3d Cir allows consideration of crack/powder disparity

In what is certainly the best circuit decision on the issue, as well as the one most faithful to Booker, the 3rd Cir ruled in US v. Johnny Gunter, No. 05-2952 (click here) that district courts may consider the 100:1 crack/powder quantity differential, on which the guidelines for cocaine are based, as a factor in deciding what sentence to impose. Along the way, the Court also clarified the correct sentencing procedure post-Booker, and made clear once again that the guideline range is truly "advisory" and not binding on the courts. This is a must-read decision for all involved in federal sentencing in the 3rd Cir.

In Gunter, the defendant was found guilty of possession with intent to distribute more than 50 grams of crack cocaine (72.5 grams to be exact) and faced a guideline range of 295-353 months. Had the 72.5 grams been cocaine powder instead, the range would have been 111-123 months, because the guidelines treat 1 gram of crack as the equivalent of 100 grams of powder for offense level purposes. Defense counsel argued for a sentence below the guideline range on the basis of this disparity, pointing out that the Sentencing Commission itself has issued several reports finding that this disparity is unwarranted and treats crack offenses too harshly. The district court rejected defense counsel's arguments on the ground that the 100:1 crack/powder ratio was a legislative determination, and that the court was therefore bound by the guidelines range based on that ratio.

The Circuit ruled that the district court erred in concluding it did not have the discretion to consider the crack/powder differential, and in treating the guideline range as mandatory. The Circuit began with a review of the Sentencing Commission's findings over the years that crack and powder are pharmacologically indistinguishable, that the 100:1 ratio results in punishing low-level crack dealers more harshly than whole-sale powder distributors, that it has a disproportionate effect on African-American defendants, and that it overstates the seriousness of crack offenses.

The Circuit then reviewed the correct sentencing procedure, noting that sentencing under the now advisory guidelines is controlled by Section 3553(a), which "begins with the broad mandate that sentencing courts "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in the statute. This reference to what has become known as the "parsimony provision" is significant since it has frequently not be mentioned at all in other opinions addressing sentencing under Booker. The Court also set out the "three-step sentencing process" that district courts should follow post-Booker:

1) Calculate the guideline range correctly;
2) Formally rule on any
departure motions and explain how those rulings affect the guideline range;
3) Exercise discretion under section 3553(a) by considering the relevant
factors listed there and imposing sentence "regardless whether it varies from
the sentence calculated under the Guidelines."

The Court thus continues to distinguish between "departures" under the guidelines provisions (step 2), and "variances" under the section 3553(a) factors (step 3).

Next, the Court neatly harmonized the decisions of other circuits to have addressed the crack/powder issue, and noted with approval the more than "two dozen district courts (hardly a 'handful') that have used their Booker discretion to refuse to apply the 100:1 crack/powder cocaine discrepancy." While making clear that district courts cannot substitute their own ratio for the 100:1 ratio, the Court explained that "no circuit court has held that a sentencing court errs in simply considering the particular form of a drug involved in the offense as one of the many individual factors in imposing a sentence."

The Circuit then ruled that "post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines -- but no demanded by 21 U.S.C. 841(b) -- as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant section 3553(a) factors)." That was the error that occurred here, and thus the Court remanded for resentencing.

The penultimate sentence of this decision merits some discussion. The Court states, "Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten." Slip op. at 28-29. Read in context, it appears that this statement is a reference to the calculation of the guideline range in step one of the sentencing process, in which the guideline range must be correctly calculated on the basis of the 100:1 ratio. The Court is referring to the ruling in US v. Pho, 433 F.3d 53 (1st Cir. 2006), in which the First Cir. held that "the district court erred as a matter of law when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 ratio embedded in the sentencing guidelines." Id. at 64. Thus, in calculating the guideline range in step one, the district court cannot "construct[] a new sentencing range" based on a different ratio.

But at step three of the process, the district court exercises its discretion under section 3553(a) in setting the sentence "regardless whether it varies" from the guideline range. Thus at that stage the district court is free to consider what the sentence would be under a ratio (such as 20:1) that more accurately reflects the seriousness of crack in relation to powder. Indeed, consideration of the 20:1 ratio would be a good way for the district court to make its reasoning transparent, and would in effect be the sort of "analogic reasoning" that the Third Cir. has strongly encouraged district courts to use in sentencing outside of the guideline range. See US v. King, 2006 WL 1889976, *5 (3d Cir. 7/11/06) (courts sentencing outside range should look for a "suitable analogy" in other guidelines policy statements). As Gunter held, at step three, the district court is free to "consider the crack/powder cocaine differential," and this must necessarily encompass the discretion to consider what the sentence would be under a 20:1 differential, since the 100:1 differential is "simply advisory at step three." Gunter slip op. at 28.

Thus, as long as the district court does not categorically reject the 100:1 ratio in step one, it is free in step three to consider what the result of a different ratio would be as it exercises its discretion and treats the guideline range "as simply advisory."

Third Circuit finds reversible error in exclusion of expert testimony regarding reliability of eyewitness identification

In United States v. Brownlee, Case No. 04-4134 (3d Cir. July 18, 2006), the defendant was convicted of carjacking, use of a firearm in relation to a federal crime of violence, and possession of a firearm by a convicted felon. His convictions were based primarily on eyewitness identifications and inculpatory statements that he made to a law enforcement officer prior to being informed of his Miranda rights. The Third Circuit remanded the case for a new trial, finding that the District Court erred in excluding the expert witness testimony and in admitting the inculpatory statements.

At a pretrial Daubert hearing, the District Court excluded defendant's proffered expert testimony on the reliability of show-ups in relation to other identification techniques, the peculiar suggestiveness of the show-up in this case, confidence malleability, post-event suggestiveness, and the low correlation between eyewitness confidence and eyewitness accuracy. The Third Circuit held that the science underlying the type of expert testimony that defendant wanted to present on eyewitnesses is well-established. It further held that the expert testimony would have been helpful to the trier of fact and should have been admitted because the Government relied in part on the confidence of the eyewitnesses to bolster its case against defendant, and the defendant was arguing a theory of mistaken identity despite there being no "physical scientific means" by which defendant could undermine the eyewitness identifications or otherwise inform the jury that eyewitness confidence may not be correlated with accuracy. The Third Circuit then held that the erroneous exclusion of the expert testimony was not harmless, and remanded the case for a new trial in which the defendant should be permitted to present expert testimony on all of the proffered topics of expert testimony.

The Third Circuit also found reversible error in the District Court's admission of inculpatory statements made by the defendant in response to questions posed by a law enforcement officer before the defendant heard his Miranda rights. At the time he was questioned, the defendant was handcuffed and locked in the back of a police cruiser. The law enforcement officer (with whom the defendant was acquainted) asked defendant questions in a conversational manner. The answers to the questions would establish that the defendant had been driving the carjacked car, present at the scene of the crash of the car, and in possession of a firearm found at the scene of the crash. The Third Circuit found that even though the law enforcement officer may not have actively intended to elicit inculpatory statements, the defendant was subjected to custodial interrogation under these circumstances. It then held that the error was not harmless because, given the peculiar probative force of confessions, the inculpatory statements likely had a profound influence on the jury's decision.

Finally, the Third Circuit found that the District Court had not erred when it admitted eyewitness identifications that were the result of unduly suggestive show-ups. The Third Circuit found that while the eyewitnesses (1) identified the defendant while he was either handcuffed in the back of a police car or handcuffed and surrounded by police while standing next to a police car; (2) were permitted to see and hear one another identifying the defendant; and (3) were able to give only general descriptions of the suspect, there were sufficient indicia of reliability associated with the eyewitness's identifications that the admission of the identifications was not a violation of the defendant's due process rights. Rather, the flaws in the eyewitness's identifications were for the jury to consider when weighing the eyewitness testimony.

Third Circuit affirms post-Booker sentence modeled on pre-Booker sentence of defendant's co-conspirator

The Third Circuit affirmed a sentence that the District Court modeled on the sentence of the defendant's co-conspirator, which was issued prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 160 L.Ed.2d. 621 (2005) and under the then-mandatory Sentencing Guidelines. In United States v. Flores, No. 05-1271 (3d Cir. July 21, 2006), the District Court imposed a sentence of 32 months imprisonment for defendant's convictions of conspiracy to commit money laundering, money laundering, and conspiracy to structure currency transactions. The sentence is 38 months less than the bottom of the District Court's calculated advisory Sentencing Guidelines range. The District Court stated that it was issuing the 32 month sentence to avoid disparities between the sentences of the defendant and his co-conspirator.

Defendant argued that by modeling his sentence on a pre-Booker sentence issued under the mandatory Sentencing Guidelines, the District Court essentially and erroneously bound itself to the mandatory Guidelines, and that his sentence was therefore unreasonable. The Third Circuit affirmed the sentence. It found that the sentence was reasonable under Booker because the District Court (1) was aware that the co-conspirator's sentence was calculated under the mandatory Sentencing Guidelines; (2) did not consider the co-conspirator's Guidelines range binding; and (3) deliberately entered a sentence below the advisory Guidelines to "create parity with a far less culpable co-defendant."

The Third Circuit also held in this case that it did not need to reach the merits of the defendant's challenge to the District Court's calculation of his advisory Sentencing Guidelines range because the sentence issued by the District Court was within the Guidelines range that would have resulted if the District Court had calculated defendant's sentence in the manner suggested by the defendant.

New standard for reckless disregard of truth of law enforcement information

On August 24, 2006, the Third Circuit announced the standard by which the district courts should determine whether a government agent acted recklessly in relying on information provided by a sister government agency and including it in a search warrant affidavit. In U.S. v. Yusuf, No. 05-3484, an FBI agent presented an affidavit containing information that later proved to be inaccurate because of an error made by the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Although the district court concluded that the agent had acted in reckless disregard for the truth and excised the information from the affidavit, the Third Circuit noted the general presumption of reliability afforded information that law enforcement officers receive from each other for use in their investigations and set forth the test to be used when an affidavit is found to contain inaccurate information. In order to show that an agent has acted recklessly, the defendant must first establish that "that the information would have put a reasonable official o notice that further investigation was required." Then, he must present evidence "(1) of a systemic failure on the agency's part to produce accurate information upon request; or (2) that the officer's particular investigation into possibly inaccurate information should have given the officer an obvious reason to doubt the accuracy of the information."

Here, the defendants operated a chain of grocery stores in the Virgin Islands and the FBI was conducting an investigation to determine whether they had been laundering money for a drug trafficker. The VIBIR provided inaccurate tax records indicating that the defendants had underreported their income on tax returns by $54 million, and the FBI relied on that information to support allegations of tax fraud in the affidavit. When more information became available, it turned out that the defendants had underreported by a little more than $7 million. However, the agent on the case did not investigate to determine whether the records were accurate, and he admitted at a Franks hearing that he should have.

Regardless, the court concluded that the agent had not acted recklessly. In assessing an agent's failure to investigate further upon receipt of questionable information, the court explained, the district court must consider "whether a reasonable agent would have been aware of a systemic failure on the [sister] agency's part to produce accurate information upon request," and whether further investigation would give an agent reason to doubt the information's accuracy. In answering the first question, the district court should look at whether the agent knows that the sister agency has a history of providing inaccurate information, and whether it has procedural safeguards in place to prevent the dissemination of inaccurate information. As for the second question, the court should consider where the information comes from and what it concerns, whether there is a "reasonably plausible explanation" for the inaccuracy, and "the quality of the agent's attempts to validate the information."

In this case, the agent reported that neither he nor any other FBI agent had ever received inaccurate information from VIBIR, and that he had repeatedly asked VIBIR for an explanation of the discrepancy in the tax records that indicated the underreporting. VIBIR produced the information in response to a court order, which dispelled any suspicion that the two agencies colluded to submit a falsified affidavit. The FBI initiated the investigation, so it could not be alleged that VIBIR provided the information to conceal bad faith or an improper motive. Finally, VIBIR's insistence that the defendants underrepresented their income provided a reasonably plausible explanation for the error in the tax records. Therefore, the agent did not act in reckless disregard of the truth.

Discovery of significance of evidence does not make it newly discovered

In U.S. v. Cimera, No. 05-2360, the court considered a claim under the "newly discovered evidence" rule that it set out in U.S. v. Ianelli, 528 F.2d 1290 (3d Cir. 1976). Cimera was convicted on fourteen counts that arose from his participation in an illegal check cashing scheme, and after his motion for judgment of acquittal was denied, he hired new counsel. Upon further investigation of the checks that were the subject of the charges, the new attorney discovered a discrepancy in the account numbers printed on the back of the checks -- they were not all deposited into the same account. Cimera moved for a new trial, arguing that this was newly discovered evidence under this circuit's formulation of the test. The problem -- these checks had been admitted into evidence at trial.

Nevertheless, the district court granted the motion, concluding that Cimera had met the five requirements for newly discovered evidence: (1) the evidence has been discovered since trial; (2) the movant alleges facts from which the court can infer diligence on his part; (3) the evidence cannot be merely cumulative or impeaching; (4) the evidence is material to the issues in the case; (5) it must be shown that the newly discovered evidence would probably produce an acquittal at a new trial.

The district court noted that the discrepancy in the account numbers was newly discovered, and found that "it frankly was the exercise of truly extraordinary diligence by [substitute defense counsel] in coming into this case that generated what really is newly discovered evidence." The evidence also fulfilled the other three requirements -- it probably would lead a jury to acquit Cimera on at least some of the counts, it was material to the issues, and it was not merely cumulative or impeaching.

On appeal, the Third Circuit disagreed. Cimera had failed to identify newly discovered evidence, and even if he had, he did not satisfy the first two prongs of the five-prong test. While the digits themselves were considered evidence, the significance or relevance of the discrepancy in the digits was not. The court noted that several other circuits have reached the same conclusion. When evidence is in the possession of the defendant before trial, the defendant's realization of the relevance of that evidence does not make it newly discovered. In addition, in this case, Cimera presented no evidence to show that he and his trial counsel were unaware of the discrepancy in the account numbers at trial. Even if he had done so, the court concluded that he could have discovered the discrepancy by exercising reasonable diligence.

Aggravated felony - forgery sentence less than a year qualifies where loss exceeded $10,000

Lawful permanent resident was convicted of forging a check in the amount of greater than $10,000 and sentenced to four months imprisonment. In removal proceedings, the Immigration Judge and BIA found him removable as an aggravated felon, and he appealed. The definition of aggravated felony, 18 U.S.C. § 1101(a)(43), contains two provisions that appear to be in conflict as they apply to the case. Subsection (M)(i) states that an offense "that involves fraud or deceit in which the loss to the victim exceeds $10,000" is an aggravated felony, whereas subsection (R) states that "an offense relating to . . . forgery . . . for which the term of imprisonment is at least one year" is an aggravated felony. The alien argued that the provision relating specifically to forgery should apply to him.
The Third Circuit rejected the alien’s argument and determined that he was an aggravated felon. Bobb v. Attorney General, No. 05-2891, 2006 WL 2193065 (3d Cir. Aug. 3, 2006). While it found the alien’s statutory construction argument "inviting," it concluded that Congress intended that both provisions be given broad reach. Reasoning that someone can commit an offense "related to forgery" without necessarily intending to defraud or deceive, the Court concluded that giving both provisions broad reach did not render either provision surplusage. The Court also rejected the alien’s argument that his was a "hybrid" offense (which would require all requirements of both provisions to be met), because the hybrid offense analysis applies only where the specific provision (in this case forgery) is a lesser included offense of the broader category (offense involving fraud or deceit).

Room to Challenge a Prior Order of Removal/Deportation

On August 1, 2006, the Third Circuit reversed a reentry conviction, remanding with direction that the district court determine whether the alien was prejudiced by a fundamentally unfair reinstatement proceeding. United States v. Charleswell, No. 04-4513, 2006 WL 2129678 (3d Cir. Aug. 1, 2006).
Charleswell was a lawful permanent resident when he was convicted of possession of marijuana with intent to distribute, and the INS instituted deportation proceedings in 1991. Charleswell sought relief from deportation under then-available section 212(c). The Immigration Judge erroneously ruled that Charleswell was ineligible for such relief (mistakenly believing the Virgin Islands was not a U.S. territory), but Charleswell did not appeal and was deported in 1992. In 1997 he was found in Maryland and the INS issued a Notice to Reinstate the prior deportation order. Charleswell was deported in 2001 pursuant to that reinstatement. He was found in the Virgin Islands in 2002 and prosecuted for reentry, and sought to challenge the validity of his original deportation order as well as the reinstatement.
The Third Circuit recognized that, under 18 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828 (1987), a reentry defendant can collaterally challenge the validity of his prior deportation proceeding if he establishes that (1) he exhausted administrative remedies, (2) the hearing effectively eliminated the right to judicial review, and (3) the prior hearing was fundamentally unfair. Because Charleswell had failed to appeal the initial deportation order, the collateral attack was focused on the reinstatement order.
The Court agreed that Charleswell met the first element, because no administrative remedies are available to a reinstatement order. The Court’s key ruling came on the second element. The Court rejected the district court’s conclusion that judicial review was available. While an alien does have the right to appeal a reinstatement order, Charleswell did not have an attorney and he was never advised of his right to appeal the reinstatement order. Also, Charleswell had checked the reinstatement notice form indicating his desire to contest deportation. Under these circumstances, the Court concluded that Charleswell was "effectively denied an opportunity to seek judicial review." The Court directed strong language to the government suggesting that it amend its reinstatement form to reflect the right to appeal.
As to the third element, the Court held that an alien must show both that the prior proceeding suffered a fundamental defect and that the alien was thereby prejudiced. The court concluded that the INS’s failure to advise Charleswell of his right to appeal was fundamentally unfair. However, the Court remanded to the district court to determine whether Charleswell was prejudiced, i.e., "whether there is a reasonable probability that Charleswell would have obtained relief had he not been denied the opportunity for direct judicial review."

Broad discretion to investigate jury misconduct

On August 21, 2006, the Third Circuit held that where there is substantial evidence of jury misconduct during jury deliberations, "including credible allegations of jury nullification or of a refusal to deliberate," the judge has the discretion to conduct juror questioning or use other appropriate means to investigate.

In U.S. v. Boone, No. 03-1520, the jury sent several notes to the judge during deliberations, explaining that one of the jurors refused to deliberate because he had already made up his mind about the case before deliberations began. One of the notes also informed the judge that the juror had said "he does not believe anything the police said and thinks everyone is lying." The judge responded with a note reminding the jury of its oath to "well and truly try U.S. v. Kevin Boone . . . and render a true verdict." A final note included comments from both Juror X, the individual who had refused to deliberate, and from the foreperson, indicating that the jury had been deadlocked on several of the counts against the defendant for two days. The judge emptied the courtroom, except for the parties and his clerk, and questioned Juror X, determined that there was no misconduct and that further investigation would be unduly intrusive, and called the entire jury into the courtroom. He instructed the jury to continue deliberating until it decided that "no further discussions would be fruitful."

Boone objected to the note that ordered the jury to continue deliberating, arguing that it was unduly coercive, and that it directly threatened Juror X with perjury charges for refusing to change his mind. Rejecting that argument, the court concluded that it instructions must substantially and explicitly pressure the jury to reach a verdict or a particular result before they will be deemed coercive. This instruction, unlike instructions in other cases that the court cited, did not direct the minority jurors to change their minds (as in U.S. v. Fioravanti, 412 F.2d 407 (3d Cir. 1969)) or advise them that a new trial would lead to "great additional expense" (as the judge did in U.S. v. Burley, 460 F.2d 998 (3d Cir. 1972)).

Boone also challenged the district court's examination of Juror X, noting that in Third Circuit cases where such questioning has been approved, the allegations of misconduct arose during the trial, rather than during deliberations. While recognizing the fact that "the secrecy of deliberations is critical to the success of the jury system," and urging district court judges to exercise greater caution in conducting investigations of jury misconduct during deliberations, the court also pointed out that a refusal to deliberate violates the jury's sworn oath.

The troublesome aspect of the court's decision with regard to the examination of the juror is the court's rejection of the Second Circuit's practice of discouraging juror examination without unambiguous evidence of misconduct. It focused on the district courts' "broad discretion" in evaluating allegations of juror misconduct and its authority to determine the willingness of jurors to carry out their duties.

Finally, Boone objected to the district court's instruction to the full jury during deliberations, in which he advised the jury to continue deliberations if it felt it could reach an agreement, whether because the minority jurors changed their minds, or because the majority jurors did. The court rejected Boone's argument that it constituted an Allen instruction, which the Third Circuit has deemed reversible error except in "very extraordinary circumstances." See Fioravanti, 412 F.2d at 240. Rather than suggesting that the minority jurors held "less intelligent or reasonable views than the majority jurors," which would be reversible error, the instruction directed the jurors to continue deliberating until they reached an impasse.

Third Circuit affirms above-guidelines sentence; alternative sentencing ground is harmless error

The Third Circuit affirmed another above-guidelines sentence in an appeal contending that the plea was involuntary and the sentence unreasonable. In United States v. Schweitzer, No. 05-1301 (3d Cir. July 11, 2006), the court imposed a sentence nearly twice the bottom of the advisory range, noting that the sentence reflected consideration of the factors set forth in §3553(a). At the government’s suggestion, the court amended its decision to adopt an alternative sentencing ground, as an upward departure based on the guidelines’ under-representation of Schweitzer’s criminal history and likelihood of recidivism. On review, the Third Circuit determined that Schweitzer’s plea colloquy conformed to Rule 11 and constitutional mandates. The Third Circuit also held that the alternative, post hoc rationale of the upward departure had no effect on his sentence, which would have been imposed regardless, and thus any error was harmless.

Third Circuit affirms above-range sentence but urges adherence to Hickman and Kikimura

In United States v. King, No. 05-1728 (July 11, 2006), the Third Circuit affirmed as reasonable an above-guidelines sentence despite recognizing the district court’s failure to follow the ratcheting and analogic procedures set forth in Hickman and Kikimura. At sentencing, the court denied the government’s motion for an upward departure based on non-economic harm to the victim, instead considering that factor under § 3553(a), and imposed an above-guidelines sentence on the bases of harm to the victim, King’s criminal history, and his lack of remorse.

Identifying support for the court’s sentencing decision in its discussion of relevant § 3553(a) factors, the Third Circuit nevertheless instructed the district courts to follow the requirement to "consider" the Guidelines by calculating a Guidelines sentence as they would have pre-Booker, including ruling on motions of both parties and stating on the record whether they are granting a departure and how the departure affects the Guidelines calculation; to state adequate reasons for the sentence on the record; as well as to consider this Circuit’s pre-Booker case law, which continues to have "advisory" force, specifically noting that courts must follow the procedures in Hickman and Kikimura before determining the appropriate sentence to be imposed.

Third Circuit holds sentencing court understood its authority to consider acceptance of responsibility under §3553(a)

In United States v. Severino, No 05-3695 (3d Cir. July 11, 2006), the Third Circuit upheld a sentence within the applicable guidelines range against claims that the sentencing court failed to recognize its authority to consider unusual acceptance of responsibility as a valid sentencing factor under 18 U.S.C. §3553(a). In this case, Severino had gone so far as to compose letters to the banks and tellers he had victimized, expressing his remorse and accepting full responsibility for his actions. Though he sought a variance on his extraordinary acceptance of responsibility, the court denied this request, citing the amendments to the guidelines limiting such departures. He was sentenced to 63 months, the bottom of the advisory range. On appeal, the Third Circuit held that the district court properly understood its authority to consider extraordinary acceptance of responsibility, even if it failed to explicitly mention this factor in relation to other § 3553(a) factors, and merely exercised its discretion not to reduce the sentence. Finding that the district court gave meaningful consideration to the § 3553(a) factors, the Court affirmed Severino’s sentence as reasonable under Booker.

Grier decision on burden of proof at sentencing vacated and rehearing en banc ordered

As noted in an earlier blog posting, a panel of the 3rd Cir. in US v. Grier ruled on June 7th that the burden of proof on the government at sentencing regarding sentencing factors under the guidelines is by a preponderance in the post-Booker world. The court ruled that this lower standard applied even if the enhancement required finding that the defendant had committed another offense. Along the way, the panel also partially overturned the late Judge Becker's seminal decision in US v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which had ruled that facts which trigger a large increase in the offense level should be subject to a higher standard -- proof by clear and convincing evidence. Id. at 1101. The panel in Grier was split 2-1, with a vigorous and compelling dissent by Judge Sloviter.

On July 19, 2006, the 3rd Cir. granted Assistant Federal Defender Ronald Krauss' petition for rehearing en banc in Grier (click here), vacating the panel decision. The en banc argument will take place in November.

What this means, at least, is that the Kikumura "clear and convincing" standard for large ("tail that wags the dog") adjustments is once again the law of the circuit, and may very well be restored permanently. In addition, the en banc court could also agree with Judge Sloviter's "beyond a reasonable doubt" standard for adjustments, relevant conduct and other factfinding that increases a sentence and which would, in and of itself, establish a separate crime. Defense counsel should definitely be advocating or at least preserving those positions.

(Peter Goldberger contributed to this posting.)

Arrest warrant permits entry into dwelling if police have probable cause to believe that defendant is residing at and present in the residence

In United States v. Veal, No. 05-1612 (3d Cir. July 3, 2006), the Third Circuit held that under Payton v. New York, 445 U.S. 573, 603 (1980), an arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling if there is probable cause to believe that the suspect lives there and is located within. The Court noted that some courts have held that the police only need reasonable suspicion to believe that the suspect is residing at the location and present within to support entry into the dwelling under Payton, but the Third Circuit, under its own precedent, applied the probable cause standard.

In the case at hand, the Court cited numerous factors supporting the police's probable cause belief that Veal resided at his wife's home and was present in the residence on the day of his arrest. These factors included,among other things, the timing of the arrest, Veal's fugitive status, the presence of a car that he was known to drive outside the residence, his marriage to the listed resident of the home, and the fact that he had previously been living with his wife.

§ 4243 commitment orders after acquittal by reason of insanity appealable

The Third Circuit, in United States v. Stewart, No. 05-2732 (3d Cir. July 3, 2006), joined a few sister circuits in holding that a commitment order rendered under 18 U.S.C. § 4243 after a defendant's acquittal by reason of insanity was appealable. The Court further noted that it would review such claims for clear error. Finally, the Court affirmed the district court's denial of release to Mr. Stewart because testimony at his commitment hearing revealed that he required supervision and Stewart could not guarantee that he would receive the appropriate supervision upon his release.

Third Circuit Blog

Third Circuit Blog
In US v. Christopher D. Jones, No. 05-3001 (June 28, 2006), the 3d Circuit reiterated the stringent record a district court must make to effectively establish a knowing, intelligent, and voluntary waiver of the fundamental 6th Amendment right to counsel. Here, the court's colloquy failed to include the "penetrating and comprehensive examination" needed to permit a defendant to proceed pro se at a criminal trial. While no scripted inquiry is required, the court must cover all subjects -- to the extent they are relevant -- enumerated in the earlier case of US v. Peppers, 302 F.3d 120 (3d Cir. 2002). These include discussion of defendant's familiarity with the law, the charges, the rules of evidence and procedure, possible defense and penalties, investigating and subpoenaing witnesses, etc. An ineffective waiver of counsel, as was found here, can never be harmless error, and the conviction was vacated and the case remanded for a new trial.

Car Stop Upheld as Based on Reasonable Suspicion

In US v. Jervis Lavern Goodrich, No. 05-3071 (June 20, 2006) (click here) the 3rd Circuit upheld a car stop under Terry v. Ohio, finding that there was reasonable suspicion for the stop based on surrounding circumstances, even though the tip which prompted the stop was vague and imprecise.

State Police received a call at about 11:20 p.m. from a known informant in Mill Hall, Pennsylvania. The informant said that two people were carrying "buckets or something" across from a farm supply company. Police knew this supply company had experienced a number of thefts of anhydrous ammonia, which can be used for making methamphetamine. The informant said the two were "over behind R&M Gas" loading the buckets into a vehicle. The tip did not describe either the people or the vehicle. State Troopers dispachted to the scene arrived about 7 minutes later and saw only one car in the area - about one or two blocks from R&M Gas. They stopped the car, and ultimately discovered the driver was wanted for a parole violation. Police obtained a search warrant and found a 20 gallon propane tank containing anhydrous ammonia in the trunk. The district court found the stop was not a valid Terry stop, but denied suppression on the grounds of attenuation and independent source.

The Circuit affirmed but on different grounds. The Court found the stop was valid because, even though the tip was vague and imprecise, four surrounding circumstances contributed enough to constitute reasonable suspicion: First, the area was a "high crime area" because there had previously been 10-15 thefts of anhydrous ammonia from the supply company. Second, it was late at night. Third, the car was stopped within a block or two of the R&M Gas station. Fourth, there were no other occupied vehicles in the area.

The opinion is disturbing from a defense point of view because it appears to dilute the requirement of reasonable suspicion for a Terry stop. Unlike most informant tip cases, the tip here did not even provide a basis for thinking "crime was afoot." The tip only reported the innocent behavior of people loading something into a car. (And since anhydrous ammonia evaporates almost immediately and must be kept in sealed pressurized containers, the mention of "buckets" would seem to detract from reasonable suspicion.) The only basis for thinking something criminal might be happening was that there had previously been 10 to 15 thefts from a supply company across the railroad tracks, and it was near midnight. Arguably, the effect of this opinion is to abrogate any genuine requirement of "reasonable suspicion" for areas deemed by police to be "high crime areas" late at night. Hopefully, the Circuit will grant a petition to reconsider this opinion.

Rule 32(h) notice required for "departures" but not "variances"

In US v. Vampire Nation (Banks), No. 05-1715 (June 20, 2006), the 3rd Circuit addressed a number of issues. First, the Court ruled that the Rule 32(h) requirement that the district court give advance notice that it is contemplating a departure from the guidelines before applying such a departure does not apply to a "variance" from the guidelines based on the sentencing factors set out in 18 USC 3553(a). Noting the circuit split on the issue, the Court ruled that Rule 32(h) was meant to apply only to traditional "departures" allowed under the guidelines themselves, and not to "variances" from the guidelines now permitted under Booker. Emphasizing the "advisory" nature of the guidelines post-Booker, the Court reasoned that application of the Rule 32(h) notice requirement to variances "would elevate the advisory sentencing range to a position of importance that it no longer can enjoy." Since the notice requirement does still apply to departures, however, the Court added that "district courts should be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range."

The Court also ruled that the district court had statutory authority under 28 usc 2461(c) to issue an in personam forfeiture judgment against the defendant, and that the amount of this judgment could be based on the proceeds of the mail fraud, without being limited to the amount actually in defendant's possession at time of sentencing. Addressing other issues, the Court found the evidence was sufficient, that the district court's jury instructions did not constructive amend the indictment, that the witness tampering instruction was proper, that defendant's request to represent himself was not sufficiently clear so as to trigger a full inquiry by the district court, and that there was no need for the judge to have recused himself sua sponte because of a judicial misconduct complaint defendant filed before sentencing.

"Interstate Commerce" Includes U.S. Territories

In United States v. Polanco, (No. 06-1328, June 12, 2006), defendant was traveling on a commercial airline from the Dominican Republic to the Netherlands Antilles, and stopped en route in the Virgin Islands. U.S. Customs found him in possession of CD's and hard drive containing child pornography. He was charged under the Child Pornography Prevention Act of 1996, which encompasses various provisions aimed at interstate and foreign activities. Many of its provisions specifically apply to U.S. territories. However, the statutes charged, 18 U.S.C. sections 2252(a)(1)B) and 2252A(a)(1), apply by their terms only to "interstate or foreign commerce."

The defendant appealed the district court's denial of his motion to dismiss for lack of jurisdiction, but the Third Circuit affirmed. The court rejected the defense argument that by this language, which was narrower than specific language in related provisions, Congress intended not to reach U.S. territories. The court relied on the general definition section (18 U.S.C. s 10), defining interstate commerce to include territories. Recognizing that "inclusio unius est exclusio alterius" is a "key canon of our interpretive arsenal," the court declined to apply that canon "when it produces a patently absurd result," namely the creation of safe havens for child pornography.

3rd Cir rules 3553(f) - safety valve - still mandatory

In US v. Ricardo McKoy, No. 05-2461 (June 19, 2006) (click here) the 3rd Cir addressed how courts in the post-Booker world should apply the the safety valve provision, 18 usc 3553(f). This provision permits a sentence below the applicable mandatory minimum sentence under the drug trafficking laws if certain conditions are met. One of the conditions is that the defendant "not have more than 1 criminal history point, as determined under the sentencing guidelines."

Defendant had pled guilty to conspiracy to distribute more than 50 grams of crack cocaine. This amount triggers the 10 year mandatory minimum sentence under 21 usc 841(b)(1)(A), which the district court imposed over defense objection. Defendant argued that although he had 4 criminal history points, they were all for juvenile dispositions which should not count.

The Circuit affirmed, holding that the prior juvenile dispositions did count towards the criminal history points, and precluded application of the safety valve. The Circuit first rejected the defense argument that the juvenile dispositions should not count because under New Jersey law juveniles are not sentenced, but instead subject to a "dispositional hearing." The Circuit ruled that federal law controls regarding what constitutes a "sentence" for criminal history purposes, and "prior sentences" are defined to include juvenile sentences, even if they are not called "sentences" by the state. The Circuit likewise rejected the argument that the juvenile dispositions did not count because they were "diversionary," holding that they were not diversionary because there was no deferral of prosecution. Last, the Circuit rejected the argument that the courts should treat section 3553(f) as advisory under Booker. The Circuit reasoned that while Booker rendered the guidelines advisory by striking section 3553(b)(1), the Supreme Court left the remainder of 3553 in tact, including 3553(f). In addition, the Circuit noted that "Booker is inapplicable to situations in which the judge finds only the fact of the prior conviction." Since the criminal history points did not require the court to consider the underlying circumstances of the prior juvenile sentences, but just the fact of the prior convictions, there was no violation of Booker. Because the criminal history points counted, the safety valve was inapplicable and the 10 year mandatory minimum sentence was valid.

No jurisdiction to expunge criminal records in absence of challenge to underlying conviction.

In United States v. Rowlands, No. 05-3425 (3d Cir. June 9, 2006), the Third Circuit affirmed the district court’s dismissal of a petition for expungement of a criminal record. The petitioner had argued that federal courts had jurisdiction over petitions to authorize the expungement of criminal records pursuant to their inherent equitable power and pursuant to the All Writs Act, 28 U.S.C. § 1651. The Third Circuit rejected the equitable basis on the ground that petitioner was not challenging the validity of the underlying criminal conviction, and rejected the statutory basis on the ground that the cases cited by the petitioner had been superceded by cases in their respective circuits.

3rd Cir rejects challenge to constitutionally of Sentg Comm

In US v. Edward Coleman (No. 05-1348 June 15, 2006) (click here to link) the 3rd Cir. rejected a challenge to the constitutionality of the Sentencing Commission as reconstituted under the PROTECT Act. The defense, following a district court opinion in US v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004), had argued that the PROTECT Act violated separation of powers by changing the structure of the Commission to allow the President to appoint all Commission members from within the Executive Branch, instead of requiring, as before the Act, that at least three members be federal judges. The Circuit ruled that regardless of the composition of the Commission, in light of US v. Booker, 543 U.S. 220 (2005), the guidelines are no longer mandatory and thus the guidelines do not control sentencing anyway: "[T]he guidelines' recommended range may be modified or disregarded by a district court upon consideration of the other sentencing factors Congress has identified in section 3553(a)."

Although the Circuit rejected the Detwiler argument in light of the now advisory guidelines, the Circuit's reasoning is particularly significant and helpful because it emphasizes that the guidelines must be treated as being truly advisory in order to avoid constitutional difficulties. Reiterating its ruling in US v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Circuit explained that there is no "presumption of reasonableness" that "attaches to the Guidelines range." The Circuit then suggested that in other circuits, such as the 7th, that have adopted a presumption of reasonableness, the Detwiler argument might still have some force.

Third Circuit Rejects Beyond a Reasonable Doubt Standard in Judicial Factfinding of Sentencing Enhancements

In United States v. Grier, No. 05-1698 (3d Cir. June 6, 2006), the Third Circuit held that facts relevant to the advisory guidelines do not implicate the constitutional right to proof beyond a reasonable doubt, even when those facts constitute a separate offense. Rather, under the new advisory guidelines scheme, sentencing courts should continue to make factual findings by a preponderance of the evidence. At issue was a 4-level enhancement, pursuant to § 2K2.1(b)(5), based on the district court’s finding that the defendant had committed another felony offense (aggravated assault) in connection with the offense of conviction (unlawful possession of a firearm). The Court said that the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to trial by jury, attach only to those facts that constitute "elements" of the crime. Once those facts are established beyond a reasonable doubt, triggering a statutory maximum, judicial factfinding within the permissible range does not implicate those rights. The Court also overruled United States v. Kikumura to the extent Kikumura held that sentencing enhancements that can be characterized as "a tail which wags the dog of the substantive offense" require proof by clear and convincing evidence.

Of significance is a lengthy dissent by Judge Sloviter, in which she states that by "treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance [defendant’s] sentence, the majority has abrogated the Fifth Amendment to the United States Constitution." The split on the three-judge panel signals that a petition for further review may be warranted.

Third Circuit holds investigatory stop was not supported by reasonable suspicion and vacates conviction

In United States v. Brown, No. 05-1723 (3d Cir. May 22, 2006), the Third Circuit reversed the district court’s denial of Brown’s motion to suppress evidence seized during an investigatory stop due to a lack of reasonable suspicion, and vacated his conviction. Brown was approached by a police officer who told him that he matched the description of a robbery suspect, and that the victim was being brought over to identify him, after which he would be able to go free if he was not identified. The officer’s bases for approaching Brown included a radio description that included only race, age, and color of clothing, a tip by a friend of the robbery victim which was merely his observation that there were two black males at a nearby street corner, and that Brown was hailing a cab when the officer arrived. The police officer then demanded that Brown submit to a pat-down for weapons, which uncovered a gun. Although the government argued Brown was seized when he was handcuffed after his attempt to flee, the Third Circuit found that the seizure occurred when Brown was told by a police officer that a robbery victim was being brought over to identify him as a possible suspect. The Third Circuit held that Brown’s seizure was, further, without reasonable suspicion and therefore did not fall under the Terry exception to the warrant requirement of the Fourth Amendment.

Third Circuit lacks jurisdiction over appeal challenging extent of reduced sentence under Rule 35(b)

In United States v. McKnight, No. 05-1950 (3d Cir. May 19, 2006), the Third Circuit found that it lacked jurisdiction over an appeal challenging the extent of a Rule 35(b) sentence reduction. McKnight was originally sentenced to a 262-month term, but later received a reduction based on substantial assistance he provided to the government, reducing his sentence to 120 months. After he discovered that the government’s Rule 35(b) motion did not include mention of his brother’s assistance to authorities, McKnight filed a motion to correct his sentence, which the court rejected. The Third Circuit concluded that it lacked jurisdiction over the appeal, which it stated is "closely akin to challenging the extent of an U.S.S.G. § 5K1.1 order," and dismissed it, reasoning that it does not have jurisdiction to review a sentencing court’s discretionary decision to depart downward, nor does it have jurisdiction to consider an appeal from a § 5K1.1 order that does not allege a violation of 18 U.S.C. § 3742(a).

Judge Becker’s Last Criminal Law Opinions -- An Appreciation

The Third Circuit Blog team invited attorney Peter Goldberger to submit a comment as "guest blogger," in remembrance of Senior Circuit Judge Edward R. Becker (1933-2006):

This Blog on May 4 covered the Court's April 24 decision in United States v Risha. (Risha discussed the problem of when Brady material in the custody of state authorities will nevertheless be deemed to be in the constructive possession of a federal prosecutor.) We had no way of knowing then that Risha would, it seems, be Judge Becker's last precedential opinion on a criminal law issue. The former Chief Judge, a towering giant among federal jurists, died of cancer on May 19. Only 73 years old, he had been a federal judge for over 35 years.

Judge Becker was no pushover for the defense position on appeal -- no judge is, after all. Yet the Honorable Edward R. Becker was the defense lawyer's dream judge. Why? Because he had an open mind, was both tremendously intelligent and enormously knowledgeable (the old term "learned" comes to mind), and -- most important of all -- because he tried in each case to do the right thing, keeping in mind at all times that each case affects real people, and that every person matters. (We can only say "it seems" that Risha will be his final precedential decision, because the Court has already issued two posthumous Becker opinions in civil cases, finalized before but not processed for publication until after his untimely death.) As a district judge from 1970 through 1981, Becker was a pioneering advocate for procedural due process at sentencing. He emphasized the importance both of fair hearings and of articulated reasons for the sentence imposed. Once the Sentencing Reform Act and Guidelines were adopted, he was a tireless exponent of applying evidentiary rules, a heightened burden of proof, meaningful application of the parsimony principle, and enforcement of the rule of lenity in interpretation of guidelines and statutes. Most important, he always emphasized the continuing role for district court discretion under the Guidelines. Other important decisions insisted on strict proof of membership, specific intent, and agreement before convicting a defendant of conspiracy. He also authored the decision which required a cautionary instruction on the unreliability of eyewitness identification.

Risha may have been Judge Becker's last for-publication criminal opinion, but even more fascinating is the May 5 non-precedential decision in United States v Morris. Morris may present us with the great jurist's last criminal law opinion. Emblematic of his work ethic and devotion to justice for the individual, Judge Becker took the time to complete a lengthy dissent, just two weeks before his death. In the dissent, he argued that the denial of suppression should be reversed in this case because police had not satisfied one of the requirements for an inventory search -- compliance with the department's written policy. The Becker dissent shows Judge Nygaard's majority opinion to be predicated on a misreading of the police department’s own policy. It also demolishes Judge Fisher's concurrence (arguing for a "good faith" exception to the Supreme Court's requirement that police comply with their own inventory rules), in a classicly Beckerish four-paragraph-long footnote.

The majority in Morris affirms in part on grounds (inevitable discovery and search-incident-to-arrest) that the government never raised in the district court, and on which the record was inadequate and the defense did not have the opportunity to cross-examine. On these points, Judge Becker’s dissent takes the position that there should be a remand to develop those points. At least arguably, however, that was wrong. The burden of an inadequate record should have fallen on the government, as appellee, when it sought to invoke alternate grounds of affirmance it had not raised below. Steagald v United States, 451 U.S. 204, 209 (1981). Absent extraordinary circumstances, the government is not entitled to the benefit of a remand to correct deficiencies in the record of a suppression hearing, where it was not unfairly deprived of the opportunity to make its case in the first instance. Giordenello v United States, 357 U.S. 480, 488 (1958).

As Judge Becker himself liked to say, quoting the Latin poet Horace, "Homer nods." In other words, even the greatest will make mistakes sometimes. This procedural error in the dissent, if it was error, was nevertheless characteristic of several of Judge Becker's best traits: it shows how the highest value, for him, was to "get it right," and not to hold the lawyers -- even the lawyers for the government-appellee -- too strictly to a raise-it-below-or-lose-it appellate mentality.

When Judge Becker presided at oral argument, the red light meant nothing. Argument continued until all questions had been explored thoroughly. It always seemed like he had all the time in the world to try and "get it right." Alas, he did not have as much time as we would have wanted him to have, for our own sakes -- many more years of dispensing justice with an even hand, a keen intellect, and a kind heart.

Peter Goldberger, a former Assistant Federal Public Defender, clerked for Judge Becker in 1975-1976. For the last 20 years, he has maintained a national federal criminal defense appellate practice, now located in Ardmore, PA.

Involvement of an actual minor, as opposed to a government decoy, not a prerequisite to conviction under 18 U.S.C. § 2422(b), § 2423(b)

In United States v. Tykarsky, No. 04-4092 (3d Cir. May 10, 2006), the Third Circuit determined that, where a government agent poses as a minor online in an attempt to catch offenders who participate in "actual or attempted persuasion of a minor to engage in illicit sexual activity" (§ 2422(b)), or in "traveling for the purpose of engaging in illicit sexual activity" (§ 2423(b)), involvement of a minor is unnecessary, so long as the offender believes the victim to be underage. Consequently, the Court affirmed the defendant’s convictions, but vacated his sentence, finding an ex post facto error in application of the PROTECT Act’s prescribed mandatory minimum sentence to an offense possibly committed before enactment of the Act. The Court also ruled on a myriad of other issues.

In Tykarsky, the defendant made contact with a government decoy through internet chat rooms and instant messaging. Tykarsky engaged in explicit sexual discussions with the agent, requesting pictures and setting up a sexual encounter with the undercover agent, who posed as a 14-year-old girl. When the defendant arrived at the planned meeting, he was arrested. He was later convicted of violating § 2422(b) and § 2423(b).

Tykarsky argues that he cannot be convicted of either statute because no minor was involved. The Court disagreed, discussing the differences between legal and factual impossibility. Rather than decide the issue based upon these "thorny" characterizations, the Court looked to legislative intent. In doing so, the Court determined that the inclusion of an attempt provision in § 2422(b) indicated that the involvement of an actual minor, as opposed to a government decoy, was unnecessary.

The Court reached the same conclusion regarding § 2423(b), but based its decision on the plain language of the statute, noting that involvement of a minor was not an element.

Tykarsky next argued that § 2422(b) and § 2423(b) exceeded Congress’ powers under the Commerce Clause. The Court simply noted that this argument had been recently foreclosed in its decision in United States v. MacEwan, No. 05-1421 (3d Cir. Apr. 5, 2006).

The Court next rejected Tykarsky’s First, Fifth, and Eighth Amendment challenges to § 2423(b). Tykarsky argued that the statute lacked a meaningful actus reus and only punished thought while traveling interstate. The Court disagreed, noting that the statute prohibited such travel when done for a specific purpose and that criminal statutes often turn on the alleged offender’s intent.

The Court next rejected Tykarsky’s overbreadth and vagueness challenge to § 2422(b), noting that no protected First Amendment right was prohibited by the statute, and that the statute put ordinary individuals on fair notice of the prohibited conduct.

The Court also rejected Tykarsky’s Sixth Amendment grand jury challenge. He argued that the district court had impermissibly varied from the indicted offenses when charging the jury during trial. The Third Circuit disagreed, stating that the district court’s narrowing of the charges "added nothing new to the grand jury’s indictment."

The Court also rejected Tykarsky’s Sixth Amendment Confrontation Clause challenge, explaining that the district court did not abuse its discretion in limiting his cross examination of government witnesses. The Court also rejected a number of other attacks on his convictions without much discussion, before turning to Tykarsky’s challenge of his sentence.

Tykarsky argued that his sentence, mandated by the PROTECT Act, violated the ex post facto clause because the jury did not make a finding that his offense conduct actually occurred previous to the enactment of the PROTECT Act. His offense conduct, the illegal internet contact with a minor, straddled the date that the PROTECT Act was enacted, but absent a finding that the jury’s verdict was based on pre-PROTECT Act activity, the Third Circuit agreed, under plain error review, that Tykarsky’s sentence violated the ex post facto clause.

COA required to appeal denial of Rule 4(a)(6) motion in a § 2255 proceeding

Huh? Simply put, the Third Circuit, in United States v. Rinaldi, No. 04-2260 (3d Cir. May 8, 2006) rejected a habeas petitioner’s "convoluted" procedural effort to attack his sentence. After an earlier unsuccessful appeal, the petitioner, Rinaldi, filed a § 2255 habeas motion, which the district court denied on the merits. After the 3rd Cir. denied Rinaldi’s request for a certificate of appealability ("COA"), Rinaldi sought to reopen his case in the district court under FRCP 60(b). The district court denied his motion. Rinaldi then sought reconsideration under Rule 59(e), which the district court also rejected. The time to appeal the denial of his Rule 59(e) motion then expired, but Rinaldi attempted to reopen the time to file an appeal under FRAP 4(a)(6). The district court again denied Rinaldi’s request. Rinaldi appealed to the 3rd Cir.

Rinaldi argues that he does not need a COA now to appeal the district court’s Rule 4(a)(6) decision because the denial was not a final order under § 2253, the statute that requires a COA to appeal a § 2255 denial. The Third Circuit disagreed, stating, "we will grant a COA to challenge the denial of a Rule 4(a)(6) motion only if the § 2255 movant shows: (1) that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 4(a)(6) motion; and (2) that jurists of reason would find the district court’s assessment of the constitutional claims in the underlying order debatable or wrong."

The Court jumped straight to step 2 of this test, holding that the district court’s assessment of Rinaldi’s constitutional claims were not debatable or wrong. One of Rinaldi’s arguments was that he, as opposed to his court-appointed counsel, should have been permitted to cross examine his trial counsel at the evidentiary hearing exploring ineffective assistance of counsel.

Third Circuit rejects one variant of Booker-Ex Post Facto argument

The Third Circuit has turned away the argument that the maximum sentence for pre-Booker criminal conduct is what the Sentencing Guidelines would permit based on only admitted or jury-found facts. The defendant in United States v. Pennavaria argued that, at the time of his offense, the actual maximum punishment statutorily and constitutionally permitted was the one mandated by the Sentencing Guidelines without judicial factfinding (as confirmed in the Sixth Amendment ruling in Booker). Application of Booker's remedy holding to such conduct effectively increases that maximum punishment to the maximum set forth in the statute of conviction, in violation of Ex Post Facto and due process principles. The Third Circuit rejected this argument, reasoning that the Booker court directed application of both the Sixth Amendment and remedy rulings to pending cases and that defendants had "fair" -- although, it seems, mistaken -- warning pre-Booker that they were subject to the maximum punishment set forth in the statute of conviction based on judge-found facts.

Still alive in the Third Circuit is the related Ex Post Facto argument that punishment for pre-Booker criminal conduct is capped at the Guidelines range as determined with judicial factfinding and without any upward departure.

When will knowledge of impeachment material in the possession of state authorities be imputed to the government for Brady purposes?

In United States v. Risha, the Third Circuit revisits the issue of when the government will be charged with constructive possession of impeachment material for Brady purposes (here, information in the hands of state authorities). After being arrested on state charges, one Frank Caito disclosed his involvement in an unrelated arson and began cooperating in a federal arson prosecution of defendant Jesse Risha. Caito's state proceeding was continued until after his federal cooperation was completed with the conviction of Risha, at which time he entered into a favorable state plea agreement and was sentenced to probation after the state judge was informed of Caito's federal cooperation.

Risha sought a new trial, claiming a Brady violation in the government's failure to disclose Caito's forthcoming state plea agreement and his expectation of leniency at sentencing on the state charges. The district court granted the motion without detailed analysis of the government's actual or constructive possession of this impeachment material.

The Third Circuit found ample evidence of constructive possession in the record, but nonetheless remanded for specific factfinding by the district court on the knowledge issue. In doing so, the Court set forth three alternative triggers for when the goverment will be charged with knowledge of Brady material in the hands of state authorities: (1) if the party with actual knowledge is acting on the government's "behalf" or under its "control;" (2) if the state and federal governments are acting as a "team," are participating in a "joint investigation," or are sharing resources; and (3) if the government has "ready access" to the material.

Judge Nygaard filed a dissent, arguing for a new "reasonableness test" for determining whether the government should be deemed to constructively possess Brady material. This test would take into account whether the government was put on notice of the existence of the material and whether it took objectively reasonable steps to discover the material once put on notice. Although this test seemingly would lead to fewer successful Brady claims, Judge Nygaard would have affirmed the new trial grant in this case (without further factfinding) because the government was clearly put on notice of Caito's state charges and his potential state-side benefit, yet did nothing to investigate the matter.

Interesting ruling on scope of attorney-client privilege

Today, the Third Circuit, in In Re: Grand Jury Investigation, ruled on interesting issues regarding attorney-client privilege, the work-product doctrine, and the crime-fraud exception. The case reached the Court after the government subpoenaed certain documents and testimony regarding an attorney’s advice to his client. The district court upheld the subpoena, holding that the crime-fraud exception trumped the attorney-client privilege and work-product doctrine because there was evidence that the attorney had given the client advice in furtherance of her obstruction of justice. After surrender of the documents and the testimony of the attorney before the grand jury, but before an indictment was returned, an object of the investigation, Jane Doe, appealed the district court’s ruling.

The Court first discussed issues of mootness. Because the Court could order relief (i.e., return of the subpoenaed documents, possible injunction of future use of arguably privileged grand jury testimony) to Doe in the event that she prevailed, the Court decided that the appeal was not moot.

Doe argued that the crime-fraud exception should not override the attorney-client privilege where she did not initiate the communication with the attorney, and therefore was not soliciting advice. The Court disagreed and further stated that the government has the burden to show that the client was committing a crime or fraud and the attorney-client communications were in furtherance of such. The Court found some evidence of an ongoing crime: obstruction of justice. Next, the Court assessed whether the attorney-client relations were "in furtherance of" and not merely "related to" the criminal activity. (Interesting note: the district court had relied on a Not Precedential Opinion ("NPO") in determining that the appropriate test for "in furtherance of" was "related to." The opinion makes clear that this was not appropriate.) Nonetheless, because the district court agreed that the attorney-client communications qualified as being "in furtherance of" Doe’s possible obstruction of justice, and thus were subject to the crime-fraud exception, the Court affirmed the district court’s ruling.

Supervised Release Condition Prohibiting Employment with Attorneys Upheld

Today, the Third Circuit, in United States v. Smith, has upheld a condition of supervised release that prohibited the defendant from gaining employment with an attorney or law firm. In Smith, the defendant pleaded guilty to a wire fraud offense, where Smith held himself out as a legal consultant. Smith had some prior convictions that revealed similar activities.

After release from a federal correctional institution, Smith received an offer for employment from local attorneys. Smith’s program review team rejected this opportunity. Smith petitioned the district court to allow the petition. The district court denied it. Smith then filed a motion for reconsideration and the government sought a modification of Smith’s terms of supervised release to include a condition banning Smith from any such employment. The court rejected Smith’s motion and granted the government’s. Smith appealed.

Smith first argued that the district court "lacked the authority to modify the conditions of his release absent changed circumstances." The Third Circuit rejected this contention, noting that the job offer was a change in circumstances warranting the modification.

Smith also argued that the condition did not bear a reasonable relationship to his offense, and was likewise not narrowly tailored. 18 U.S.C. § 3583. The Court disagreed, stating that the condition of supervised release was reasonably related to the goals of sentencing and narrowly tailored to achieve deterrence, public protection, and/or correctional treatment.

The Court also assessed the condition under the reasonableness standard set out by Booker and Cooper, and deemed the condition reasonable under these individualized circumstances. See further coverage of this case on sentencing.typepad.com.

Ineffective assistance and the applicability of AEDPA

In Rolan v. Vaughn, the Third Circuit addressed numerous issues relating to habeas relief. The petitioner in Rolan had petitioned the PA state courts for post-conviction relief, based upon ineffective assistance of counsel, claiming that his attorney had failed to investigate possible defenses. The PA Superior Court ultimately denied such relief, simply ruling that any such deficient performance of counsel could not have prejudiced the defendant. On habeas, the federal district court did not apply the deference to the state court’s factual findings under AEDPA and granted relief, stating that counsel’s failure to investigate was, in fact, ineffective and prejudicial.

On appeal, the Third Circuit first addressed whether AEDPA should have applied. It first stated that AEDPA only applies if the PA Court rejected Rolan’s claim on the merits. The Court determined that the state court did adjudicate the claim on the merits, despite the state court’s decision to dispose of the case for lack of any potential prejudice, rather than on a factual determination as to whether or not Rolan received ineffective assistance of counsel. Thus, AEDPA’s deferential standard of review applied.

Therefore, the district court should have deferred to the state court’s findings of fact, unless a review of the record revealed that the state court’s findings were unreasonable. The Third Circuit then undertook this reasonableness inquiry. The Court determined that the findings of fact (regarding a particular witness’ willingness to testify for the defendant) made by the district court were unreasonable. Accordingly, after reviewing the record, the Court agreed with the district court’s ruling that Rolan had received ineffective assistance of counsel, because Rolan’s attorney failed to properly investigate possible defenses before trial. Because this ineffective assistance did prejudice Rolan’s trial, the Court affirmed the district court’s grant of habeas relief.

Reasonableness of sentence

In US v. Giaquinto (# 05-2212, 3/23/06), the Court applies its recent opinion in US v. Cooper, 437 F.3d 324 (3d Cir. 2006), in upholding a below-guideline sentence as "reasonable." This was a defendant's appeal in which defendant argued that her 23 month sentence, which was 7 months below the guideline range, was unreasonably high because her co-defendant, who was much more culpable, received only 30 months. The Court found that the judge considered the section 3553(a) factors and imposed a reasonable sentence.

Bank Fraud

In US v. Leahy (#03-4490) (panel decision) the 3rd Cir. provides the panel decision deciding the issues not addressed in the Court's en banc Leahy decision (which only addressed whether Booker applies to restitution and forfeiture). The Leahy panel decision is a lengthy one addressing jury instructions on bank fraud and related issues (good faith, willful blindness, intangible rights and co-schemer's liability), and affirming on these issues. The Court also affirms on the sufficiency of the evidence, but remands under Booker for resentencing and for recalculation of the loss amount.

Court defines scope of U.S.S.G. §2B1.1(b)(9)(C)(i) - unlawfully using a means of identification to produce another means of identification

In United States v. Newsome, Appeal No. 04-3292 (3d Cir. 3/9/06), the Third Circuit defined the scope of the U.S.S.G. §2B1.1(b)(9)(C)(i) - a two level enhancement for "the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." Newsome used the personal contact information and account information of bank customers to produce fake driver's licenses, employee identification cards, and pre-printed withdrawal slips. At sentencing, he contended that the enhancement should not apply because the new physical documentation contained the same means of identification - i.e. names, dates of birth, account numbers, etc. - as the existing means of identification used to create the new physical documentation.

The Third Circuit concluded that the enhancement could not be construed so narrowly. The new means of identification did not have to be "different," it just needed to be "additional." Accordingly, the Court ruled that when a means of identification is illegally used to produce an altered duplicate means of identification, the §2B1.1(b)(9)(C)(i) enhancement applies.

Customs Inspector Not Required to Give Miranda Warning to Man Suspected of Alien Smuggling

In United States v. Kiam, No. 5-1384 (3d Cir. Jan 3, 2006), the Third Circuit affirmed the district court's denial of a motion to suppress a statement given to a customs agent. The statement at issue was a second statement given after Miranda warnings were administered. The second statement was made, however, after the defendant had given an earlier confession to a customs inspector. Before that first statement, the customs inspector had not administered any Miranda warning.

The defendant, Long Tong Kiam, was convicted of alien smuggling. A citizen of Singapore, he was on the same Frankfurt to Philadelphia flight as three Chinese nationals. The Chinese nationals had presented Singaporean passports in Frankfurt, but did not have any passports with them upon arrival in Philadelphia. In previous weeks, customs agents had uncovered alien smuggling schemes whose characteristics matched those of Mr. Kiam and the Chinese Nationals. Mr. Kiam was escorted by Customs officials to, and was intereviewed by a Customs inspector in, a secondary inpsection area. Mr. Kiam was asked whether he had recently traveled to places reflected on his passport and whether he knew the three Chinese nationals. Upon being confronted with inconsistencies in his responses and the stories of the Chinese nationals, the defendant admitted illegally helping the aliens enter the country. At this point the customs inspector contacted Immigration and Customs Enforcement who sent an agent to the airport. The agent arrived, administered Miranda warnings and questioned the defendant for three hours during which the defendant gave a detailed confession identifying the scheme's mastermind.

The district court denied the defendant's motion to suppress the second statement. On the one hand, it held that the customs inspector should have given Miranda warnings during the first interrogation because he had a "particularized suspicion" that the defendant was involved in criminal conduct. On the other hand, it said any taint did not extend to the second post-Miranda confession.

The Third Circuit affirmed, disagreeing with the first conclusion, while agreeing with the second. The appeals court held that Mr. Kiam was not entitled to warnings during the first interrogation, as the inspector's questions "had a bearing on admissibility" to the country. The court declined to adopt an "across-the-board rule requiring border inspectors to immediately cut off their questioning if they think they may be going beyond what could be considered 'routine' immigration questoning." However, "Miranda may apply" when "the inspector's questions objectively cease to have a bearing on the grounds for admissibility and instead only further potential criminal prosecution." (emphasis supplied).

The appeals court next held that the second confession was admissible regardless of the determination made about the first confession. The court relied on Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004), and in particular Justice Kennedy's concurrence in Seibert (which provided the critical fifth vote in that case). The appeals court observed that, in Elstad, the Supreme Court held that if there was no coercion or improper tactics in the first questioning, a second statement would admissible if given after "a careful and thorough administration of Miranda warnings." In Seibert, Justice Kennedy held that if the first questioners made a deliberate choice to flout Miranda, then the second confession could only be admitted if curative measures were taken. By contrast, if the failure to provide Miranda warnings was inadvertent, then the second statement could be admissible under Elstad.

On appeal, Mr. Kiam did not contend that the first interrogator deliberately withheld Miranda warnings. Consequently, applying Elstad, the court of appeals saw no evidence that the first questioner engaged in coercion or improper tactics. Next, the Third Circuit said that the second questioner gave a careful and thorough administration of the Miranda warnings. Although not necessary for Mr. Kiam, the cure "mandated by Elstad was met in this case" and Mr. Kiam's waiver was knowing and voluntary. His second statement was admissible.

3d Cir rejects Speedy Trial challenge

The Third Circuit recently addressed a number of issues in United States v. Willaman, No. 05-1336 (3d Cir. Feb. 17, 2006). Willaman appealed his 18 U.S.C. § 922 conviction based on, among other things, the Second Amendment and the Speedy Trial Act. The Third Circuit quickly disposed of the Second Amendment argument, relying on United States v. Rybar, 103 F.3d 273 (3d Cir. 1996).

Next, the Court addressed Willaman’s speedy trial challenge. The Court noted that the Speedy Trial Act requires that a defendant pleading not guilty be tried within 70 days of either the filing date of the indictment or "the date the defendant has appeared before a judicial officer . . ., whichever date last occurs." Willaman was indicted on May 11, 2004. He then appeared before a magistrate for a detention hearing on May 12, 2004 and pleaded not guilty at his arraignment on May 17, 2004. Based upon dictum in United States v. Carrasquillo, 667 F.2d 382 (3d Cir. 1981), the Court decided that Willaman’s speedy trial clock began to run on the date of his arraignment, May 17, 2004, despite his appearance before a magistrate on May 12, 2004.

Thus, if the defendant is arrested before indictment, his pre-indictment physical appearance is sufficient to qualify as an appearance "before a judicial officer," thereby making the relevant speedy trial date the date of the indictment. However, if the defendant is indicted before he is arrested, his appearance in court is insufficient to start the clock for speedy trial purposes, unless and until he pleads not guilty to the offense.

The Court was satisfied that a distinction was justified because the Speedy Trial Act only applies to defendants that have pleaded not guilty. Therefore, a first appearance post-indictment does not qualify because the defendant has not pleaded not guilty yet. On the other hand, at a pre-indictment appearance, the defendant could not plead not guilty because he has yet to be charged. Thus, in that case, the indictment will trigger the Speedy Trial clock.

Due to the above rule, Willaman lost his speedy trial challenge because his trial, excluding the days needed to dispose of his pretrial motions, commenced 68 days after his arraignment.

Willaman also challenged both his statements to police and physical evidence under the Fourth and Fifth Amendments. The Court held that Willaman was informed twice that he was free to leave and was therefore not subject to custodial interrogation. The Court held that Willaman was not in custody during the interrogation or during his turning over physical evidence despite the interrogating officer’s conduct, including his comment that they "could do it the hard way or the easy way," and his showing Willaman a newspaper photo depicting a police raid.

Finally, the Court also rejected Willaman’s challenge of the indictment’s sufficiency. The Court held that a grand jury foreman’s failure to sign the indictment, though required by FRCP 6(c), is merely a technical deficiency, and thus does not warrant a dismissal.

3rd Cir., en banc, holds Booker inapplicable to forfeiture/restitution

The Third Circuit, in a very fractured en banc decision in United States v. Leahy, (3d Cir. Feb. 15, 2005), has ruled that Booker does not apply to either forfeiture or restitution. The 6-5 decision addresses both issues thoroughly and creates a number of splits among the judges, resulting in six different opinions. The issues are addressed as follows:

The Court, per Circuit Judge Fuentes, initially held that the Supreme Court’s pre-Apprendi decision in Libretti v. United States, 516 U.S. 29 (1995), still binds the circuit courts despite any erosion to the decision that has occurred since the 1995 Libretti decision. In Libretti, the defendant argued that his plea colloquy was inadequate because the district court failed to inform him of his right to a special jury verdict regarding forfeiture under former FRCP 31(e). The Supreme Court held otherwise, indicating "that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed." Id. at 49. In Leahy, the 3rd Cir. expressly noted the tension between Libretti and Booker, but decided that Libretti was still binding until the Supreme Court stated otherwise. The 3rd Cir. also ruled that Libretti similarly controlled any argument that forfeiture determinations must be made beyond a reasonable doubt.

Next, the Court turned to restitution, first addressing whether a restitution order was criminal or civil in nature. Pursuant to Pasquantino v. United States, 125 S. Ct. 1766 (2005), and United States v. Syme, 276 F.3d 131 (3d Cir. 2002), and a number of other Third Circuit and sister circuit decisions, the Court easily determined that an award of restitution under the Victim and Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA) is criminal in nature.

In assessing restitution under the Booker, the Court immediately determined that there was no Sixth Amendment distinction between the language in the VWPA or the MVRA; thus, the Court considered the two statutes together. Noting that Apprendi and its progeny explain that the Sixth Amendment requires facts that raise a defendant’s statutory maximum penalty be proven to a jury beyond a reasonable doubt or admitted, the Court then considered "whether a judge’s calculation of the sum a defendant must restore to his or her victim constitutes an increase in punishment exceeding that authorized by plea or jury verdict, in violation of the Sixth Amendment."

In answering this question, the 3rd Cir. stated that the restitution amount authorized by the governing statutes after a guilty plea or jury verdict is the "full amount of each victim’s losses." 18 U.S.C. § 3664(f)(1)(A). The defendants in Leahy pointed out that, in order for any restitution to be authorized, there must first be factual findings as to the amount of loss resulting from the defendants’ crimes. The 3rd Cir. disagreed, stating that "when the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction."

The 3rd Cir. decided that the restitution penalties here, though criminal, are different from enhanced terms of imprisonment as analyzed under the Sixth Amendment in Jones, Apprendi, Blakely, and Booker. The 3rd Cir. stated that the sentencing court can decide how much property and proceeds must be returned to victims as a result of the offense of conviction. The Court further reasoned that, although restitution penalties are criminal, they do not enhance the severity of a defendant’s punishment, as authorized by the defendant’s convictions, because restitution constitutes a return to the status quo, not an increase in sentence.

Eight different Circuit Judges combined to write six concurring and/or dissenting opinions in Leahy. Of note, Circuit Judge McKee penned a decision concurring in the judgment regarding forfeiture, but dissenting in relation to the Court’s holding on restitution. Judge McKee agreed that the 1995 Libretti decision controlled the forfeiture question, but acknowledged that the Supreme Court’s decisions since 1995, namely, Blakely and Booker, were difficult to reconcile with Libretti. McKee did not, however, agree that a sentencing court could determine the amount of restitution under either the VWPA or the MVRA consistent with the Sixth Amendment.

Judge McKee first notes the bright line rule of Apprendi and Blakely and points out that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Judge McKee further highlights that the majority, after conceding that restitution is a criminal sanction, inexplicably characterizes restitution as "not the type of criminal punishment that evokes Sixth Amendment protection" because it has "little in common with . . . prison sentences." Judge McKee asserts that this finding "sidesteps the analysis required by Blakely."

He further takes the majority to task for not answering the Blakely question at hand: "whether the verdict ‘alone’ allows the judge to impose restitution with no additional finding of fact." Judge McKee continues, "Obviously, it doesn’t." Judge McKee states that restitution is not authorized until additional findings are made regarding the amount of loss. Judge McKee finds no distinction between these findings and those that the Supreme Court found to be in violation of the Sixth Amendment in Blakely and Booker.

Judge McKee's opinion provides a much more thoughtful and thorough analysis of restitution under Sixth Amendment case law than does the majority's opinion. In addressing the majority's characterization of restitution, Judge McKee artfully describes the majority's analysis as a "pirouette," in reference to the Court's initial concession that restitution is criminal in nature, but later refusal to recognize that this determination subjects it to the Sixth Amendment, apparently due to the majority's own detection of certain civil aspects of restitution.

Third Circuit rules on Booker reasonableness review, jurisdiction, etc.

In United States v. Cooper, (3d Cir. Feb. 14, 2006), the Third Circuit has touched on a number of sentencing issues affecting the federal courts since the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), more than a year ago. First, the Court rejected, 2-1, the government’s assertion that the circuit court did not have jurisdiction to review post-Booker sentences imposed within the guidelines for unreasonableness. The Court affirmatively rules that it does, in fact, have jurisdiction under 18 U.S.C. § 3742(a)(1) to review for reasonableness. The Court states that an unreasonable sentence is one imposed "in violation of law," under § 3742(a)(1). The Court did not address whether a district court's imposition of a sentence "greater than necessary" under § 3553(a)'s parsimony provision is likewise imposed "in violation of law" under § 3742(a)(1). The Court also indicates that it may have such jurisdiction under 28 U.S.C. § 1291. Judge Aldisert, in dissent, asserts that the Court does not have jurisdiction to review within guideline sentences for reasonableness.

Second, the Court expressly declined to follow the lead of a number of its sister circuit courts that had ruled that a sentence imposed within the federal sentencing guidelines is presumptively reasonable. Rather, the Third Circuit notes that a within guidelines sentence only indicates that the district court considered one of the relevant § 3553(a) factors, rather than all of them. Thus, the circuit court, as directed by the Supreme Court, will continue to review sentences for reasonableness, whether it lies within or outside the applicable guidelines range. In reviewing for reasonableness, the Court demands that the record demonstrate that the district court gave meaningful consideration to the § 3553(a) factors, not just the guidelines. A "rote statement of the § 3553(a) factors should not suffice." The Court declares that it must be able to ascertain that, where properly raised, the district court not only considered the applicable § 3553(a) factors, but that it also "reasonably applied" those factors.

Note that while the Court indicates that sentencing facts under the guidelines need be proved by a preponderance of the evidence, the Court expressly withheld ruling on the standard of proof to be applied where a sentencing enhancement involves a separate crime.

Third Circuit Reverses District Court’s Order Granting § 2254 Petition for Habeas Corpus

In Satterfield v. Johnson, No. 04-3108 (3d Cir. Jan. 17, 2006), the Third Circuit held that a petition for post-conviction relief that was improperly filed under state law may not be considered "properly filed" for purposes of AEDPA’s tolling statute, § 2244(d)(2). Appeal was taken from the district court’s order granting state inmate’s habeas application under § 2254 based on counsel’s ineffective assistance. The Third Circuit deemed petitioner’s King’s Bench Petition to be improperly filed in the state court proceedings because, inter alia, he filed it with the Pennsylvania Supreme Court instead of the court in which he was convicted, contrary to Pennsylvania’s Post Conviction Relief Act ("PCRA"). Such an improperly filed petition did not toll AEDPA’s one-year statute of limitations, and thus his federal habeas petition was deemed time-barred unless equitable principles warranted tolling of the statute of limitations. In this case, where there were no allegations that the Commonwealth had misled petitioner regarding his claim, the Third Circuit determined that petitioner failed to demonstrate diligence or extraordinary circumstances justifying equitable tolling of AEDPA’s statute of limitations. Thus, the Third Circuit reversed the order granting the habeas petition and remanded for dismissal.

Third Circuit Affirms Mail Fraud Conspiracy Conviction in TOEFL Case

In United States v. Al-Ame, No. 04-3769 (3d Cir. Jan. 17, 2006), the Third Circuit affirmed defendant’s conviction of conspiracy to commit mail fraud, holding that defendant’s act of causing the Educational Testing Service ("ETS") to mail Test of English as a Foreign Language ("TOEFL") scores to his address was in furtherance of the conspiracy, and therefore his conduct constituted mail fraud under 18 U.S.C. § 1341. Defendant Al-Ame had paid an imposter to take the TOEFL on his behalf, who instructed ETS to mail the test results to Al-Ame’s home address. Upon receipt of the test results, Al-Ame intended to replace the photograph of the imposter with his own, and mail these results to his college.

On appeal, although Al-Ame argued that his scheme to defraud was complete at the time that the imposter took the test for him and thus the mailing of the TOEFL score to him was not in furtherance of the fraud, the Third Circuit explained that this mailing of the TOEFL score was a "critical step" in furtherance of the fraud, as were his receipt of the TOEFL score in the mail, and the mailing of the doctored score sheet containing the imposter’s score to his college. The Third Circuit also rejected Al-Ame’s second argument that ETS’s mailing of the score was routine and thus would have occurred without his fraudulent act. The Supreme Court has already rejected the notion that routine or innocent mailings are per se excluded from the scope of 18 U.S.C. § 1341. Moreover, although it is true that the mailing would have been sent regardless as required by law, he fraudulently induced ETS to mail him the TOEFL score, as there would have been no scores to mail at all had Al-Ame not hired an imposter to take the test for him. In affirming the conviction, the Court held that the conduct was mail fraud as defined in 18 U.S.C. § 1341, and therefore, the District Court had sufficient basis in finding him guilty of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.

Blakely-ized Indictment and Sentencing Interrogatories Given Thumbs Up By Circuit

In United States v. Hedgepeth, No. 04-4564 (3d Cir. January 12, 2006), the Third Circuit bestowed its approval upon a Blakely-ized indictment and special sentencing interrogatories. Subsequent to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), but prior to United States v. Booker, 125 S.Ct. 738 (2005), the Government filed a third superseding indictment in Hedgepeth's case adding a Notice of Special Findings containing three sentencing factors. The district court denied Hedgepeth's motion to strike the sentencing factors as surplusage and permitted a special verdict form to be submitted to the jury that included the three sentencing factors.

On appeal, the Third Circuit first clarified the standard for striking surplusage, holding that a court may strike surplusage from an indictment or information upon a defendant's timely motion only when the surplusage is both irrelevant (or immaterial) and prejudicial. Here, because the indictment was never revealed to the jury, there could be no prejudice. Accordingly, the Court affirmed the district court's decision denying Hedgepeth's motion to strike.

With regard to the special sentencing interrogatories, the Court held that special interrogatories are appropriate in the sentencing context when they are considered by the jury after a guilty verdict has been rendered. Here, the special verdict form was structured so that the jury was first instructed to determine Hedgepeth's guilt and only then move on to consideration of the related sentencing factors. The Court concluded that the structure of the special verdict form was sufficient to alleviate any danger of prejudice and affirmed the submission of the form to the jury.

Felon in Possession Not a Crime of Violence under Bail Reform Act

In United States v. Bowers, No. 05-4908 (3d Cir. Dec. 27, 2005), the Third Circuit has announced that felon in possession of a firearm, 18 U.S.C. § 922(g), is not a crime of violence for purposes of bail. The Bail Reform Act, 18 U.S.C. § 3142, requires a court to hold a detention hearing upon motion by the government if the defendant is charged with a crime of violence. The statute also lists factors to be considered in deciding whether to release a defendant, including whether the charged offense is a crime of violence.

The magistrate judge held a detention hearing and ordered Mr. Bowers detained. In affirming the magistrate’s order, the district court found that a detention hearing was justified solely because it deemed felon in possession a crime of violence. It also relied primarily upon this classification in upholding the magistrate’s decision to detain Mr. Bowers.

The Third Circuit disagreed with the district court’s rulings. In determining that the possession offense was clearly nonviolent, the Court agreed with the majority of its sister circuits that had addressed the issue, comprised of the D.C., Seventh, and Eleventh Circuits. See United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir. 2001); United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999). Only one Court had disagreed. See United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). Likewise, the Third Circuit noted that its decision was consistent with its earlier decision in Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998), where the Court held that a categorical approach is appropriate for determining whether particular offenses are crimes of violence and ruled that § 922(g) is not a crime of violence under a statute with similar wording to § 3142.

The Court then listed the most persuasive reasons for classifying felon in possession as a nonviolent offense. First, the Court noted that the plain language of the statute applies to crimes that "involve[] a substantial risk" of violence. The Court then noted that the conclusion that the § 922(g) possession offense was a crime of violence was laden with "factual assumptions." Second, the Court recognized that a person’s mere status as a felon does not establish that his possession of a firearm will ultimately turn violent. Third, the Court noted that, even if a felon does use his weapon violently, that does not render his possession offense violent. Fourth, even if felon in possession is classified as nonviolent, the government may still move to detain defendants charged with the offense for other reasons. Finally, the Court took note that the Sentencing Commission had similarly deemed crimes of violence to exclude § 922(g) offenses.

Ultimately, the Third Circuit, per Judge Becker, reasonably concluded that it was "unwilling to infer that a felon will use a gun violently merely because he owns it." The Court then vacated the district court’s order and remanded for the district court to determine whether Mr. Bowers’ detention was otherwise necessary.

Evidentiary hearing ordered in 2255 proceedings alleging ineffective plea advice

Rounding out 2005, the Third Circuit has ruled that a district court abused its discretion by dismissing, without an evidentiary hearing, a Section 2255 motion alleging that trial counsel failed to inform the defendant of the possibility of entering an "open" guilty plea once plea negotiations with the government collapsed due to the defendant's refusal to cooperate against potential co-defendants. The court of appeals reiterated its "reasonably low threshold" for entitlement to an evidentiary hearing: a hearing must be held whenever the files and records of the case are inconclusive as to whether the movant is entitled to relief, accepting the movant's factual allegations as true unless clearly frivolous.

Here, the movant alleged that trial counsel knew both that the evidence of guilt was overwhelming and that movant did not want to cooperate with the government, yet never advised him of the possibility of pleading open. Applying the Strickland standard, the court of appeals found sufficient allegations of deficiency of performance and prejudice to require an evidentiary hearing. As to performance, the movant made the specific allegations discussed above and the government's response, which relied on a declaration of trial counsel, did not rebut those allegations (presumably, a hearing would still be required to assess credibility even if the declaration had non-conclusively rebutted movant's allegations). As to prejudice, an open plea to the indictment "would have likely" resulted in a three-level reduction in movant's offense level for acceptance of responsibility (the absence of which exposed movant to an additional 19-30 months' imprisonment under the Guidelines), assuming as true movant's allegation that he would have truthfully admitted the underlying conduct.

The case is United States v. Booth, No. 03-3893 (3d Cir. Dec. 29, 2005).