Prosecutorial misconduct of systematically injecting inadmissible evidence into child pornography trial was plain but did not warrant reversal; application of obstruction of justice enhancement erroneous and warranted remand for resentencing, even where district court imposed a downward variance

United States v. Welshans, Appeal No. 16-4106 (3d Cir. June 14, 2018), 2018 WL 2976804

Welshans challenged his conviction and sentence for distribution and possession of child pornography.

The Third Circuit rejected Welshans's argument that the prosecution violated his due process right to a fair trial by informing the jury that the files on his computer included deeply abhorrent videos and images of bestiality, bondage, and violent sexual assault of very young children.  At trial, the district court had admitted, with limiting instructions, two videos, without sound, which lasted two and a half minutes. The rest of the collection was excluded under Rule 403 and United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012). However, the government introduced exhibits which gave detailed paragraph-length descriptions of gruesome images and disturbing file names, and also elicited testimony from three agents that the images the jury saw were not the worst of what was recovered from Welshans. The government repeated these descriptions in closing argument. While the government is free to prove its case as it sees fit, its evidence remains subject to 403 limitations, whether the evidence is videos, as in Cunningham, or written or testimonial descriptions, as here. The Court agreed that the prosecutor’s misconduct was plain, but did not rise to the level of a constitutional violation. While the misconduct was pervasive, and any limiting instructions did not address the prejudicial descriptions, the misconduct did not so infect the trial with unfairness because it did not impact the jury’s credibility determination. The only contested issue in the case was whether Welshans knew there was child pornography on his computers, and his denial was overwhelmed by the evidence: 10,000 images and hundreds of videos on his computer with no explanation how they got there, as well as his conduct trying to get rid of those files while the police were en route.

The Third Circuit agreed that the obstruction enhancement was erroneously imposed. Application Note 4(d) to U.S.S.G. § 3C1.1 provides that not all acts of destroying or concealing evidence are obstruction, for example: “if such conduct occurred contemporaneously with arrest . . . it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation . . . .” Here, Welshans received a call from his aunt that police were on their way to his house and, in a panic, he began moving files on his computer into the recycling bin. Once law enforcement found the laptop, they removed its battery. The files were easily restored, and none were lost. The panel ruled that “material hindrance” requires an actual, negative effect, rejecting the government’s overly broad interpretation that anything that takes some “extra time” and might emerge as a trial issue is a material hindrance. (Also, the government only challenged this prong at oral argument, so the Court deemed it waived). Because the enhancement was applied in error, remand was necessary even though the district court had imposed a downward variance, because the Court could not “be sure” that the erroneous calculation did not affect the sentence imposed. Judge Fuentes dissented on the sentencing reversal, finding that contemporaneous should be more strictly defined as conduct occurring “just prior to arrest,” and conduct that occurred 40 minutes before agents arrived was not “just prior.” 

Second-degree aggravated assault with a deadly weapon (Pa) is categorically a crime of violence based on the elements clause of the career offender guideline.

United States v. Ramos, Appeal No. 17-2720 (3d Cir. June 15, 2018), 2018 WL 2994410

On the government’s appeal, the Third Circuit found that second-degree aggravated assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), has as an element “the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Pennsylvania’s aggravated assault statute is divisible because it sets forth two alternate degrees of the offense and, within those degrees, the subsections “criminalize different conduct and set[ ] forth different (albeit overlapping) elements.” Thus, because the statute is divisible, the Court was able to consult a limited set of extra-statutory materials to establish Ramos's offense of conviction with certainty: second-degree aggravated assault with a deadly weapon. The minimum conduct sufficient to sustain that conviction was attempting to cause another person to experience substantial pain with a device capable of causing serious bodily injury. The Court concluded, “as a practical and legal matter,” an offender can "only do so by attempting to use physical force against another person.” (citing United States v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017)). The Third Circuit reversed the district court’s finding that Ramos was not a career offender, and remanded for resentencing.

Generic description of suspect sufficient to justify stop when analyzed under totality of the circumstances

In United States v. Foster, Appeal Nos. 16-3650 & 16-4225 (3d Cir. May 30, 2018), co-defendants challenged their convictions and sentences for being felons in possession of firearms. On February 5, 2015, a local barbershop employee called 911 to report two suspicious black males sitting in a Honda Accord in the shopping plaza's parking lot. When police arrived, the Accord promptly left the parking lot. The barbershop employee provided police with a picture of the Accord and its license plate. After running the plate, police learned that the Accord was reported stolen in an armed robbery. An email alert was sent to local law enforcement officers alerting them to the stolen vehicle and attaching the picture. The following morning, a police officer on routine patrol observed the Honda Accord sitting in the plaza parking lot with two black males inside. The officer left the lot briefly to call for backup and position himself to make a safe stop. When he returned, one of the men was standing outside the car and the other man was no longer in or near the car. The man standing next to the car, Defendant Foster, was fled from police, but was quickly apprehended and a gun was recovered from his person.

The second man, Defendant Payton, began walking away from the plaza. Another officer responded to a radio call regarding the Accord's missing second occupant. At the time he searching for the suspect around the plaza, the officer knew that he was looking for a black male and that two potentially armed and dangerous black males had been observed in a stolen Honda Accord the previous day. Within six minutes of the radio call, the officer observed Payton, a black man, walking calmly and leisurely along a road away from the plaza. The officer trailed Payton for about five minutes and radioed for a more detailed description of the suspect. Eventually, after seeing no other pedestrians in the area matching the general description of the suspect, the officer stopped and arrested Payton. A search of the Accord produced a rifle, duct tape, and gloves. 

(1) Reasonable Suspicion to Stop Payton

On appeal, Payton challenged the district court's decision denying his motion to suppress evidence discovered as a result of his arrest because the only identifying information available before he was seized was that a black male had fled the plaza parking lot. The Third Circuit rejected this challenge, holding that the district court properly considered the totality of the circumstances known to the arresting officer combined with his 14 years' experience as a police officer in finding reasonable suspicion for the stop. While the Court acknowledged that the general description of the suspect, viewed in isolation, would not support a finding of reasonable suspicion. But the Court would not ignore the context of the stop. Payton was observed within six minutes of the radio call walking less than 2/10 of a mile away from the plaza and the stolen car. No one else matching the description of the second occupant was observed anywhere in the vicinity. Furthermore, the arresting officer had more than 14 years experience, was familiar with the area, and knew from experience that it was unusual to see an unknown pedestrian walking down that stretch of road. Based on all these factors, the Court upheld the district court's finding of reasonable suspicion.

(2) Introduction of Barbershop Employees' Testimony

The Third Circuit also upheld the district court's decision to allow the introduction of the barbershop employees' testimony regarding their observations of suspicious behavior the day before the arrest. The government identified a permissible non-propensity purpose for admitting the testimony - that it was relevant to establish motive to rob the bank or jewelry store in the plaza because it showed the defendants "casing" the businesses. The evidence was relevant to the motive theory and not unduly prejudicial because it directly rebutted the defendants' own arguments regarding motive.

(3) Sufficient Evidence Supported Constructive Possession

Payton argued that the evidence was insufficient to support constructive possession of the rifle recovered from the Accord. The Third Circuit affirmed the jury's guilty verdict, finding that the evidence demonstrated both Payton's proximity to the rifle and a plausible motive for Payton to possess the gun - armed robbery. The evidence also established that Payton was in the driver's seat of the Accord on the day of his arrest. Finally, Payton's own evasive conduct - fleeing the scene and providing false identification information upon arrested - further supported a finding that Payton was connected to the rifle. 

(4) Sentencing Enhancements

The Third Circuit also upheld two sentencing enhancements applied by the district court because the defendants were unable to point to anything in the record disputing the accuracy of the factual findings relied upon by the district court in applying the enhancements.

Government's failure to file motion for reconsideration of suppression ruling within 30 days deprived Third Circuit of jurisdiction over interlocutory appeal

In United States v. Kalb, Appeal No. 17-1333 (3d Cir. May 31, 2018), the Third Circuit considered whether it had jurisdiction to hear the Government's interlocutory appeal under 18 U.S.C. § 3731 where the Government filed a motion for reconsideration of a suppression ruling after the 30-day time period for filing an appeal under § 3731. Defendant Kalb successfully argued for suppression of evidence obtained from him after police stopped his vehicle. The district court granted Kalb's motion to suppress on October 21, 2016 and filed a written opinion three days later. On November 29, 2016, the government filed a motion to reconsider. The district court denied the government's motion to reconsider on the merits, rejecting Kalb's argument that the government's motion for reconsideration was untimely because the government sought leave to review the transcript of the suppression hearing within the 30-day period.

Typically, the 30-day appeal period under § 3731 begins when a suppression order is entered on the docket. If the government timely seeks reconsideration of the order, however, the order is rendered non-final until the court decides the motion for reconsideration. The 30-day appeal period runs from an order denying a timely motion for reconsideration. On appeal, the Third Circuit concluded that the 30-day limitation period for filing an appeal under § 3731 is jurisdictional. It further concluded that the government must file a motion for reconsideration within § 3731's 30-day time period for the motion to keep the 30-day appeal period from expiring. Here, because the government's motion for reconsideration was not filed until the 30-day appeal period had elapsed, the suppression order remained final and the Court lacked jurisdiction over the government's appeal of the district court's suppression order.

Third Circuit Upholds Application of Sentencing Enhancements for Leadership Role and Conspiracy Relocation in Bank and Wire Fraud Conspiracy

In United States v. Thung Van Huynh, 884 F.3d 160 (3d Cir., March 6, 2018), Defendant pled guilty to participating in a bank and wire fraud conspiracy to purchase luxury wristwatches. Specifically, Defendant admitted to purchasing stolen identification and credit reporting information from prospective car buyers in order to create counterfeit driver’s licenses and credit cards. Defendant then gave the counterfeit driver’s licenses and credit cards to his co-conspirators so that they could obtain lines of credit at several financial institutions. The co-conspirators used the lines of credit to purchase the wristwatches. Defendant then sold the wristwatches to a fence in California for cash, which he used to pay his co-conspirators for their services and to cover other expenses of the fraudulent scheme.

In the plea agreement, the government reserved the right to seek an enhancement for Defendant’s leadership role under U.S.S.G. ' 3B1.1(a). However, the plea agreement did not discuss the application of the conspiracy relocation enhancement under U.S.S.G. '' 2B1.1(b)(10). Nonetheless, the plea agreement expressly stated that the government was not restricted in responding to the sentencing court’s questions regarding the application of any sentencing guideline.

The probation office concluded that these two enhancements applied, and the sentencing court agreed. Specifically, the sentencing court concluded that Defendant’s fraudulent scheme, involving several co-conspirators who facilitated or actually made purchases at dozens of jewelry stores across 16 states, was “extensive.”

Defendant challenged the application of both of these enhancements. In reference to the relocation enhancement, Defendant claimed that he did not move his fraudulent scheme from one jurisdiction to another in order to evade law enforcement officials, but merely operated the scheme in multiple locations. In reference to the leadership enhancement, Defendant claimed that he was an equal partner with another co-conspirator, and that he shared the proceeds of the scheme equally with the other co-conspirators. He also claimed that he did not exercise decision-making authority over the co-conspirators or the conspiracy’s profits.

The Third Circuit ultimately affirmed the sentence, concluding that the sentencing court did not clearly err when it applied both of the enhancements. The court ruled that the relocation enhancement was properly applied because Defendant targeted stores far from his home in California, primarily on the East Coast.  Defendant himself was stopped by law enforcement officials in Michigan and Texas while attempting to purchase wristwatches. Defendant also never targeted the same store twice, except for a single instance.

The Third Circuit also ruled that the leadership enhancement was properly applied, due to the “overwhelming evidence”  of Defendant’s “singular leadership role.” The evidence presented established that Defendant recruited the co-conspirators, obtained the supplies necessary for them to execute the scheme, identified the targeted stores, made the travel arrangements, and controlled the scheme’s finances.  

Defendant also claimed that the government had breached the plea agreement by failing to object to the sentencing court’s application of the relocation enhancement. The Third Circuit also ruled that the government did not breach the plea agreement because the language included in the agreement allowed the government fully answer any questions posed by the sentencing court regarding the application of the guidelines. Consequently, the plea agreement did not require the government to affirmatively object to the application of any sentencing guideline. In fact, when questioned by the court during the sentencing hearing, the government agreed with Defendant that the relocation enhancement did not apply.

Good faith exception applied to evidence seized as the result of a warrant with extraterritorial application in violation of a then existing rule

United States of America v. Gabriel Werdene, No 10-3588 (3d Cir., 2/21/2018)




In an opinion dealing with a search warrant from the Eastern District of Virginia that eventually resulted in a change to a Federal Rule of Criminal Procedure, the Court ruled that the Defendant's right against unreasonable search and seizure was violated when under a pre-12/1/2016 version of Fed.R.CrimPro. 41(b), a magistrate approved a warrant authorizing searches of and seizure of data from computers located outside of the magistrate's district. It then ruled that despite the request for and authorization of a search and seizure not allowed any Federal Rule of Criminal Procedure, the evidence should be admitted anyway because the FBI agents who procured the warrant acted in good faith.

Investigating dark web distribution of child pornography, the FBI seized a server for an online forum called Playpen in North Carolina, arrested its Florida owner, and moved the server to a location in the Eastern District of Virginia. It obtained a warrant from a magistrate in that district to monitor communications on the server and then continued to operate the Playpen forum,  using NIT, ("government created malware") to gather IP addresses and other information from computers logging in. (See note 1, infra.)  Mr. Werdene was one of the Playpen users who logged in, commenting on the pornography, and sharing links using the username "thepervert." A separate search warrant for his home was obtained as a result of the investigation, where the FBI seized a USB drive and a DVD containing child pornography. He was charged with a single count of possessing child pornography. He sought suppression of the evidence seized from him because Fed.R.Crim.Pro. 51(b) did not authorize searches of computers outside of the issuing magistrate's district. He pled guilty and was sentenced, reserving the right to appeal the denial of his suppression motion.

Magistrates cannot authorize searches outside of their districts unless specifically authorized by law. 28 U.S.C. §636(a). Rule 41(b), which sets forth the territorial limits of warrants for various searches, did not, at the time of the issuance of the search warrant, authorize searches of computers outside of the issuing magistrate's district. (That was changed with an amendment to Rule 41 on December 1, 2016, following the numerous motions to dismiss filed all over the country as a result of the Playpen investigation.) The Court, like many, if not all courts that have considered this issue, concluded that the warrant should not have issued for any search outside of the Eastern District of Virginia. The Court considered, and rejected, arguments that the government has raised in other districts, such as the search was analogous to one using a tracking device (for which Rule 42(b) does authorize extra-territorial application) (see Note 2, infra), and that the violation of Rule 41(b) was not a violation of the 4th Amendment. ("[T]he Rule 41(b) violation was of constitutional magnitude because 'at the time of the framing . . . a warrant issued for a search or seizure beyond the territorial jurisdiction of a magistrate's powers under positive law was treated as no warrant at all.'") The warrant was void ab initio.

However, like many, though not all, other courts that have considered this issue, the Court concluded that the good faith exception prevented suppression of the evidence obtained from the computers ensnared in the investigation. It rejected Mr. Werdene's argument that the exception cannot apply to warrants that are void ab initio because such warrants do not have the force of law.  The Court ruled that the deterrence effect of the exclusionary rule is not advanced by a blanket rule excluding such warrants form the goof faith exception.

In this Circuit, there are four circumstances on which reliance on a faulty warrant is unreasonable:

1.  the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit;
2.  the magistrate abandoned his judicial role and failed to perform his neutral and detached function;
3. the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or
4. the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.

The Court found that none of these criteria applied to the E.D.Va. warrant. The Court also found that the FBI's reliance on the warrant was not unreasonable even though it violated an advisory in the U.S. Attorney's manual that suggested that '[a]gents should obtain multiple warrants if they have reason to believe that a network search will retrieve data stored in multiple locations." The advice in the manual was for attorneys, and not FBI agents, who are not expected to understand legal nuances the way that an attorney would.

Note 1. A district court, in a prosecution in another district arising from the same investigation and search warrant, considering a motion to dismiss due to outrageous government conduct, said of the entire investigation, "[T]he government's investigation had disturbing consequences: while investigating child pornography, the government facilitated the distribution of child pornography and did so in way that did not allow the pornography it distributed to be retrieved or cabined. Thus, the child pornography distributed by the government might live on and be redistributed in the internet ether for an indeterminate period. Furthermore, the Court is concerned by [the defendant's] allegations that traffic to Playpen increased after the government took over operation of the site." United States v. Allain. 1:15-cr-10251-ADB (D.Mass. 9/29/2016), https://www.gpo.gov/fdsys/pkg/USCOURTS-mad-1_15-cr-10251/pdf/USCOURTS-mad-1_15-cr-10251-0.pdf 

Note 2. In his concurring opinion, Judge Nygaard wrote that he would not have considered the tracking device argument because in the district court the government conceded that none of Rule 41's exceptions to the bar on extraterritorial scope of a search warrant applied. The Government argued that it could raise the issue on appeal because as the prevailing party, it could advance any reason in support of affirmance. Judge Nygaard would have held the Government bound to concessions it made in the district court.

Image from PC Magazine, "Inside the Dark Web," 2/4/2015, https://www.pcmag.com/article2/0,2817,2476003,00.asp