Convictions in Pennsylvania state court for simple assault and third-degree murder can qualify as “crimes of violence” for purposes of career offender designation under U.S.S.G. § 4B1.1.

In United States v. Marrero, No. 11-2351 (3d Cir. April 25, 2012), Ricardo Marrero, who pleaded guilty to two counts of bank robbery, appealed his sentence, arguing that the District Court erred in classifying him as a career offender under U.S.S.G. § 4B1.1, because two of the required three convictions for career offender status were not "crimes of violence": (1) simple assault (18 Pa. Cons. Stat. Ann. § 2701(a)(1)); and (2) third-degree murder (18 Pa. Cons. Stat. Ann. § 2502(c)). Marrero argued that neither conviction qualified as a crime of violence because both of his convictions could have been based on conduct that was reckless, rather than intentional. And if either one of these prior offenses were not a crime of violence, then he should not have been designated and sentenced as a career offender.

The Third Circuit rejected Marrero’s argument as to both convictions, finding that the District Court properly ruled that both were crimes of violence.

As to simple assault, the Court reasoned that for the simple assault conviction to satisfy the "residual clause" in § 4B1.2(a)(2), referring to offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another," the Court would have to find that it "typically involve[s] purposeful, violent, and aggressive conduct." To determine whether the simple assault conviction was for intentional or knowing conduct, rather than merely reckless or negligent conduct, the Court applied the "modified categorical approach," in which the Court can examine "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Here, in the plea colloquy, Marrero admitted to placing his hands around his wife’s neck and attempting to pull her up a flight of stairs. The Court found that the District Court properly ruled that this conduct constituted intent to cause bodily harm, which the Third Circuit has already held to qualify as a crime of violence.

As to third-degree murder, the Court looked to § 4B1.2 (Application Note 1), which states that the term "‘crime of violence’ includes murder," and so is an "enumerated" offense for purposes of the crime-of-violence analysis. For such enumerated offenses, the categorical approach of United States v. Taylor, 495 U.S. 575, 602 (1990) applies, and so "no inquiry into the facts of the predicate offense is permitted . . . ." The Court concluded that third-degree murder under Pennsylvania law is equivalent to the enumerated offense of "murder" and thus qualifies as a crime of violence for purposes of the career offender designation.

Signatories of trust fund account not in position of trust vis-a-vis the IRS for purposes of 3B1.3 sentencing guidelines enhancement.

In United States v. DeMuro, Nos. 11-1887, 11-1941 (3d Cir. April 23, 2012), the Third Circuit affirmed convictions of James and Theresa DeMuro for conspiracy to defraud the United States, and failure to turn over more than $500,000 in federal employment taxes collected from employees at their engineering company, much of which was spent on purchases from QVC and Home Shopping Network. But the Court remanded for resentencing because the District Court erroneously applied the two-level enhancement of U.S.S.G.
§ 3B1.3 for abuse of a position of trust.

The DeMuros challenged their convictions based on several evidentiary rulings admitting and excluding various evidence. None of the rulings seem remarkable, and so not surprisingly, the Court concluded that none were an abuse of discretion. That conclusion may have been inevitable in light of the additional red-flag argument that even if no single error alone would support relief, the cumulative effect of the rulings so infected the jury’s deliberations, etc. A very quick LEXIS check of the past 20 years found no cases in which the Third Circuit accepted that argument, which seems to be the appellate equivalent of a last-second Hail Mary pass from your own 1-yard line.

But what did find success (and presumably the reason the Court designated this case precedential) was the sentencing argument that the District Court erred in applying a two-level enhancement to the base offense level for abuse of position of trust, under U.S.S.G. § 3B1.3. The District Court applied the enhancement based on the DeMuros’ conduct with respect to the trust fund account imposed by the IRS, into which the DeMuros were obliged to pay company trust fund taxes within two days of withholding the taxes, but instead, withdrew from this account and closed it without IRS permission.

The Third Circuit ruled that the enhancement did not apply because the DeMuros did not satisfy any one of the three factors required for finding that they occupied a position of public or private trust, which requires considering: (1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests defendant vis-a-vis the object of the wrongful act; and (3) whether there has been a reliance on the integrity of the person occupying the position. Although the Government argued that the error was harmless because the ultimate sentence happened to fall within the correct sentence range (i.e., as if calculated without the 3B1.3 enhancement), the Third Circuit refused to find harmless error where the calculated Guidelines range was erroneous.

Guideline Enhancement Not Mentioned in Rule 11(c)(1)(C) Plea Agreement Applies to Defendant

In United States v. Dahmen, No. 11-1521 (March 27, 2012), the Third Circuit addressed an interesting issue of whether the Government violated a Rule 11(c)(1)(C) plea agreement when it recommended a Chapter 4 enhancement that was not specifically mentioned in the plea agreement.

The Defendant pleaded guilty to transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) and possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). The agreement specified the base offense level for each count and referenced certain sentencing enhancements pursuant to Chapters 2 and 3 of the Guidelines, but made no mention of any enhancements pursuant to Chapter 4. The agreement also contained a waiver of appellate rights subject to three limited exceptions: (1) if the Government appealed; (2) if the sentence exceeded the statutory maximum; or (3) if the sentence exceeded the applicable Guidelines range. The agreement also noted that its “stipulations [were] not binding on the Court and [did] not preclude the parties from bringing to the attention of the United States Probation Office or the Court any other information.”

Before accepting the plea, the District Court clarified that although the plea agreement indicated that the stipulations made between the parties were not binding on the court, that language was incorrect. The Court explained that if it accepted the plea, the stipulations would be binding because the nature of the stipulations fall under the classifications set forth in Rule 11(c)(1)(C).

The Government objected to the PSR claiming that the Guidelines were subject to enhancement pursuant to USSG §4B1.5(b), which applies to defendants who engaged in a pattern of activity involving prohibited sexual conduct. The Probation Officer agreed and amended the PSR.

The Defendant did not contest the application of the enhancement but instead argued for a variance on the basis that USSG §4B1.5(b) was redundant because the factors it addressed were already contemplated by USSG §§2G1.3, 2G2.2 and 4A1.1, all of which were included in the plea agreement. The Court disagreed, denied the variance and sentenced the Defendant within the enhanced guideline imprisonment range.

First, the Third Circuit determined that the appropriate standard of review was plain error because of the Defendant’s failure to object in the District Court, citing Puckett v. United States, 556 U.S. 129, 134 (2009).

Second, the Circuit rejected the defense argument that once the District Court deemed itself bound by a written plea agreement that made no mention of the enhancement in question, it was prohibited from applying the unmentioned enhancement at sentencing. The District Court referred only to the paragraphs of the plea agreement which addressed only Chapters 2 and 3 of the Guidelines, relating to calculations of base offense level, conduct-related enhancements, and adjustments for multiple counts. Neither the District Court nor the written plea agreement mentioned §4B1.5(b) or any other Chapter 4 enhancements, which relate to criminal history.

Finally, the Circuit did not reach the Defendant’s issue that his sentence was unreasonable, as his appellate waiver prevented such review.

Court rejects sufficiency challenge to knowledge of conspiracy; finds no error in not granting new trial, use immunity, or suppression

Court rejects sufficiency challenge to knowledge of the conspiracy; finds no error in not granting a new trial, refusing to grant use immunity to a co-conspirator, and not suppressing statements and weapons; and affirms sentences.

In United States v. Whiteford, 10-1023 & 10-1373 (3d Cir. Apr. 13, 2012), two defendants were convicted after a jury trial of conspiracy, 18 U.S.C. § 371, involving bid rigging and contract steering, and related offenses. Both defendants were officers in the U.S. Army Reserves deployed to Iraq from 2003 to 2004 who held positions in a regional office of the Coalition Provisional Authority which made them responsible for selecting and managing reconstruction projects and overseeing disbursement of millions of dollars. Six other people, including two businessmen, other reserve officers, and contract employees, were also charged with and pleaded guilty to this conspiracy. The Third Circuit affirmed the convictions and sentences.

First, the Court found there was sufficient evidence to establish each defendant’s participation in the conspiracy. The defendants conceded there was adequate proof of an agreement and an overt act but contested knowledge. The Court noted that willful blindness can satisfy the knowledge prong of a conspiracy charge. See also Third Circuit Model Criminal Jury Instructions § 5.06 (“No one can avoid responsibility for a crime by deliberately ignoring what is obvious.”). The Court also rejected that the government had to prove the United States was an intended target of the conspiratorial scheme because the defendants had been charged with the offenses, not defraud, prong of the conspiracy statute, which only required an intent to violate federal law.

The Court rejected that the jury charge was deficient because it failed to name the co-conspirators. The indictment included the names of more than one co-conspirator and so the identity of the co-conspirators was not treated as an element of the offense.

The Court rejected that the trial court erred in not granting a new trial because a private attorney (a new associate not yet barred) might have appeared to be coaching a key government witness from the audience during trial. If this information could be considered newly discovered evidence, it would not “probably produce an acquittal” because there was no evidence the witness falsified his testimony.

The Court rejected that it was error for the court to refuse to grant use immunity to a co-conspirator. The government was not intentionally disrupting the fact-finding process by not granting immunity but instead wanted to avoid having a Kastigar hearing when it prosecuted this co-conspirator. The testimony was not essential to the defense because it was not “clearly exculpatory”: multiple portions of the witness’s statements to the police had inculpated the defendant.

The Court rejected defendant Wheeler’s argument that his motion to suppress statements and weapons was erroneously denied. Some of the conspirators considered starting their own company and received a shipment of weapons in the United States that they moved them from one location to another. Wheeler kept some of the weapons. FBI agents contacted Wheeler and eventually went to his home to investigate. When the agents arrived, Wheeler informed them he had consulted an attorney and that the attorney directed him to cooperate unless he “got stumped.” The Court determined these remarks were not an objectively identifiable request for counsel, and did not amount to invocation of Fifth Amendment rights. In addition, Wheeler’s Miranda waiver was sufficient because he signed an Advice of Rights form, and there was no evidence of intimidation or coercion. The Court rejected the proposition that a defendant must know the charges against him to validate a Miranda waiver.

Finally, the Court affirmed that the loss calculations appropriately attributed to defendants the value of the bribes they reasonably could have foreseen their co-conspirators receiving.

Rules of Evidence (not Bruton) apply to admission of non-testimonial statements, § 924(j) incorporates 924(c)'s consecutive sentencing scheme . . .

The Rules of Evidence (not Bruton) apply to admission of non-testimonial statements by co-defendants, 18 U.S.C. § 924(j) incorporates the consecutive sentencing scheme of 924(c), and other trial issues deemed not reversible error (improper admission of 404(b) evidence, prosecutorial misconduct and jury charges).

United States & Gov’t of Virgin Islands v. Berrios, Nos. 07-2818, 07-2887, 07-2888 and 07-2904 (3d Cir. Apr. 10, 2012), is an appeal from a four defendant trial for the federal charges of carjacking, attempted robbery, 18 U.S.C. § 924(c), and causing the death of a person through use of a firearm, 18 U.S.C. § 924(j), and the Virgin Island charges of felony murder and unauthorized use of a firearm. The Court affirmed the convictions and sentences. While the Court primarily addressed the intersection between the Confrontation Clause and Federal Rules of Evidence and between 18 U.S.C. §§ 924(c) and (j), this case provides a good outline of the relevant appellate analysis of prosecutorial misconduct (vouching during witness examination and closing argument) and faulty jury instructions.

Some of the evidence admitted at trial came from a Title III recording of two of the defendants made while they detained and being investigated for unrelated charges. The question was what could be admitted against the non-recorded co-defendants. In light of Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143 (2011), the Court set forth a twofold inquiry. First, determine whether an out-of-court statement or portions of it are testimonial. If the statement is testimonial, the Confrontation Clause prohibits admissibility unless a witness is unavailable and there was a prior opportunity for cross-examine. If the statement is non-testimonial, admissibility is governed solely by the Rules of Evidence and not the Roberts “indicia of reliability” test. (Rejecting contrary interpretation in United States v. Jiminez, 513 F.3d 62 (3d Cir. 2008) and Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007)). The Court acknowledged that the Rules of Evidence address similar concerns of reliability as Roberts.

This distinction requires different standards of appellate review. Fundamental constitutional errors – that affect substantial rights – require automatic reversal. All other constitutional errors may be disregarded if they are harmless beyond a reasonable doubt. Non-constitutional errors are harmless when it is highly probable that the error did not prejudice the defendant. See United States v. Diallo, 575 F.3d 252, 264 (3d Cir. 2009).

The Court determined that, here (not categorically), the Title III recordings were non-testimonial. Thus, because Bruton v. United States, 391 U.S. 123 (1968)) was a “by-product” of the Confrontation Clause, and the statements on the Title III recording were non-testimonial, Bruton did not preclude admission of the statements against the non-recorded co-defendants. The Court rejected cases that had held otherwise. See Monachelli v. Graterford, 884 F.2d 749 (3d Cir. 1989) and United States v. Ruff, 717 F.2d 855 (3d Cir. 1983). Under the Rules of Evidence, the recordings were admissible as statements against penal interest, Rule 804(b)(3) – braggadocio that inculpated the speakers as well as other co-defendants.

The Court rejected the double jeopardy challenge to imposition of consecutive life term sentences for felony murder (V.I. law) and 18 U.S.C. § 924(j)(1). The Court found clear legislative intent to impose multiple punishments for a single underlying transaction. 924(j) expressly requires a 924(c) violation, penalizing a person who causes a death “in the course of committing a violation of subsection (c).” The Third Circuit concluded that 924(j) extends the penalty regime “imposed under” subsection (c), incorporating the consecutive sentence mandate in 924(c)(1)(D)(ii), which is the “veritable raison d’etre” of the statutory scheme. Such an interpretation avoids the anomalous result that 924(c) requires a consecutive sentence except when a firearm was used during a violent crime and a murder occurred. Although the Court concluded 924(j) was not merely a sentencing enhancement for (c), it also declined to resolve here whether 924(j) was a discrete offense.

The Court also found that 404(b) evidence, statements by one defendant about loose ammunition, was too attenuated to fall into the government’s suggested pattern of false exculpatory statements to show consciousness of guilt – but that the error was harmless. The Court rejected that the government had improperly vouched for two witnesses by its examination of a detective. The Court found the alleged vouching was a reasonable response to rehabilitate a witness after it was suggested her grand jury testimony was coerced. The Court agreed that the reading of a commemorative poem about the victim, use of an enlarged photo of him made into a puzzle, and references to one of the defendants being in jail was “rife with misconduct, and to a degree that should not be tolerated by a district court.” However, the prejudice was minimal and did not merit reversal where the conduct was a brief part of the seventy five pages of closing argument and thousands of pages of trial testimony and the judge repeatedly instructed the jury not to be swayed by bias or sympathy. Finally, the Court concluded that the objective, specific intent of carjacking was correctly charged when examining the whole instruction even though a juror might have mistaken the challenged part of the charge as relying on the victim’s subjective perception (and thus allowing a conviction based on empty threats or bluffs).

Clear Error Standard of Review Applies to a District Court's Application of U.S.S.G. Section 2C1.2(b)(3)

In, United States v. Richards, No. 10-4767, the Third Circuit affirmed the district court's application of U.S.S.G. Section 2C1.2(b)(3) to the defendant.

Richards, the former Director of Human Resources for the government of Luzerne County, pled guilty to violating 18 U.S.C. § 666(a)(1)(B), for accepting a bribe in excess of $1,000 but less than $5,000 in connection with assistance given a consulting firm interested in contracting with Luzerne County. Richards accepted $1,000 and free New York Mets tickets. In exchange, he helped Continental Consultants to obtain a contract with Luzerne County to provide temporary employment services for individuals hired to perform cleanup work in the aftermath of a 2006 flood. At the sentencing hearing, Richards objected to the court’s application of a four-level enhancement pursuant to § 2C1.2(b)(3), which applies to “an elected public official or any public official in a high-level decision-making or sensitive position.” The commentary defines the term in part, “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.”

Richards argued the enhancement was inapplicable to him because: (1) he had no hiring/firing authority; (2) he could not bind Luzerne County; (3) he could not take official action on Luzerne County’s behalf; (4) his duties were administrative, and not policymaking; (5) he had superiors who reported to the County Commissioners; and (6) his superior did not receive the enhancement when he was sentenced for his role in the bribery scheme. Richards did admit, however, that he was responsible for referring three or four top candidates for jobs to the County Commissioners. He also was responsible for administering the Human Resources Department and made various recommendations to his superiors, the Deputy County Clerk, and the County Commissioners. These facts, along with his job description, would later prove fatal to his argument.

On appeal, Richards argued that application of the enhancement was subject to de novo review, because the issue involves an interpretation of the Guidelines. The Third Circuit disagreed, finding that the deferential clearly erroneous standard applied “when considering a district court's application of the Sentencing Guidelines to a specific set of facts, that is, where the district court determined whether the facts ‘fit’ within what the Guidelines prescribe.” The Court also noted that its “review of these decisions will be of little help in future cases because the next government official inevitably will be in a different position and have different job responsibilities than the defendant does here,” further supporting application of the clearly erroneous standard of review. Finally, the Court reasoned that many other enhancements that require the district court to make similar factual determinations are also reviewed for clear error.

The Court then held that the district court’s application of the enhancement was not clear error, citing Richards’ responsibilities as director including referring top candidates to the County Commissioners for their ultimate hiring; designing, implementing and maintaining a centralized Human Resource Department; and writing, maintaining and applying county policies and guidelines. Finally, the Court rejected Richards’ argument that the enhancement should not be applied to him because it was not applied to his superior. The Court reasoned that “[w]ithout showing that [his superior’s] ‘circumstances exactly paralleled’ Richards’s, a ‘court should not consider sentences imposed on defendants in other cases in the absence of such a showing’ by Richards.” See United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008); United States v. Robinson, 603 F.3d 230, 234-35 (3d Cir. 2010).

Supervised Release Statute Specifies No Aggregate Limit on Post-Revocation Imprisonment

Joining two other circuits, the Third Circuit rules in United States v. Williams, No. 11-2267 (Apr. 3, 2012), that the principal federal supervised release statute does not specify any aggregate limit on the length of imprisonment that may be imposed for successive violations. Instead, the Court holds, the maximum sentences specified in the statute may be freshly imposed upon each and every revocation.

Under 18 U.S.C. § 3583(e)(3), a defendant whose supervised release is revoked may be required "to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release." The "term of supervised release authorized by statute" depends on the classification of the underlying offense. For a Class A felony, for example, the maximum is ordinarily five years; for a Class C felony, it is three years. See 18 U.S.C. § 3583(b).

Ms. Williams argued that these limits apply in the aggregate to all post-revocation sentences. Thus, if a defendant convicted of a Class C felony violates and is sentenced to 18 months’ imprisonment to be followed by another 18 months’ supervised release, any further violation occurring during the renewed period of supervised release subjects the defendant to no more than an additional 18 months’ imprisonment, i.e., no more than three years’ imprisonment in total.

Separately, however, § 3583(e)(3) provides that a defendant convicted of a Class C felony whose supervised release is revoked may be sentenced to up to two years’ imprisonment "on any such revocation." Relying on "the ‘legislative history and the atmosphere in which the statute was enacted,’" the Court holds that district courts may impose up to two years’ imprisonment upon each successive revocation, regardless of whether the aggregate length of all post-revocation imprisonment exceeds the initially authorized supervised release term of three years. The Court rejects Ms. Williams’s argument that this construction offends the rule that courts "should attempt to reconcile two seemingly conflicting statutory provisions whenever possible, instead of allowing one provision effectively to nullify the other provision." It also reads subsection (e)(3) as "unambiguous" and thus holds the rule of lenity inapplicable.

Defendant Not Eligible for Sentence Reduction under 18 U.S.C. § 3582(c)(2) When Sentenced Under Career Offender Guidelines

In United States v. Barney, No. 11-2488, (3d Cir., Mar. 6, 2012), the Third Circuit addressed the issue it previously had left open in United States v. Flemming, 617 F.3d 252 (3d Cir. 2010).

In both Barney and Flemming, the defendants had been convicted of possession with intent to distribute crack cocaine. Both defendants had been sentenced as career offenders, but both of them had received downward departures pursuant to U.S.S.G. § 4A1.3 (overstatement of criminal history). The § 4A1.3 departures reduced the defendants' sentences to the ranges which had been calculated before the career offender enhancements had been applied. Both defendants sought further sentence reductions under 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the guidelines would have reduced their base offense levels.

However, in Flemming, the defendant had been sentenced under the 2001 version of the guidelines. The Flemming court determined that, prior to a 2003 amendment, the guidelines addressing the defendant's eligibility for an additional sentence reduction under 18 U.S.C. § 3582(c)(2) were ambiguous. Specifically, the Court concluded that the 2001 version of the guidelines failed to adequately define the term "applicable guideline range" as used in 18 U.S.C.
§ 3582(c)(2). The Court noted that the 2003 amendment clarified the definition of "departure" in the commentary to U.S.S.G. § 1B1.1 to indicate that a departure under § 4A1.3 was a departure from the applicable guideline range, not a departure to that range. However, this amendment was enacted after the defendant already had been sentenced. Therefore, the Court in Flemming specifically declined to address the issue of whether the defendant's "applicable guideline range" under 18 U.S.C. § 3582(c)(2) was calculated under the career offender guidelines or guidelines for crack cocaine. Nonetheless, the Court relied upon the rule of lenity to grant the defendant's request for the additional reduction.

In Barney, the Third Circuit took the opportunity to address this outstanding issue. Citing the 2003 amendment, the Court concluded that the previous ambiguity regarding the definition of "departure" had been resolved. Consequently, the § 4A1.3 departure was a departure from the applicable guideline range, not to the applicable guideline range. Therefore, as the "applicable guideline range" was based upon the career offender guidelines and not the crack cocaine guidelines, Amendment 706 did not apply to provide a further reduction under 18 U.S.C. § 3582(c)(2).

Note that, although the Court has not directly addressed application of 18 U.S.C. § 3582(c)(2) to career offenders under the recent amendment to § 1B1.10 (Amendment 759, effective November 1, 2011), it suggested in a footnote that its conclusion is consistent with the new language in this amendment.

"TRAC" Analysis of Variations in Sentencing Significantly Flawed

A recent post brought your attention to a newly released study from the Transactional Records Access Clearinghouse of Syracuse University ("TRAC Study") which has garnered much attention in its efforts to compare sentencing disparities between Federal District Courts and Judges.

A review of the TRAC study, however, raises serious questions about its validity. A fact sheet (available here on Berman's Blog) prepared by Michael Nachmanoff of the Eastern District of Virginia, identifies some very substantial problems with TRAC's methodology. Here is one: "The only similarity among the cases sentenced in each district is that prosecutors categorized them as 'drug,' 'white collar,' etc. All other case differences are ignored. Heroin or marijuana cases, involving 1 gram or 1 ton, are all called 'similar' drug cases. First-time offenders are lumped with lifetime criminals. Academic researchers studying disparity use data from the U. S. Sentencing Commission to categorize cases along dozens of different variables, but this data was not used in TRAC’s analysis."

Given these issues, counsel will want to be alert and wary of any efforts to use or take consideration of the TRAC study at sentencings.

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Court Rejects Claims on Bill of Particulars / Duplicity / Sufficiency

In United States v. Moyer, 2012 WL 639277 (Feb. 29, 2012), Police Officer defendants were charged with covering up a racially-motivated and fatal assault committed by local teenagers. The charges included conspiring to falsify documents with intent to obstruct investigation of a matter within the jurisdiction of an agency of the United States, (18 U.S.C. § 371), and falsifying documents (18 U.S.C. § 1519). Defendant Moyer was also charged with two counts of obstruction of justice (18 U.S.C. § 1512) and one count of making false statements (18 U.S.C. § 1001).

Defendant Nestor (the Chief of Police), moved to dismiss the conspiracy and falsifying document counts and also moved for a bill of particulars seeking (1) the agency and matter within the federal government's jurisdiction and (2) the reports alleged to be false. The District Court denied the motion to dismiss and granted the bill of particulars with respect to the “federal investigation or matter under the jurisdiction” of the United States. The court denied the request with respect to the specific statements or reports being charged, concluding that the indictment was sufficiently specific. The government responded by informing Nestor that the matter within the FBI's jurisdiction was the racially motivated killing. Following a jury trial, defendant Nester was found guilty of the single count of falsifying documents and defendant Moyer of a single count of false statements.

On appeal, Nestor asserted that the district court erred in denying (in part) the bill of particulars with respect to the falsifying documents count, failing to dismiss the count as duplicitous, and failing to enforce the bill of particulars it did order. The Circuit disagreed, first concluding that the indictment was sufficiently detailed such that the bill of particulars was unnecessary. In addition to setting forth the elements of the statute, the indictment, explained that the falsified documents were “official police reports” created between July 12, 2008, and March 30, 2009, and incorporated further specific details outlined in the conspiracy count. The indictment thus met the standard of being concise and containing “essential facts,” even if it did not identify every alleged false fact or omission. The Court also rejected Nestor’s claim that the district court failed to properly enforce the portion of the bill of particulars it did order, regarding the agency and the matter within federal jurisdiction. The government’s response – that “the matter within the jurisdiction of the [FBI was] the racially motivated killing of” the victim, Ramirez – was not inadequate and failure to cite the specific statute was of “no consequence.”

The Court next held that the count was not duplicitous (joining of multiple offenses in a single count). It held that the allowable unit of prosecution under § 1519, which charges in part: “Whoever knowingly alters, . . . falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct . . .” is controlled by the use of the terms “any”and “record,” which can fairly signify multiple statements or reports. The Court also rejected Nestor’s claim that the juror’s may have relied on different acts, as the count read to charge a single scheme.

The Court next rejected Nestor’s sufficiency and vagueness claims, declining to read a knowledge element into the matter being within the jurisdiction of the FBI, or any requirement of “contemplation of” or a nexus to a specific investigation.

Finally, the Court rejected defendant Moyer’s sufficiency challenge to his material false statement conviction, which was based on statements to the FBI falsely indicating he had been told by a witness of another person with a gun (not the teens invovled) alleged to be present at the incident and that the same witness had not identified anyone involved in the assault.

Misstatement in Plea Colloquy Narrowed Waiver; Ex Post Facto Applies to Advisory Guidelines, Overrides One-Book Rule

In United States v. Saferstein, 2012 WL 234408 (Jan. 26, 2012) (published Feb. 24, 2012), the Circuit held that (1) a District court's misstatement during the plea colloquy describing an appellate waiver more narrowly than provided by the plea agreement, had effect of narrowing the waiver; (2) retrospective application of a new guideline provision violates the Ex Post Facto Clause notwithstanding Guidelines' advisory character; and (3) “one-book rule” did not apply when doing so violated the Ex Post Fact Clause.

Saferstein pled guilty to one count of mail fraud, one count of wire fraud, and two counts of submitting false tax returns, based on his fraudulent operation of a telemarketing company over a period of seven years.

The plea agreement contained language that Saferstein “voluntarily and expressly waived all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.” At the plea colloquy, the district court misstated the provision concerning constitutional claims, stating that the waiver “of course, is not intended to bar you from raising constitutional claims, and only the Court can decide whether they are constitutional claims or some other kind of claim.”

The Third Circuit held that the court’s statement during the colloquy created ambiguity which did not exist in the plain text of the plea agreement. Given that ambiguity and that plea agreements must be construed to protect the defendant as the weaker bargaining party, the Court found that the waiver must be construed narrowly, permitting Saferstein to raise constitutional claims on appeal.

The constitutional issue Saferstein raised was an ex post facto claim. Saferstein claimed that his sentencing, which was based on the 2009 Guidelines Manual, violated the ex post facto clause because the mail and wire fraud counts occurred in December 2002 and June 2003, and the base offense level for fraud under the Guidelines was increased on November 1, 2003. Both counts for submitting false tax returns occurred after that date.

According to the one-book rule, when a “defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” § 1B1.11(b)(3). However, in United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir.1994), the Court previously held that the ex post facto clause requires that a sentencing court apply the Guidelines Manual in effect at the time the offense was committed if retroactive application of the later Manual would result in harsher penalties, even if the counts are grouped (but noting “ex post facto concerns are assuaged when counts are properly grouped under § 3D1.2(d) as ‘continuing, related conduct’”).

In this case, the sentencing court applied the Guidelines in effect when the false tax returns were submitted to the IRS, even though those counts were not grouped with the mail and wire fraud counts. As a result, application of the later edition of the Guidelines violated the ex post facto clause.

Post-Hoc Testimony Re Tint Not Basis for Reasonable Suspicion; Tip About Firearms in Car Not Sufficient

In United States v. Lewis, 2012 WL 556065 (Feb. 22, 2012), a reasonable suspicion / traffic stop case, the Circuit held: (1) that testimony regarding the illegal tint on the windows of defendant's vehicle did not provide non-testifying police officer reasonable suspicion to justify a traffic stop, as there was no evidence that the officer observed a traffic violation arising from tint prior to initiating stop; and (2) a tip from a known source that there were firearms in a white vehicle with the numbers 181 in the license plate did not provide the police officer reasonable suspicion of criminal activity necessary to justify an automobile stop. The tip did not include any information as to whether possession of firearms was illegal or whether they were being used in a criminal manner. (Note: Virgin Islands case, not unlawful to possess firearm).

New study lists sentencing disparities between Federal District Courts and Federal District Court Judges/ Eastern District of Pennsylvania among those with highest disparities in drug sentencing

Editors Note: See update post of 3/13/2012 on TRAC report.

TheTransactional Records Access Clearinghouse of Syracuse University has released a study thatamong other things compares sentencing disparities between Federal DistrictCourts and Judges. Partsof the report made public note that the Eastern District of Pennsylvania is oneof the districts with the ten highest disparities in drug sentencing. (Fourdistricts shared the Eastern District’s ranking.) Studies of individual judges’sentencing patterns are available on a subscriptionbasis. The parts of the study that areavailable to the general public are short and best read in full, but today’s NewYork Times has a good story about it. The public site about the study andthe Times’ story (both of which are not too long) require careful reading, asthe study has its limitations, but they make interesting reading nonetheless.

Image from Constructonomics.

Delay in delivering court order caused by prison authorities excluded from time to file motion for reconsideration

In Long v. Atlantic City Police Department, et al.,  No. 06-4732 (11/9/2011), Mr. Long sought to extend the time for filing an appeal from a Fed.R.Civ.Pro. 59(e) ruling under Fed.R.App.Pro. 4(a)(4)(A) due to prison authorities’ obstruction of the delivery of the Fed.R.Civ.Pro. 59(e) dismissal.  Long had sued the Atlantic City Police Department , the New Jersey State Police, and some police officers and forensic chemists alleging some sort of conspiracy which prevented him from proving his innocence.  Screening the compliant resulted in the district court’s dismissing the complaint sua sponte before the defendants had been served.  The order and memorandum opinion were docketed on August 21, 2006, giving Long until September 4, 2006 to file a motion under Rule 59(e). However, on September 25, 2006, after the expiration of the appeal period, he filed a motion for reconsideration pursuant to Rule 59(e), along with a letter explaining that he had not received the district court’s filings until September 22, 2006. His transfer to another prison facility caused a delay due to the prison forwarding the filings form his old to his new prison. He claimed he told the district court of the move. The district court treated the motion as timely due to the delay, and rejected his motion on the merits.  On appeal, the Court had to consider both the motion for reconsideration was timely and if so, whether it was properly dismissed on the merits.

The Court first noted that it had held in United States v. Grana, 864 F.2d 312 (3d Cir. 1989), abrogated on other grounds by Virgin Islands v. Martinez, 620 F.3d 321 (3d Cir. 2010) the delay caused by prison authorities in delivering an adverse order could be excluded from the time to file a criminal appeal. The Court later applied that rule in a §2255 case to appeals under Fed.R.App.Pro. 4(a)(4)(A). This reasoning led the Court to conclude that the rule excluding delays in delivering an order due to prion delay could also apply to reconsiderations orders under Fed.R.Civ.Pro.59(e) when delivery of district court orders are delayed by prison authorities’ actions. The Court accepted Long’s certification, that stated that false statements would subject him to punishment that the documents were incorrectly mailed to the wrong prison and that his new prison opened legal mail before delivering it to prisoners.

Prisoner who through no fault of his own did not receive notice of district court order dismissing his civil action not entitled to file a late appeal to the court of appeals

The lesson of Baker v. United States Government Officials, Nos. 08-2288 and 08-2365 (February 13, 2012)— which applies to appeals of civil orders (including those under §§2244 and 2255)— is that no news for five months means check the district court dockets.  Baker filed a tort claim in the U.S. District Court for the Western District of Pennsylvania alleging he was harmed by second hand smoke in his prison.  While the case was pending in 2005, Baker was transferred from FCI Lisbon (the opinion notes that there is no FCI Lisbon but rather an FCI Elkton in Lisbon, Ohio, but in order to avoid confusion, the opinion adopted the prison name used in the docket entries) to FCI Lewisburg.  On July 11, 2006, the district court granted the government’s Fed.R.Civ.Pro 12(b)(6) motion, but sent the dismissal order to FCI Lisbon, [and] as a result, the order was returned to the district court.  No one in the clerk’s office made any attempt to locate Baker.  Seven months later, on February 9, 2007, the docket notes that Baker sent a letter to the clerk in December, 2005 notifying the clerk’s office of his new residence in Lewisburg. A second February 9, 2007 entry notes that Baker wrote to the clerk explaining that he had received word of the dismissal when he received a docket sheet and as a result filed neither an appeal or motion for reconsideration. He asked for a copy of the dismissal order and was sent one — on January 7, 2008!

            Before receiving the dismissal motion, Baker, on May 31, 2007, filed several motions, among them: a post-judgment motion under Fed.R.Civ.Pro. 60(b); a motion to file a notice of appeal under Fed.R.Civ.Pro. 4(a)(1); a motion to toll the time to take an appeal under Fed.R.Civ.Pro. 4(a)(4); and a motion to reopen the time to take an appeal under Fed.R.Civ.Pro. 4(a)(6). On January 16, 2008, Baker supplemented his May 31, 2007 motion, filing a motion to alter or amend the judgment under Fed.R.Civ.Pro. 59(e). In all of these motions Baker blamed the prison for his not receiving the dismissal order, preventing him from filing timely motions.  On January 31, 2008, the District Court denied all of the motions.  Baker filed another motion to reconsider under Fed.R.Civ.Pro. 59(c). This was denied on April 10, 2008, and Baker filed a timely appeal from that order.

Baker sought rulings that his appeal of the July 11, 2006 dismissal was timely pursuant to Fed.R.App.Pro 4(a)(4) and (6). Fed.R.App.Pro 4(a)(4) allows a district court to reopen the appeal period for fourteen days after the date to reopen is entered if it finds that the moving party did not receive notice of the order under Fed.R.Civ.Pro. 77(d) within 21 days of its entry, the motion is filed 180 days after judgment is entered or 14 days after Fed.R.Civ.Pro. 77(d) notice of entry of the judgment is received (whichever is earlier), and the district court finds no party would be prejudiced.  Fed.R.App.Pro 4(a)(6) allows the time to appeal to run from the date of a ruling on a timey filed Fed.R.Civ.Pro. 59 motion.

The Court first dealt with the Fed.R.App.Pro 4(a)(6). Baker asserted that the time to file his Fed.R.Civ.Pro. 59 motion ran from February, 2007, when he learned of the July 11, 2006 order.  Relying on Bowles v. Russell, 551 U.S. 205 (1977), the Court ruled that Rule 4’s time limits cannot be equitably tolled, as the time limit to appeal is derived from a statute, it is jurisdictional, and courts are without power to expand them. The delay caused by the prison sending the notice back to the district court, rather than forwarding it to Baker, could not be subtracted from the time between the issuance of the order and the time the appeal was due.  The mailbox rule for determining when a prisoner files a document does not stretch so far to allow the entry of an order to be the date a prisoner receives it.

The Court then dealt with whether under Fed.R.App.Pro 4(a)(4) his Fed.R.Civ.Pro. 59 motion could be deemed timely, allowing his appeal to proceed.  The Court ruled, on the same day it ruled on Baker’s case, in Long v. Atlantic City Police Department, No. 06-4732 (February 13, 2011), that a Fed.R.Civ.Pro 59(e) motion can be deemed timely when a prisoner alleges and proves that prison official delayed or interfered with the delivery of a final order of the district court.  Baker’s problem was not the prison though.  Rather, the error was the district clerk’s sending the notice of the dismissal to the wrong prison. Charitably, the Court noted, “We recognize that this conclusion works an unfortunate result for Baker.  The result is distressing, given that the clerk’s office seriously erred in failing to update Baker’s address of record until more than a year had passed from when he notified the District Court of his move.”  (Perhaps this soothes Baker’s inner Mr. Bumble.)  As a result the only order the Court could review was the district court’s ruling that the Fed.R.Civ.Pro. 59(e) was not timely filed, and that, the Court of Appeals ruled, was correct.

Defendants in Multi-National, Internet-Based, Controlled-Substance-Distribution Case Seek Relief on Multiple Grounds Without Success

In United States v. Bansal, Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526, 07-4618, 09-1827 (3d. Cir. December 14, 2011), the Third Circuit discussed and then denied 13 of the 75 issues presented in this case involving a multi-national, internet-based, controlled-substance-distribution scheme. In the interest of brevity, the issues addressed in this 69-page opinion are as follows:

(1) Whether the money laundering convictions impermissibly merge with the underlying predicate felonies under United States v. Santos, 553 U.S. 507 (2008)?

(2) Whether the indictment insufficiently stated the elements of a CCE offense, and whether the conviction was flawed due to improper jury instructions and insufficiency of the evidence?

(3) Whether various emails intercepted pursuant to two warrant-authorized wiretaps should have been suppressed because they were not immediately sealed upon the warrant’s expiration pursuant to 18 U.S.C. § 2518(8)(a), which requires that the recordings of the contents of any wire, oral or electronic communication obtained pursuant to a search warrant be sealed immediately upon the expiration of the period fo the order?

(4) Whether the District Court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), during sentencing because the jury made no finding of fact as to whether the substances involved in the case were Schedule II, III or IV substances?

(5) Whether the conspiracy convictions are invalid on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time of the indictment?

(6) Whether the money laundering convictions are invalid because the money was laundered from lawful sources, i.e. because it was legal at the time to sell controlled substances over the internet without prescriptions?

(7) Whether the conspiracy conviction was a misdemeanor rather than a felony - - a conclusion that if correct, might undermine the money laundering conviction which requires proceeds to be from specified felonies, alter the Sentencing Guidelines calculations or bear upon the mutual understanding of the forfeiture agreement?

(8) Whether the grand jury proceedings were tainted by the presence of an allegedly improperly appointed Special AUSA; whether prosecutors made material misstatements and elicited false testimony during the grand jury proceedings; whether the indictment insufficiently stated the elements of the CCE charge because it did not allege with particularity three predicate felonies upon which a valid CCE charge must rely; and whether the District Court improperly limited public and press access to the pretrial jury selection procedures when it conducted a portion of the voir dire (individual voir dire) about sensitive subject in the presence of the parties in a closed jury room adjacent to the courtroom?

(9) Whether the District Court erred when it failed to suppress evidence obtained from the internet service providers that managed his email accounts because the five magistrate judges who issued the warrants lacked jurisdiction to do so because the warrants were ultimately executed on internet service providers in California, the warrants were unconstitutional general warrants, the warrants were invalid because they lacked probable cause, and the agents executing the warrants failed to adhere to the notice requirements of Rule 41 when they did not provide the defendant with a copy of the warrants; whether the District Court erred when it failed to suppress evidence obtained during the search of a garage because the garage was beyond the curtilage; whether the District Court erred when it failed to suppress evidence obtained from the defendant’s vehicle after his arrest?

(10) Whether the government presented sufficient evidence at trial to support the jury’s verdict of guilty with respect to the controlled substance distribution and importation charges?

(11) Whether various items of evidence (domestic and foreign business records, Excel spread sheets, bank check and wire-transfer exhibits, testimony of IRS Agent re domestic and international wire transfers, website screenshots, and summary exhibits) were admitted at trial in violation of the 6th Amendment’s Confrontation Clause and the Federal Rules of Evidence?

(12) Whether the District Court erred when it instructed the jury on certain matters including, advising them as a matter of law that each of the drugs listed in the indictment were controlled substances, the definition of "business enterprises involving narcotics", a cautionary instruction re cooperating witnesses and its instruction to consider whether witnesses who have pleaded guilty have an incentive to lie, instructing the jurors to "seek the truth", a "willful blindness" instruction re deliberate indifference, and an instruction on the elements of conspiracy and on the intent element of felony misbranding?

(13) Whether the government withheld exculpatory evidence (certain intercepted phone calls, emails, an indictment filed against coconspirators in New York, proffer statements from one of coconspirators and impeachment evidence against a coconspirator) in violation of Brady v. Maryland, 373 U.S. 83 (1963), and whether the government intruded into the defense camp by intercepting telephone calls he made while incarcerated in a federal detention center?

AMD 691 Vitiates Precedent that USSG §2K2.1(b)(6) Does Not Apply When the Predicate is Burglary of the Firearms that are the Subject of the Conviction

In United States v. Keller, Nos. 11-1172-1173 (3d. Cir. December 14, 2011), the Third Circuit vacated the sentence in this burglary of a gun shop case and remanded to the District Court to recalculate the guidelines range by applying the four-level enhancement in USSG §2K2.1(b)(6) for use or possession of any firearm or ammunition in connection with "another felony offense".

Keller pled guilty to conspiracy against the United States, stealing firearms from a federally licensed firearms dealer and possession of unregistered firearms, in violation of 18 U.S.C. §§ 371, 922(u), and 26 U.S.C. § 5861(d). Although the Probation Office included the four-level enhancement in Keller’s guidelines calculations, the District Court found that the enhancement did not apply. The Government then appealed.

In ruling in favor of Keller, the District Court followed existing Third Circuit precedent in United States v. Fenton, 309 F.3d 825 (3d Cir. 2002), United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004) and United States v. Navarro, 476 F.3d 188 (3d Cir. 2007).

However, in 2006, the Sentencing Commission proposed an amendment to USSG §2K2.1 in order to resolve a Circuit conflict (Amendment 691). This amendment removed Application Note 15, which said that "another felony offense" refers to offenses other than explosives or firearms possession or trafficking offense, and inserted a new Application Note 14 which said that the enhancement applies if the firearm or ammunition facilitated or had the potential of facilitating "another felony offense" or another offense. It also indicated that the enhancement applies in a case in which a defendant who during the course of a burglary finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm, during the course of the burglary, and in the case of a drug trafficking offense, in which a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia. Amendment 691 noted that the enhancement is warranted because the presence of the firearm has the potential of facilitating "another felony offense" or another offense. The Third Circuit held that it was bound by this commentary, as provided in United States v. Stinson, 508 U.S. 36 (1993).

Despite that fact that the Circuit held in Fenton that the offense of burglary to steal firearms could not serve as the predicate for a USSG §2K2.1(b)(6) enhancement, the Commission sided with those courts of appeal that had held to the contrary. Therefore, the rule stated in Fenton and reaffirmed in Lloyd and Navarro is no longer valid to the extent it was applied to the burglary and drug trafficking offenses referenced in Application Note 14.

Finally, the Court determined that Amendment 691 is not plainly erroneous or inconsistent with USSG §2K2.1(b)(6), as provided in Stinson, 508 U.S. at 47.

The Second Amendment does not protect a person legally entitled to possess a firearm who lives with a felon from being charged with aiding and abetting under 922(g). And in determining the sufficiency of the charge in defendant’s Rule 12(b)(3)(b) motion to dismiss, the District Court should not ordinarily stray outside the four corners of the Indictment.

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happens to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

In determining the sufficiency of the charge, the District Court took into consideration discovery, the affidavits of probable cause supporting the search warrant, and the prosecutor’s remarks made during Hall’s guilty plea hearing. The District Court concluded that this evidence failed to establish a connection between Huet and Hall’s possession.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession. The Court characterized the District Court’s review of facts outside the four corners of the Indictment as a “novel procedure” that “impermissibly expanded the scope of its review at the Rule 12 stage” since in reviewing a Rule 12 motion, the court must accept as true all facts alleged. The Court noted, without deciding, that if there were a stipulated record or if immunity issues were implicated, a Rule 12 dismissal might be justified on sufficiency of evidence grounds — but that’s not this case. Finally, the Court ruled that the District Court erred in faulting the Government for not including in the Indictment specific facts on how Huet aided and abetted. The Court said that the Indictment satisfied Rule 7(c)(1)’s requirement of a “plain, concise, and definite written statement.”

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment does not shield Huet from being charged with aiding and abetting a felon to possess a firearm, reasoning that Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon: the Second Amendment does not permit Huet to facilitate Hall’s illegal possession.