The Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

 In Samia v. United States, No. 22-196 (June 23, 2023), the Supreme Court held that the Confrontation Clause was not violated by the admission of a non-testifying co-defendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241

 In Jones v. Hendrix, Warden, No. 21-857 (June 22, 2023), the Supreme Court ruled that 18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241. Petitioners who are restricted from filing a § 2255 petition can no longer seek relief under 28 U.S.C. § 2241 in lieu of § 2255, even if they are actually innocent or serving an illegal sentence. This is because the Supreme Court found that § 2255(e) - the savings clause - only covers individuals who literally cannot file a § 2255 motion. This holding abrogates the more favorable Third Circuit holding in In re Dorsainvil, 119 F. 3d 245, 251 (3d. Cir. 1997).

Third Circuit holds that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c) even when the conviction rests on aiding and abetting or Pinkerton liability

In United States v. Stevens, Appeal No. 21-2044 (3d Cir. June 12, 2023), Appellant Stevens challenged his § 924(c) conviction on two grounds. First, relying on United States v. Nedley, 255 F.2d 350 (3d Cir. 1958), Appellant argued that his conviction for Hobbs Act robbery must be vacated because the District Court failed to charge the jury on two elements previously read into the statutory definition of Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) - a specific intent to steal and a carrying away of the property. But those elements are absent from the Hobbs Act’s unambiguous statutory definition of “robbery,” and the Court acknowledged today that Nedley has been abrogated by intervening Supreme Court precedent. Therefore, the Court affirmed Stevens’s Hobbs Act robbery conviction. In addition, because Stevens’s robbery conviction qualified as a “crime of violence” under 18 U.S.C. § 924(c) regardless of whether it was predicated on the Government’s aiding and abetting or its alternative Pinkerton conspiracy theory, the Court also affirmed his conviction for that offense.

Third Circuit grants as-applied constitutional challenge to 18 U.S.C. § 922(g)(1) for individual convicted of welfare fraud nearly 25 years ago

In Range v. Attorney General, Appeal No. 21-2835 (3d Cir. June 6, 2023) (en banc), Petitioner Bryan Range was prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(1) by virtue of having a 1995 conviction for making false statements to obtain food stamps in violation of 62 Pa. Stat. Ann. § 481(a), a crime Pennsylvania classifies as a misdemeanor punishable by up to five years in prison. He sued seeking a declaration that § 922(g)(1) violates the Second Amendment as applied to him. The Court agreed, holding 11-4 that the government did not carry its burden of proving that disarming him is consistent with the Nation’s historical tradition of firearm regulation. There were six opinions, between the majority, concurrences, and dissents.

Potentially broad impact: The various opinions exhaustively debate whether Range has a narrow or incredibly broad impact. Here are the immediate takeaways:

(1) not all felons are covered by § 922(g)
(2) felons “like Range” are not
(3) what “like Range” means remains to be determined: minor fraud, all fraud, all nonviolent, all nonthreatening to public order when armed, all felons, other?

Stay tuned for further developments!

Resolving a circuit split, Supreme Court holds that sentence imposed under 18 U.S.C. § 924(j) can run either concurrently or consecutively to another sentence

In Lora v. United States, Case No. 22-49 (June 16, 2023), the United States Supreme Court resolved a circuit split and held that 18 U.S.C. § 924(c)’s bar on concurrent sentences does not extend to a sentence imposed under a different subsection, 18 U.S.C. § 924(j). A § 924(j) sentence therefore can run either concurrently with or consecutively to another sentence.

Supreme Court holds that when a conviction is reversed because the prosecution occurred in the wrong venue, retrial is allowed and does not violate the Double Jeopardy Clause

In Smith v. United States, Case No. 21-1576 (June 15, 2023), the United States Supreme Court held that the Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district. The Court found that a judicial decision on venue is fundamentally different from a jury’s general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision cannot be upset by speculation or inquiry into such matters by courts. Conversely, retrial is permissible when a trial terminates on a basis unrelated to factual guilt or innocence of the offense of which the defendant is accused, e.g., juror deadlock. Similarly, the reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of acquittal” under Rule 29, plainly does not resolve the bottom-line question of criminal culpability. In this case, then, the Eleventh Circuit’s decision that venue was improper did not adjudicate Smith’s culpability, and thus does not trigger the Double Jeopardy Clause.

Supreme Court defines when a defendant "uses" a means of identification "in relation to" a predicate offense under 18 U.S.C. § 1028A

 In Dubin v. United States, Case No. 22-10 (June 8, 2023), the United States Supreme Court considered the limits of when a defendant "uses" another person's means of identification under 18 U.S.C. § 1028A. The Court found that a defendant “uses” another person's means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal. The Government suggested a broader reading of "uses" to cover any situation where a defendant employs a means of identification to facilitate or further the predicate offense in some way. The Court found this reading too broad, finding that § 1028A(a)(1) would thus apply automatically any time a name or other means of identification happens to be part of the payment or billing method used in the commission of a long list of predicate offenses.

The sixteen-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(i) for a "drug trafficking offense" includes both completed and inchoate offenses, even conspiracies without overt acts

 In United States v. Garcia-Vasquez, Appeal No. 22-2219, the Third Circuit held that the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015) applies to anyone with a prior conviction for a “drug trafficking offense.” The enhancement’s text captures a wide swath of “offense[s],” both completed and inchoate, and even conspiracies without overt acts. Therefore, the Court held it need not consider the Guideline’s commentary or the rule of lenity and affirmed the district court's application of the enhancement.

Third Circuit affirms District Court's suppression of evidence where Government forfeited potentially winning argument

 In United States v. Donte Dowdell, Appeal No. 21-3251, the Government appealed the District Court's order granting the defendant's motion to suppress evidence. In the District Court, the government argued that the law enforcement officer who stopped Dowdell had reasonable suspicion to believe crime was afoot, which justified the officer opening Dowdell's car door. After opening the door, the officer saw in bulge in Dowdell's jacket at chest-level. He immediately ordered Dowdell out of the car and patted him down, revealing a fully loaded semi-automatic firearm with a bullet in the chamber. The District Court granted Dowdell's suppression motion after finding that the government failed to establish reasonable suspicion.

After ruling that the evidence would be suppressed because the government failed to establish that the officer opened the door without violating Dowdell’s Fourth Amendment rights, the District Court suggested that the government might have made an alternative argument that Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), could be extended to permit officers to order people out of a car during a valid traffic stop without requiring reasonable suspicion to do so. Because the government failed to raise this alternative argument, however, the District Court found it had been waived and refused to rule on the issue.

On appeal, the Third Circuit acknowledged that it had not yet decided whether police officers may open car doors during routine traffic stops based on less than reasonable suspicion without violating the Fourth Amendment. The District Court suggested that the Supreme Court’s decision in Wilson might be extended to cover those circumstances. But the government never raised or litigated that argument in the District Court. So the argument was forfeited. And the
argument the government did make—that the police officer had reasonable suspicion to believe crime was afoot that justified his opening the car door—was invalid. The Court further held that the District Court did not abuse its discretion when it did not excuse the government’s forfeiture. For these reasons, the Court found the rule of law required it to affirm the order of the District Court.

Circuit Judge Fisher, in a dissenting opinion, would have vacated the District Court's order and remanded for further proceedings. Judge Fisher argued that the District Court's waiver determination was based on an incorrect application of the law. Nor was it clear to Judge Fisher that the government failed to preserve a Wilson-extension argument below. Even if the government had failed to properly preserve the Wilson-extension argument, Judge Fisher would have reversed the District Court's suppression order because "courts are obligated to apply the legal principles they identify as correct, and the District Court correctly recognized that officers do not require reasonable suspicion to open a car door when conducting a traffic stop."

The subtraction requirement in 18 U.S.C. § 3583(h)'s final clause cannot be followed where a defendant is serving a life term of supervised release

 In United States v. Simmons, Appeal No. 22-2485, the Third Circuit resolved an open question regarding 18 U.S.C. § 3583(h)'s subtraction clause. Agreeing with the majority of circuits to consider the issue, the Court held that § 3583(h)'s subtraction requirement cannot be followed where a defendant has a life term of supervision because it is impossible to quantify a life sentence. 

The Court also upheld the district court's re-imposition of a lifetime term of supervised release upon revocation despite the defendant's significant mental health issues.

Two wins in the Third Circuit interpreting whether PA aggravated assault statute is an ACCA predicate: United States v. Marc Harris and United States v. Samuel Jenkins

United States v. Marc Harris, https://www2.ca3.uscourts.gov/opinarch/171861p.pdf 

United States v. Samuel Jenkins, https://www2.ca3.uscourts.gov/opinarch/182222p.pdf

In United States v. Harris, -- F.4th --, 2023 WL 3494771 (3d Cir. May 17, 2023), the Third Circuit held that because first degree aggravated assault, 18 Pa. Con. Stat. § 2702(a)(1), requires proof that the defendant inflicted serious bodily injury upon his victim, but does not require proof that the injury result from a defendant’s “use of force,” it is not categorically a violent felony under the ACCA elements clause.

The decision was controlled by the Court’s decision in United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018) which decided that (a)(1) is not categorically a violent felony. Since Mayo, the Third Circuit petitioned the Pennsylvania Supreme Court for a controlling decision on 18 Pa. Con. Stat. § 2702(a)(1), which that Court granted. The Pennsylvania Supreme Court held that attempted or actual infliction of serious bodily injury is a required element, but the perpetrator need not use force to inflict such an injury. Criminal liability is not tethered “to the use or attempted use of physical force but, instead, to the infliction of a specified harm, i.e., serious bodily injury, regardless of the means by which the harm is inflicted.”  United States v. Harris, 289 A.3d 1060, 1074 (Pa. 2023). Thus, the Third Circuit’s decision in Mayo was correct and would be applied to Harris. Note that the opinion called the outcome “counterintuitive”: “Although excluding aggravated assault under Section 2702(a)(1) from ACCA’s scope may be counterintuitive, it is the consequence of the Act’s restricted, and perhaps sometimes under-inclusive, application.” 

In United States v. Jenkins, -- F.4th --, 2023 WL 3516086 (3d Cir. May 18, 2023), the Third Circuit held that because 18 Pa. Cons. Stat. § 2702(a)(3), second-degree aggravated assault of a protected individual, can be violated by a “failure to act” (the minimum conduct criminalized by the statute), convictions under this sub-section are not categorically “violent felonies” under the ACCA elements clause. The Court took no position on if section (a)(3) can be violated by offensive touching. Because the state statute was overbroad, the realistic probability test—which requires defendants to show “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime” – did not apply. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Note that the final section of the opinion discusses the “bizarre” results that the categorical approach necessitate: “The categorical approach requires this upside-down result even though criminal sentences should be governed by justice and fairness, not formalism.”

A recap of other decisions regarding PA aggravated assault:

Not a violent felony:

First-degree aggravated assault, 18 Pa. Cons. Stat. § 2702(a)(1), “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (can be violated by omission). United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018).

Categorically a crime of violence under the Sentencing Guidelines:

Second-degree aggravated assault, 18 Pa. Cons. Stat. § 2702(a)(4), “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon” (bodily-injury + deadly-weapon elements indicates that the provision can be violated only through the use or attempted use of physical force, not by omission). United States v. Ramos, 892 F.3d 599, 611–12 (3d Cir. 2018).

Third Circuit amends local rules: new 5:00 p.m. E.S.T. deadline for filings (electronic and otherwise) will become effective on July 1, 2023.

The Third Circuit adopted amendments to its Local Appellate Rules (L.A.R.), creating a new L.A.R. 26.1 and modifying L.A.R. Misc. 113.3(c). The amended rules create a uniform 5:00 p.m. E.T. deadline for filings (electronic and otherwise) and will become effective on July 1, 2023.

Press release: 

extension://elhekieabhbkpmcefcoobjddigjcaadp/https://www.ca3.uscourts.gov/sites/ca3/files/FinalOrderAdoptingRule26.1.pdf

Supreme Court win: Percoco v. United States

Percoco v. United States, 598 U.S. ----, --- S.Ct. ----, S.Ct. No. 21-1158, 2023 WL 3356527 (May 11, 2023)

https://www.supremecourt.gov/opinions/22pdf/21-1158_p8k0.pdf

Defense win! Percoco was convicted, among other offenses, of honest services fraud under Second Circuit law that private citizens owe a duty of honest services to the public even when not in public employ or delegated public responsibilities if they “dominated and controlled any governmental business” and “people working in government actually relied on” them.  The Supreme Court found this theory void for vagueness and reversed and remanded because the instructional error was not harmless.

Supreme Court win: Ciminelli v. United States

Ciminelli v. United States, 598 U.S. ---- --- S.Ct. ----, S.Ct. No. 21-1170, 2023 WL 3356526 (May 11, 2023)

 https://www.supremecourt.gov/opinions/22pdf/21-1170_b97d.pdf

 

Defense win: Writing for a unanimous Supreme Court, Justice Thomas held that the Second Circuit’s right-to-control theory cannot form the basis for a conviction under the federal fraud statutes because the right to valuable economic information needed to make discretionary economic decisions is not a traditional property interest. The government conceded that the right-to-control theory was invalid but sought to save the conviction on remand under a fraudulent inducement theory: that Mr. Ciminelli had committed property fraud by engaging in a fraudulent scheme (colluding with the insiders connected to Andrew Cuomo’s administration to be a preferred bidder for contracts in a one billion dollar infrastructure investment campaign) for the purposes of obtaining money (the contract value). This fraudulent inducement theory is questionable as it would make it a federal fraud to lie to obtain property even if there was no deprivation/wronging/harming/loss/even intended loss.

US Sentencing Commission video recordings of hearings on proposed amendments to US Sentencing Guidelines

February 23, 2023

Topics: Compassionate release

February 24, 2023

Topics: Sex abuse of a ward, acquitted conduct

https://www.ussc.gov/policymaking/meetings-hearings/public-hearing-february-23-24-2023

(5:51 on February 23 starts the panel of formerly incarcerated individuals re: compassionate release)

March 7, 2023

Topics: Firearms offenses, fake pills, First Step Act (drug offenses), Circuit conflicts

March 8, 2023

Topics: Career offender, criminal history

https://www.ussc.gov/policymaking/meetings-hearings/public-hearing-march-7-8-2023

NOTICE: On February 23 and 24, 2023, the Sentencing Commission is holding hearings on proposed amendments to the US Sentencing Guidelines on the topics of: 

• Reductions in Sentencing/aka Compassionate Release
• Prohibition of Use of Acquitted Conduct at Sentencing
• Guidelines for Sex Abuse of a Ward

The hearings will stream live at this link:  two days of hearings 

Written testimony is available at that link also, and Defender witness testimony is also available on the website of Sentencing Resource Counsel, here. 

There will be additional hearings on March 7 and 8, on Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History.

 

Help us determine the future of the Third Circuit blog?

Greetings Blog readers, 

We are trying to determine how this Third Circuit blog can best suit your needs. 

If you have thoughts and suggestions, please email alison_brill@fd.org. Thank you!

  

 

Sufficiency of Evidence for Bribery, Extortion and Related Charges in Political Corruption Trial

U.S.A. v. Edwin Pawloski and U.S.A. v. Scott Allinson

 

These cases were consolidated for trial and on appeal for dispositional purposes. As their facts are intertwined with one another, they are joined here for summarization

 

U.S.A. v. Edwin Pawlowski, No. 18-3390 (3d Cir.3/4/2022)

 

Sufficiency of evidence for bribery, extortion and false statements/ requirement of quip pro quo for bribery and extortion convictions/ entitlement to re-cross examination/ 18 U.S.C. §3553       

 

Pawlowski was convicted of federal programs bribery, Travel Act bribery, attempted Hobbs Act extortion, wire and mail fraud, honest services fraud, making false statements to the FBI, and conspiracy. The charges arose from his term as mayor of Allentown, when he allegedly steered contracts and provided other favors in return for campaign contribution.

 

Pawlowski first alleged that the government failed to prove a quid pro quo required for proof of the bribery and extortion charges —18 U.S.C. § 666(a)(1)(b); Travel Act bribery, 18 U.S.C. § 1952(a)(3); Hobbs Act extortion, 18 U.S.C. § 1951; wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; honest services wire fraud, 18 U.S.C. §§ 1343, 1346; and honest services mail fraud, 18 U.S.C. §§ 1341, 1346. (Though the Supreme Court has yet to extend the quid pro quo requirement to bribery charges, the parties assumed that it applied to extortion and bribery, and the Court proceeded on that assumption.)  He also argued that there was no overt act to sustain a conspiracy charge in relation to the bribery charges.  Because politicians both seek money from constituents and in the normal course of their business do things for them, McCormick v. United States, 500 U.S. 257 (1991), imposes a higher burden of proof— the government has to proves a quid pro quo— “an explicit promise or undertaking by the official to perform or not to perform an official act” in exchange for the donation. A vague expectation of future benefits is not enough. 

 

The Court then detailed evidence that a quid pro quo existed with seven individuals or entities. The first consisted of Pawloski’s securing a favorable inspection and expediting a zoning request on behalf of a developer. The second concerned a contract delinquent tax collector who, after a presentation soliciting city business, was pressured into giving a campaign contribution, tickets to an Eagles payoff game, and a steak dinner. In return Pawlowski exerted pressure on city officials and the contract was awarded. Third, an architectural firm was told that to be considered for some city work it needed to make a contribution. Once it did, Pawlowski and co-conspirators exercised pressure on a board reluctant to reward the contract to change its mind and do so. Before the contract was signed Pawlowski asked the firm for an additional contribution, and after expressing reluctance and receiving another request for the funds, the firm paid up. Fourth, an engineering firm desirous of getting contracts to fix streets spoke to Pawlowski and came away believing that without campaign contributions it would not get the job. Despite the contributions, it did not get the job, but Pawlowski and his co-conspirators continued to seek donations, promising future contracts. Fifth, a law firm (the once involved in the companion Allinson  opinion) gave several thousands of dollars in campaign contributions after conversations with Pawlowski’s co-conspirators led it to believe they would lead to a solicitorship. Sixth, Pawlowski thought a principal of a company that sought to provide Allentown with streetlights was politically influential and he sought to steer a contact its way. At the suggestion of a co-conspirator the company contributed to Pawlowski’s political benefit. The company then submitted language for the city’s RFQ, which despite Pawlowksi’s direction, was not incorporated into the RFQ. Pawlowski wanted the employee who refused the request fired. There was more back and forth, more contributions, and the contract was awarded. Finally, a cybersecurity company sought a contract with the city. Pawlowski, in return for donations and the promise of fundraising on his behalf, secured the contract for the company. All these incidents contained proof of the requisite quid pro quo.

 

Pawlowski challenged the sufficiency of the evidence for convictions for making false statements to the FBI. Evidence that Pawlowski told the FBI he did not engage in many of the bribery and extortions act of which he was convicted or for which there was evidence he acted contrary to his statements was sufficient to prove the statements were false.

 

Pawlowski complained that he was wrongfully denied an opportunity to re-cross examine a cooperating co-conspirator. At issue was a false statement the witness, prior to his cooperation during the investigation, made on tape to an undercover agent that was false. On re-direct, the witness said he made the false statement because at the time he did not trust the undercover agent. The trial judge did not allow re-cross because he deemed the matter not material. The court noted that Pawlowski could have called another witness to the conversation who might have offered the evidence he wanted to adduce on re-cross but declined to do so. The error, if any, did not require a new trial.

 

Finally, the court upheld the 180 month sentence imposed on Pawlowski. Despite evidence that most persons convicted of the same crimes received sentences anywhere from 30% or 60% of that imposed. And an avalanche of character evidence, the court found that the sentence was imposed after due consideration of the factors enumerated in 18 U.S.C. §3533(a). 

 

U.S.A. v. Scott Allinson, No. 19-3806 (3d Cir. 3/4/2022)

 

Quid pro quo required for bribery and extortion convictions/ variance between charge of single conspiracy in indictment and proof of multiple conspiracies at trial/severance of cases joined for trial

 

Allinson, a partner in a law firm displeased with the amount of business it received from the city of Allentown, given past campaign contributions to the mayor from partners. He was soon told that a parking authority solicitor would be fired and replaced with one of Allison’s partners, but a contribution to a party thrown by the mayor was needed. Allinson responded by offering to write a $2500 check. Allinson wanted and was promised the appointment would be made in a way that Allinson would receive credit from his firm for the appointment. Allinson reiterated this demand several weeks later to the mayoral subordinate he had been dealing with. He also conditioned fulfillment of a request for a $12,500 contribution on his firm’s receiving the solicitorship. Several other conversations occurred with mayoral subordinates, the mayor, and the law firm chairman, during which the solicitorship was dangled from demands for more money, and Allinson in return demanding results. The firm contributed more money as discussions proceeded about how to go about getting rid of the authority’s current solicitor and replacing him with a designee of the law firm. This evidence supported Allinson’s conviction for violating 18 U.S.C. § 666(a)(2): to “corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward [a government agent] in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.” Allison’s convictions for federal programs bribery, 18 U.S.C. § 666(a)(2), and conspiracy, 18 U.S.C. § 371 were affirmed. 

 

Allinson first contended that the evidence did not demonstrate an explicit quid pro quo. The court however found that all the conversations showed that Allinson did contribute to the mayor’s campaign for the purpose of obtaining the solicitorship. Allinson’s claim that there was insufficient evidence of an official act required for conviction of 18 U.S.C. § 201(b)(2), which makes it a crime for “a public official or person selected to be a public official, directly or indirectly, corruptly’ to demand, seek, receive, accept, or agree ‘to receive or accept anything of value’ in return for being ‘influenced in the performance of any official act” failed. An official act, pursuant to McDonnell v. United States, 136 S. Ct. 2355 (2016), is “a ‘question, matter, cause, suit, proceeding or controversy’” involving a “specific,” “focused,” and “formal exercise of governmental power.” The pending parking authority solicitorship qualified as a matter that would be pending before a public official in his official capacity. 

 

Allinson clearly wanted the mayor to use his official capacity to help his firm receive the appointment. Allinson’s argument that the government failed to prove the contract was worth more than $5000— recorded conversations showed Allinson expected much more than that form the contract, and he also agreed to contribute funds far in excess of that amount. 

 

Allinson also claimed the indictment, which alleged a single conspiracy, varied from the proof at trial, that he claimed proved only multiple unrelated conspiracies. Where an indictment charges a single conspiracy but the evidence at trial proves only multiple, separate conspiracies, a variance occurs. But unlike a “pure” sufficiency-of-the-evidence challenge, a variance challenge will successfully overturn a conviction only where the discrepancy between the indictment and the proof at trial prejudiced the defendant’s substantial rights. The Court agreed that the government did not prove a single conspiracy. However, despite the proof of multiple conspiracies, the proofs of the conspiracies were segregated, and the court’s jury instructions mitigated the chance the proof of the other conspiracies would unfairly prejudice Allinson. This claim thus failed.

 

Allinson next claimed that because he or his firm were never awarded a contract, the bribery conviction must fail, as he claimed the indictment alleged. The failure to prove the award of a contract amounted to a prohibited constructive amendment of the indictment. The Court disagreed, reading the indictment to allege that Allinson sought the award of a solicitorship. 

 

The Court rejected Allinson’s claim that the government’s closing misstated the law when saying “Bribery happens with a wink and a nod and sometimes a few words, an understanding between two people, we all know what’s happening here. You’re giving me this, I’m giving you that.” As the term “winks and nods” appears in a Supreme Court decision, Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring), it was accurate statement of the law. Moreover, the indictment did not, as Allinson alleged, state the government need only prove an implicit, and not explicit agreement, as the law requires. 

 

Finally, the Court found that Allinson’s motion to sever his case from Mayor Pawlowski’s was properly denied. His case was not so complex that the juror’s could not segregate his evidence from Pawlowski’s. The evidence against him consisted largely of his own recorded statements. The trial court’s instructions also minimized any danger of confusion in the minds of the jurors. 

 

Third Circuit specifies appellate standard of review for denial of hearing under Franks v. Delaware

Under Franks v. Delaware, a defendant may challenge a search warrant affidavit that contains false statements or omissions. See Franks v. Delaware, 438 U.S. 154 (1978). Such challenges to veracity are explored through an evidentiary hearing known as a Franks hearing. To obtain a Franks hearing, a defendant must make a substantial preliminary showing that (1) a false statement or omission was made knowingly and deliberately, or with reckless disregard for the truth, and (2) the false statement or omission is material to the probable cause determination.

In United States v. Desu, No. 20-2962, 2022 WL 69078 (3d Cir. Jan. 7, 2022), a tax fraud prosecution, the district court denied the defendant a Franks hearing. The Third Circuit affirms. In doing so, Desu specifies the appellate standard of review for the denial of a Franks hearing: “For the first element, [the Court] will review for clear error a district court’s determination regarding whether a false statement in a warrant application was made with reckless disregard for the truth. For the second element, [the Court] will review de novo a district court’s substantial-basis review of a magistrate judge’s probable cause determination.” Id. at *1.

Incidentally, the Court already applies this standard of review to the denial of a Franks claim after a hearing. See United States v. Brown, 631 F.3d 638, 642 & n.4 (3d Cir. 2011).

In addition, Desu rejects the defendant’s claims that (1) the deliberating jury received an exhibit with missing pages, (2) the indictment failed to state an offense under Marinello v. United States, 138 S. Ct. 1101 (2018), (3) the court excluded defense witnesses as irrelevant under Rule 401, (4) the government constructively amended of the indictment, and (5) the court miscalculated the tax loss under Sentencing Guideline § 2T1.1 cmt. n.3.