviction.  For such inquiry to be permissible, § 780-113(a)(30) must be “divisible,” meaning that drug type must be an element of the offense.

Here, the Court quotes its recent decision in Bedolla Avila v. Attorney General, No. 15-1860 (June 23, 2016), to confirm that § 780-113(a)(30) is “divisible ‘with regard to both the conduct and the controlled substances to which it applies,’” i.e., that the type of substance is one element of the offense, and the mode of trafficking — for example, “manufacturing” vs. “delivering” — is another.  Accordingly, courts may make inquiry into the limited class of judicial documents cognizable on the “modified categorical approach” under Shepard v. United States, 544 U.S. 13 (2005).

In Singh’s case, the cognizable portions of the underlying judicial record featured language one would imagine was formulated to keep the conviction from triggering immigration consequences: his offenses were said to involve a “PA Counterfeit Substance – Non Fed.”  Rejecting the government’s view that state courts and prosecutors lack authority to determine what substances are or are not within the scope of the federal Controlled Substances Act, the Court reads the “Non Fed” language to permit a conclusion that "whichever drug identity Singh’s previous conviction involved, it was not a drug identity listed as a federal controlled substance.”

The Court also rejects an end-run ventured by the Board of Immigration Appeals, which had held that Pennsylvania drug priors constitute aggravated felonies as a categorical matter.  According to the BIA, “no ‘reported decision of a Pennsylvania court’” indicates any defendant has been convicted for “conduct involving a substance that was not included in the Federal controlled substance schedules.”  The Board thus concluded that Pennsylvania drug offenses qualify as predicates because there is no “realistic probability” that “Pennsylvania actually prosecutes people under § 780-113(a)(30) for misconduct involving substances that are not federally controlled.”  In rejecting that conclusion, the Court explains that no such “realistic probability” inquiry is appropriate where the elements of the state and federal offenses do not match.  In the case of  35 Pa. C. S. § 780-113(a)(30), the different penalties provided by state law for different substances, as well as discussion in a Superior Court decision, supply the correct points of reference to hold that drug type is an element, such that no match appears.

Unusual Bankruptcy Fraud Case Yields Guidance on Sentencing and Proof Issues

In the rare bankruptcy fraud case to reach it, United Statesv. Free, No. 15-2939, the Court confronts an instance of a defendant who filed for voluntary reorganization under Chapter 13 despite having adequate assets to repay his creditors in full.  The proceeding was later converted into a Chapter 7 action and the creditors made whole.  Defendant Michael Free was meanwhile found guilty by a jury of making false statements in filings and testimony in the bankruptcy proceedings.  At sentencing, the government sought a 16-level enhancement under the 2014 Sentencing Guidelines for a loss amount of between $1 and $2.5 million.  The sum represented an accounting of the value of certain assets concealed by Free from the bankruptcy court.  (Note that by amendment effective November 1, 2015, Section 2B1.1 now requires a loss $1.5 to $3.5 million to trigger a 16-level bump.)

Section 2B1.1 of the Guidelines, pertaining to fraud and other economic crimes, defines “loss” as the greater of the “reasonably foreseeable pecuniary harm that resulted from the offense” or, to abbreviate slightly, “the pecuniary harm that was intended to result from the offense.”  If “there is a loss but it reasonably cannot be determined,” the sentencing court is to use “the gain that resulted from the offense as an alternative measure.”  In Free’s case, the district court made no explicit finding of any intent to cause pecuniary harm to the creditors; rather, the Circuit suggests, Free’s aim had been to protect his extensive store of valuable World War II-era firearms from liquidation.  The district court nonetheless applied the 16-level enhancement, reading the Guidelines to “reflect the commonsense proposition ‘that there would be a higher loss calculation when there is a significantly higher amount of assets that are concealed from the Bankruptcy Court[.]’”  Given “the tens of thousands of bankruptcy cases just filed here in Pittsburgh, let alone around the country,” the judicial system must “absolutely rely on people telling the truth because we can’t ferret it out any other way.”

The Circuit reverses.  Loss cannot simply be the amount of assets the debtor hides from the trustee and creditors.  Instead, the sentencing court must determine the “pecuniary harm, actual or intended, to [the defendant’s] creditors, or what he sought to gain from committing the crime.”  Despite disagreeing with the district court’s “view that the concept of ‘loss’ under the Guidelines is broad enough to cover injuries like abstract harm to the judiciary,” the Court emphasizes the relevance of this concern.  Indeed, the decision even goes so far as to contemplate an upward departure for conduct resulting in “a significant disruption of a governmental function” under Section 5K2.7 of the Sentencing Guidelines.  Separately, the Court states in a footnote that loss amount may include “administrative expenses” incurred by the bankrupt estate.

The Court otherwise rejects the defendant’s challenge to the sufficiency of the evidence.  Quoting a Sixth Circuit decision for the proposition that under the bankruptcy statute at 18 U.S.C. § 157, “filing itself is the forbidden act,” the Court concludes that the evidence Free filed fraudulent documents was “overwhelming.”  It would thus appear that in bankruptcy fraud cases there need be no proof that the defendant intended to deprive creditors of money or property.