Supreme Court grants certiorari to resolve intent question in threat cases under 18 U.S.C. § 875(c)

On June 16, 2014, the United States Supreme Court granted certiorari in Elonis v. United States, No. 13-983 (Third Circuit opinion here). Anthony Elonis was convicted after trial of posting threatening communications on Facebook, in violation of 18 U.S.C. § 875(c). Applying an objective intent standard, the Third Circuit upheld Elonis's conviction, finding the evidence sufficient to support the jury's conclusion that the Facebook statements constituted true threats.

The Supreme Court granted certiorari to resolve a circuit split on the intent issue. The question presented by Elonis's cert petition is:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Court ordered the parties to also address the following question:  Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant's subjective intent to threaten.

Alleyne v. United States Not Retroactive to Cases on Collateral Review

In United States v. Reyes, No. 13-3537, 2014 WL 2747216 (3d Cir., June 18, 2014), Defendant was convicted of armed Hobbs Act robbery and sentenced to 180 months in prison. His conviction and sentence were upheld on appeal. Defendant subsequently filed a habeas petition under 28 U.S.C. § 2255. Prior to the court’s ruling on the habeas petition, Defendant requested permission to amend it in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), in which the Supreme Court ruled that any facts that raise the range of penalties to which a defendant is exposed are elements of the offense and must be found beyond reasonable doubt. The court denied Defendant’s request, ruling that Alleyne did not apply retroactively to cases that were on collateral review. Nonetheless, the court issued Defendant a certificate of appealability on that issue. During the briefing on Defendant’s appeal, the Third Circuit issued an opinion in United States v. Winkleman, et al., 746 F.3d 134 (3d Cir. 2014), ruling that Alleyne does not apply retroactively to cases on collateral review. The Third Circuit answered a question left unanswered in Winkleman, namely that Alleyne announced a new rule of criminal procedure. However, citing Schriro v. Summerlin, 542 U.S. 348 (2004), and Teague v. Lane, 489 U.S. 288 (1989), the Third Circuit concluded that Alleyne was not retroactive to cases on collateral review because the new rule did not place the conduct or individuals covered by the statute beyond the government’s power to punish, nor was it a watershed rule that implicated the "fundamental fairness and accuracy of the criminal proceeding." To the contrary, the Third Circuit recognized that Alleyne announced a procedural, not a substantive rule. Further, the Third Circuit determined that Alleyne was not a watershed rule because it provided "only a limited modification to the Sixth Amendment rule announced in Apprendhi v. New Jersey, 530 U.S. 466 (2000)." The court noted that, as the Supreme Court has not decided to make Apprendhi retroactive, Alleyne should not be deemed retroactive.

Enhancement under U.S.S.G. § 2J1.2(b)(2) for Substantial Interference with Administration of Justice Applies for Destruction of Hard Drive during Child Porn Investigation

In United States v. Waterman, No. 13-3825, 2014 WL 2724131 (3d Cir., June 17, 2014), Defendant challenged the sentence imposed for his conviction for destruction of records, in violation of 18 U.S.C. § 1519. Defendant, a police officer, destroyed a computer hard drive during a FBI investigation into his alleged possession of child pornography. Defendant initiated the investigation by informing his supervisor that he had in fact viewed child pornography on his personal home computer. Nonetheless, two years after his disclosure, Defendant attempted to destroy one of his personal computers. The court noted that Defendant actually destroyed the circuit board of the computer, but not the data platters which contained the data on the hard drive. Experts testified that the damage to the circuit board was extensive, and consequently, the data was irretrievable. During sentencing, the court adopted the probation office’s recommendation to apply the three-level enhancement under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the administration of justice. The court concluded that Defendant’s actions resulted in the early termination of the FBI’s investigation. The sentencing court reviewed the § 3553(a) factors and ultimately granted Defendant a six-month downward variance. Nonetheless, Defendant appealed the sentence, challenging the application of the enhancement under § 2J1.2(b)(2). Defendant claimed that the evidence presented was insufficient to prove that he had destroyed the hard drive as charged because no one witnessed him committing the act. The Third Circuit rejected Defendant’s argument, ruling that the circumstantial evidence was sufficient to support the lower court’s determination, based upon a preponderance of the evidence, that Defendant had in fact destroyed the hard drive. Note that the Third Circuit interpreted the enhancement, which mandates that the "offense resulted in substantial interference with the administration of justice," to impose a causation requirement. The timing of the offense in relation to the events which give rise to an assertion of substantial interference is a relevant factor for the sentencing court to consider when determining whether the offense caused substantial interference.

Use of a "Moocher Hunter" to Determine a Computer's Whereabouts is not a Search Under the Fourth Amendment

In United States v. Stanley, No. 13-1910, the defendant was "mooching" off a neighbor's wireless internet router, which was not password-protected.  The officer realized this when he traced the IP address and obtained the subscriber information from Comcast, executed a search warrant at the neighbor's home, and did not find the child pornography he suspected had been downloaded from a file sharing network.  The officer then used a "moocher hunter," which is a mobile tracking software tool, to determine the whereabouts of the computer that was "mooching" off the neighbor's wireless router.

The Third Circuit held that this was not a search within the meaning of the Fourth Amendment.  The Court distinguished Kyllo v. United States, 537 U.S. 27 (2001) (the thermal imaging case), because in that case, the defendant confined his marijuana growing activities to the home.  Here, the defendant made no effort to confine his activities to his own home.  The Court reasoned that in effect, the defendant reached a "virtual arm" across the street to exploit the neighbor's internet connection.  Thus, any subjective expectation of privacy he may have had is not one society is prepared to recognize as reasonable.  The Court appeared to leave open a distinction between unauthorized wireless connections and authorized ones.

Importantly, the Third Circuit rejected the district court's finding that the defendant had no legitimate expectation of privacy because he voluntarily disclosed his signal to third parties, a rationale the Court feared "might open a veritable Pandora's Box of Internet-related privacy concerns."

 

To qualify for the exception to the warrant requirement, a "knock and talk" encounter must begin at the front door

Responding to a police dispatch, Pennsylvania State Trooper Jeremy Carroll and another trooper proceeded to the home of Andrew and Karen Carman. The troopers were looking for a man who had stolen two loaded handguns and a car with New Jersey plates. They had neither a warrant to search the Carmans' property, nor a warrant to arrest the theft suspect. Upon arriving at the Carman residence, the troopers bypassed the front door of the home and proceeded directly to the back of the house and onto a deck adjoining the kitchen. On the deck, Trooper Carroll and Andrew Carman scuffled. The Carmans' brought unlawful entry and unlawful seizure claims under 42 U.S.C. § 1983. The case proceeded to trial. After opening arguments and at the close of Carroll's testimony, the Carmans moved for a directed verdict based on Florida v. Jardines, 133 S.Ct. 1409 (2013). The District Court denied the motions. Both claims were also rejected by a jury. This appeal followed.

On appeal, the Third Circuit, in Carman v. Carroll, No. 13-2371 (3d Cir. May 15, 2014), reversed the district court's denial of the Carmans' motion for judgment as a matter of law on their unlawful entry claim, but affirmed the jury's verdict on the Carmans' unlawful seizure claim, finding sufficient evidence to support the jury's verdict. The Court began by reiterating the Supreme Court's holding in Jardines, that a warrantless search of a home's curtilage is presumptively unreasonable. It was undisputed that Carroll entered the Carmans' curtilage (backyard) without a warrant, without consent, and without exigent circumstances. Carroll argued that his entry was justified as a "knock and talk" encounter, which was a permitted exception to the warrant requirement.

Under the "knock and talk" exception, a police officer may approach a home and knock, just as any private citizen may do. In order to satisfy the "knock and talk" exception, three requirements must be met. First, a police officer, like any visitor, must knock promptly, wait briefly to be received, and then leave if not expressly invited to stay. Second, the purpose of a "knock and talk" must be to interview the occupants of the home, not to conduct a search. Finally, "a 'knock and talk' encounter must begin at the front door because that is where police officers, like any other visitors, have an implied invitation to go." Here, the Court held that Trooper Carroll could not avail himself of the "knock and talk" exception because he entered the back of the Carmans' property without approaching the front door first. The Court rejected Carroll's explanation that the layout of the Carmans' property (a corner lot with side street parking) made the back door the most expedient and direct access to the house from where the troopers had to park. The Court noted that the Fourth Amendment is not grounded in expediency and the "knock and talk" exception does not give police license to bypass the front door and enter other parts of the curtilage based on expediency concerns. Accordingly, the Court reversed the district court's denial of the Carmans' motion for judgement as a matter of law on the unlawful entry claim.

Five Years of Inaction Leads to Dismissal of Case Due to Violation of Right to Speedy Trial

In United States v.Velazquez, No 12-3992 (3d. Cir. April 14, 2014), the Third Circuit reversed the district court’s decision to deny Velazquez’s motion to dismiss based on a violation of his right to a speedy trial.

 

After investigating Velazquez on narcotics charges, the DEA attempted to find him at the address of one of his associates, but he was not there.  The DEA declared Velazquez a fugitive, leaving his apprehension to the United States Marshalls Service, where Degan was assigned to the case.  In November 2005, Degan transferred.  Between November 2005 and November 2010, authorities only checked NCIC eight times to find out whether any law enforcement agencies encountered Velazquez.  The DEA included him on the “Most Wanted” section of the website for the local DEA office.  The DEA renewed the search for Velazquez in November 2010.  In December 2011, he was arrested on an unrelated narcotics charge and extradited to the Eastern District of Pennsylvania. 

Velazquez filed a motion to dismiss the indictment based on a speedy-trial violation.  The district court denied the motion finding that the government acted reasonably diligent in pursuing him.  Velazquez pleaded guilty conditionally, reserving his right to appeal the speedy trial issue, and was sentenced to 80 months in prison followed by five years of supervised release.

On appeal, the Third Circuit applied the test from Barker v. Wingo, 407 U.S. 514 (1972), using four factors to determine whether there was a violation of Velazquez’s right to a speedy trial:  (1) the length of the delay before the trial, (2) the reason for the delay, including a consideration of whether the government was to blame, (3) the extent to which the defendant asserted his right to a speedy trial and (4) the amount of prejudice suffered by the defendant. 

The Third Circuit found the length of time of the delay, nearly seven years between indictment and trial, was sufficient to trigger an inquiry into the other factors.  Once the existence of a delay was shown, the government had the burden of justifying the delay, which the government in this case failed to do.

The government asserted that Velazquez caused the delay in trial, arguing that his lack of verifiable employment history, his receiving mail at a post office box, and his ability to avoid apprehension until his arrest on unrelated charges indicates his deliberate attempt to conceal his whereabouts.  However, the Third Circuit found that the delay, and particularly the five years of inaction, demonstrates the government’s failure to make a “serious effort” to apprehend Velazquez, thereby causing the delay.

The Third Circuit held that asserting the right to a speedy trial after arrest, when Velazquez discovered the indictment against him, is considered a timely assertion of the right and weighs in favor of Velazquez.

The extraordinary length of delay in this case led to a presumption of general prejudice against the defendant, which the government failed to overcome. 

The Third Circuit found the district court’s determination that the government utilized reasonable diligence to find Velazquez was clearly erroneous.  For this reason, the Third Circuit reversed the district court’s judgment and remanded for the purpose of dismissing the indictment against Velazquez with prejudice. 

Denial of Suppression Motion Reversed Because Search of Home Incident to Arrest Required “Articulable Basis”

In United States v. White, No. 13-2130 (3d. Cir. April 14, 2014), the Third Circuit vacated an order denying a motion to suppress and remanded for further proceedings in order to determine the applicability of alternative exceptions to the warrant requirement that require an “articulable basis”.

White pled guilty to a felon in possession of a weapon charge, expressly reserving his right to appeal the denial of his suppression motion.  White was sentenced to 96 months imprisonment and filed his appeal solely challenging the denial of his suppression motion.
 

In April of 2012, two state police troopers responded to a domestic disturbance at White’s residence.  The troopers ordered White out of his residence, instructed him to lay face down and arrested him approximately 20 feet from his residence.  The residence was searched and two firearms were found and seized.  A search warrant, based in part on the two firearms seized, was executed on the residence weeks later and an additional 91 firearms were seized.  White moved to suppress all 93 firearms and specifically argued that the initial warrantless search of his home was in violation of his Fourth Amendment Rights.

At the evidentiary hearing, the troopers testified that the warrantless search was performed in the interests of safety.  The district court denied the motion to suppress and held that the sweep of the residence that yielded the seizure of two firearms was lawful because reasonable suspicion was not required to perform searches incident to arrest under the first prong of the Supreme Court's decision in Maryland v. Buie, 494 U.S. 325 (1990).

The Third Circuit disagreed and held that the first prong of Buie is only available when the arrest is made in the home.  According to Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997), arrests that occur just outside the home must be analyzed under the second prong of the Buie analysis which requires an “articulable basis” for protective sweeps.

Since White was arrested twenty feet from his residence, the second prong of Buie is appropriate and the district court must consider on remand if there was an “articulable basis” for the protective sweep under the circumstances at that time.

Public Official’s “Influence” over Governmental Decision Sufficient to Establish Hobbs Act Extortion

United States v. Bencivengo, No. 13-1836. Defendant John Bencivengo was the mayor of Hamilton Township, New Jersey, when he hit up his close friend, Marliese Ljuba, for some help with money. In exchange, Bencivengo offered to convince a member of the local school board not to put up for bid Ljuba’s highly lucrative commissions as the school board’s insurance broker. In addition, Bencivengo agreed to approve a candidate proposed by Ljuba for a vacant seat on the board. At Bencivengo’s subsequent trial, Ljuba testified she believed Bencivengo could influence the school board member because “the Mayor is the head of the Republican party in Hamilton Township,” and that his endorsement of her proposed candidate was a practical necessity “if you want a position on the school district.” As a formal matter, Mayor Bencivengo had no official authority over actions of the school board, no actual power to replace a board member, and no other means of ensuring that Ljuba retained her brokerage contract.

Held, in prosecution for extortion under color of official right in violation of Hobbs Act, government not required to prove defendant had “effective power” over decision whether to place contract for bid; enough to show that defendant has, and agrees to wield, “influence over a governmental decision,” or that defendant’s official “position could permit such influence,” and victim reasonably believed defendant wields such influence. Conviction affirmed.

Separately, the Court holds that an indictment charging a Travel Act violation in one count and a Hobbs Act violation in another based on the same transaction is not multiplicitious in violation of the Double Jeopardy Clause. The Travel Act requires proof of interstate travel or use of the mails or other interstate facility, whereas the Hobbs Act requires proof of an effect on interstate commerce.

The Court further holds that the district judge’s statements in front of the jury, which “admonished defense counsel on several occasions to clarify questions that perhaps did not need to be clarified, as they were clearly understood, “ did not give rise to reversible error. The jury was twice instructed not to draw any inference from the court’s comments as to whether it held any opinion as to the defendant’s guilt, and evidence of guilt was in any event overwhelming.

Practice Note: Bencivengo suggests that where a challenge to the sufficiency of the evidence is predicated on a disputed construction of the charging statute, preserving the sufficiency claim requires that objection also be raised to any jury instruction embodying the government’s preferred construction. Thus, while instructional error would seem to be distinct from evidentiary insufficiency, special care should now be taken in asserting and preserving this genus of claims. Clearly, this is the best practice in any event, as challenges premised on a construction of the charging statute will ordinarily support both a corresponding instruction and a Rule 29 motion for judgment of acquittal.

Conviction Vacated Because Venue Did Not Lie in New Jersey in Computer Fraud and Abuse Act Prosecution

In United States v. Auernheimer, No. 13-1816, the defendant was accused of hacking into AT&T's system and obtaining the email addresses of 114,000 iPad owners.  Neither he, his co-conspirator, nor the servers he hacked were in New Jersey, but some of the iPad owners lived there, and the government prosecuted him in the District of New Jersey.  The district court denied his request for a jury instruction on venue, reasoning that venue properly lied in New Jersey as a matter of law.

The Third Circuit reversed, noting that proper venue is twice guaranteed to a criminal defendant in the Constitution, at Article III, Section 2, Clause 3 and in the Sixth Amendment.  It is also codified in Federal Rule of Criminal Procedure 18.  The panel reasoned that neither of the "essential conduct elements" of the Computer Fraud and Abuse Act ("CFAA") offense - accessing a computer without authorization, and obtaining information - occurred in New Jersey.  Further, because the government charged Auernheimer with conspiring to violate the CFFA in furtherance of a New Jersey state crime, neither of the conduct elements of that offense (accessing a computer without authorization, and disclosing information) occurred in New Jersey either.  Therefore, venue was not proper on the conspiracy count.

With respect to the identity fraud offense, neither of the essential conduct elements (transfer, possession or use, and doing so in connection with a federal crime or state felony) occurred in New Jersey, so venue was not proper on that charge.

The Court rejected the government's policy arguments for discounting the ordinary "essential conduct elements" test for venue.  It also rejected the government's argument that the venue error was harmless.  The Court indicated that a venue error may be structural and in any case this error was not harmless.  The Court reversed the district court's venue determination and vacated Auernheimer's conviction. 

Special thanks to Claudia Van Wyk for her contributions to this post!

 

 


 

Congress' Delegation of Authority to Determine SORNA's Applicability to Pre-Act Sex Offenders Did Not Violate the Nondelegation Doctrine

In United States v. Cooper, No. 13-2324, the Third Circuit considered whether Congress' decision to delegate authority to determine the applicability of federal registration requirements to sex offenders convicted before the Sex Offender Registration and Notification Act's ("SORNA") enactment was constitutional.  SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update his or her registration. 18 U.S.C. § 2250(a). The statute defines sex offenders to include persons convicted of sex offenses prior to SORNA’s enactment. 42 U.S.C. § 16911(1). However, Congress delegated to the Attorney General the authority to determine whether SORNA’s registration requirements would apply to pre-SORNA sex offenders. The Attorney General has since determined that SORNA’s registration requirements do in fact apply to offenders convicted of sex offenses prior to SORNA’s enactment. 28 C.F.R. § 72.3.

The Court determined that Congress’ delegation of this responsibility to the Attorney General was constitutional under the "nondelegation doctrine," which is rooted in the principle of separation of powers. The Court declined to apply a heightened standard here simply because Congress delegated the authority to create criminal liability. Instead, the Third Circuit analyzed Congress’ delegation of authority under the more common "intelligible principle" test. Under the intelligible principle test, a delegation of authority is constitutional so long as Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." See Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Court ultimately concluded that since Congress laid out the general policy underlying the SORNA, the public agency to apply the policy, and the boundaries of the delegated authority, its delegation to the Attorney General did not violate the nondelegation doctrine.
 

Second or Successive 2255 Petition Not Authorized to Seek Relief Under Alleyne v. United States

Two brothers in United States v. Winkleman, Nos. 03-4500, 03-4753, filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held that "any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury" and proved beyond a reasonable doubt. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255.

A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters "our understanding of the bedrock procedural elements" of the adjudicatory process.

For those proceeding outside the successive petition context, it may be possible to argue that the Court's statement that Alleyne is not a watershed rule is dictum, since it was not necessary to the Court's ruling on retroactivity for successors under Tyler v. Cain, 533 U.S. 656, 668 (2001).

Defendant eligible for sentence reduction when mandatory minimum not applied at original sentencing

In United States v. Ortiz-Vega, 12-1482 (3d Cir. March 12, 2014), the Court found that where a defendant was subject to a mandatory minimum sentence but that minimum was not actually applied, he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on retroactive changes to the guidelines. Ortiz-Vega’s crack cocaine offense called for a guideline range of 97 to 121 months but the count of conviction at that time carried a mandatory minimum 120 months. 21 U.S.C. §841(b)(1)(A)(iii). Nonetheless, the court sentenced Ortiz-Vega to 108 months and the government did not challenge the sentence. When Ortiz-Vega moved for resentencing, arguing that the new range would be 78-97 months, the District Court found a reduction would not be consistent with the Commission’s policy statements (Step Two), relying on United States v. Doe, 564 F.3d 305 (3d Cir. 2009) to treat the mandatory minimum as the “applicable guideline range,” whether or not the mandatory minimum had been applied. However, Doe was superseded by the 2010 amendments to the guidelines and the “applicable guideline range” corresponds to offense level and criminal history category if the mandatory minimum was not applied. See United States v. Savani, 733 F.3d 56 (3d Cir. 2013) (discussing below minimum sentences based on substantial assistance). The Court would not read a limitation into the guideline commentary for substantial assistance, even though it is one of few permissible bases for sentencing below a mandatory minimum. The Court then considered whether Ortiz-Vega was sentenced based on a range that has been subsequently lowered (Step One). The Court found Ortiz-Vega was not “subject to” or subjected to the mandatory minimum sentence and thus his range had been lowered. The Court found it appropriate to perpetuate the sentencing error because prior errors cannot be modified in a 3582 proceeding and this principle should not only be used against defendants. The case was remanded for the District Court to consider a sentence reduction.

Incomplete counterfeit bills count towards face value calculation under U.S.S.G. § 2B5.1(b)(1)

In United States v. Woronwicz, No. 12-4320 (3d Cir. March 12,2012), the Court held that incomplete counterfeit bills should be included in face value calculation under U.S.S.G. § 2B5.1(b)(1). Woronwicz was found with over $207,000 in counterfeit bills: 90% were completed on only one side, and $20,000 were completed on both sides. He pled guilty to counterfeiting in violation of 18 U.S.C. § 474. While Note 3 to § 2B5.1(b) excepts “items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny,” the reach of Note 3 is limited to subsection (b)(2). Incomplete bills, like bills of unpassable quality, all count towards (b)(1). Thus, the 12-level enhancement for counterfeit currency exceeding $200,000 was correctly applied.

In context of Grand Jury investigation, District Court followed and correctly applied proper standard to determine whether and how to conduct in camera examination of grand jury target’s former attorney to consider whether attorney’s testimony before grand jury could be compelled under the crime-fraud exception to attorney-client privilege, and did not abuse its discretion in concluding that there was sufficient evidence for the crime-fraud exception to apply.

In In Re: Grand Jury Subpoena, No. 13-1237 (3d Cir. Feb. 12, 2014), a grand jury, investigating alleged violations of the Foreign Corrupt Practices Act, served a subpoena on the former attorney of a target of the investigation, and the Government moved to enforce the subpoena and compel the attorney’s testimony based on the crime-fraud exception to the attorney-client privilege. The target sought to quash the subpoena by asserting the attorney-client privilege and work-product protection. The District Court, after questioning the attorney in camera, with only the attorney’s counsel present, found a reasonable basis to suspect that the target intended to commit a crime when it consulted the attorney and could have used the information gleaned from the consultation in furtherance of the crime. The court concluded that the crime-fraud exception applied and issued an order compelling the attorney to testify before the grand jury.

The target appealed, challenging the standard that the District Court applied to determine whether to conduct an in camera examination, it’s decision to hold an in camera examination and the procedures that it used in that examination, and whether the crime-fraud exception applied to the target’s communication with their attorney.

The Third Circuit held, first, that the District Court applied the proper standard to determine whether to conduct an in camera examination, based on the Supreme Court’s decision in United States v. Zolin, 491 U.S. 554, 572 (1989): that the District Court find a factual basis adequate to support a good faith belief by a reasonable person that in camera review may reveal evidence to establish the claim that the crime-fraud exception applies, and that such factual basis can include unmemorialized oral communications.

The Court next held that the District Court properly applied the Zolin standard when it relied on the Government’s Ex Parte Affidavit, which provided details of the FBI’s examination sufficient to permit the District Court to conclude that the Zolin standard was met. In addition, the District Court did not abuse its discretion in excluding the target from the in camera interview or in declining to release a transcript or summary of the testimony.

Further, the Court held that the District Court did not abuse its discretion in determining that there was sufficient evidence to conclude that the target was committing or intending to commit a crime or fraud when it consulted the former attorney, and that the target used the attorney’s advice in furtherance of a crime or fraud, and therefore the crime-fraud exception applied.

Finally, the Court held that the former attorney’s testimony was not protected by the work-product doctrine because it does not apply in light of a crime-fraud finding, and because the communications at issue were not made in the course of preparation for possible litigation.

Appellate Waiver applies to appeal of term of imprisonment imposed for supervised release violation to be served consecutively.

In United States v. Banks, No. 13-2094 (3d Cir. Feb. 12, 2014), defendant Banks — while on supervised release for a bank fraud conviction — was charged with and pleaded guilty to conspiracy to commit bank fraud and to violating the conditions of his supervised release, pursuant to a plea agreement that included an appellate waiver. In sentencing, Banks requested a concurrent term of imprisonment for the supervised release violation. The District Court imposed a sentence of 18 months for the bank fraud and 33 months for the supervised release violation, to be served consecutively. On appeal, Banks argued that his consecutive sentence was not encompassed in the appellate waiver.

The Third Circuit, strictly construing the language of the waiver, held that the plea agreement language that waived "any appeal . . . which challenges the sentence imposed" did not suggest an intention to except consecutive sentencing from the waiver.

Anticipatory search warrant issued by Pennsylvania Magisterial District Judge valid despite provisions of Fed. R. Crim. P. 41(b), because search was a state search in nature, and postal inspector’s four-day delay in obtaining search warrant not unreasonable under totality of the circumstances.

In United States v. Golson, No. 13-1416 (3d Cir. Feb. 11, 2014), during the course of a drug trafficking investigation, postal inspectors in Phoenix, Arizona intercepted a parcel with a fictitious return address that was addressed to a residence near Harrisburg, Pa. Postal Inspectors in Harrisburg received the package on a Thursday — that Monday, the Government obtained a search warrant from a federal magistrate judge; when opened, the package contained 20 pounds of marijuana.

The Cumberland County Drug Task Force decided to carry out a controlled delivery to the residence, and obtained an anticipatory search warrant signed by a Pennsylvania Magisterial District Judge. A postal inspector disguised as a carrier delivered the package, which someone in the house accepted and signed for on behalf of defendant (using a fictitious name). When the indicator equipment in the package alerted that it had been opened, law enforcement officers entered the home, took the residents into custody, and searched the house, finding drugs, drug-selling paraphernalia, firearms, and ammunition.

Golson — the intended recipient of the parcel — was charged with drug trafficking and possession of a firearm. He filed a motion to suppress asserting two arguments of interest: 1) the search violated Federal Rule of Criminal Procedure 41(b) — providing warrant issuing authority to a federal judge or a judge of a state court of record — because a Magisterial District Judge is not a judge of a state court of record under Pennsylvania law; and 2) the postal inspectors unreasonably retained possession of the parcel for four days before seeking a warrant to open it.

The District Court denied the suppression motion and Golson entered a conditional guilty plea. On appeal, the Third Circuit affirmed the denial of the suppression motion.

First, the Court held that although a Pennsylvania Magisterial Court Judge is not a judge of a state court of record as Rule 41(b) requires, Rule 41(b) does not apply here because the search was a state search in character: among other things, the search warrant was issued at the request of a state trooper indicating a violation of state law, and federal involvement in the search and seizure was, under the circumstances, relatively minor.

Second, the Court held that the four-day delay in obtaining the search warrant was reasonable under the totality of the circumstances, particularly because of the agent’s one-day scheduled leave and the two-day weekend, with the search warrant issued the next business day.

In 2254 petition, cautionary instruction unrang the bell.

In Glenn v. Wynder, the Court affirmed the district court’s denial of Glenn’s 2254 petition.

First, Glenn claimed that his due process rights were violated when the trial court denied his motion for mistrial after a supposed eyewitness proffered wildly contradictory testimony that was based on hearsay. The eyewitness was drunk and high at the time of the shooting and gave inconsistent testimony as to whether she saw Glenn shoot the decedent or whether she had just heard that Glenn had shot the decedent. She then said she didn’t really see the shooting itself, but she saw Glenn at the scene of the shooting and she was scared for the life of someone who really knew what happened. The trial court struck the testimony and told the jury to disregard it. Glenn argued that the trial court’s cautionary instruction could not cure the taint of the testimony and that a mistrial was the only appropriate remedy.

The Third Circuit found that, because a jury is presumed to follow instructions, the testimony did not render the trial fundamentally unfair and the state court’s denial of Glenn’s due process claim was not an unreasonable application of clearly established federal law. Other cases in which the Third Circuit had found that cautionary instructions were insufficient to cure a taint were distinguishable. Basically, because the trial attorney here did such a good job of cross-examining this witness, it was easy for the jury to follow the trial court’s instruction and disregard this witness’s testimony.

Second, Glenn claimed that trial counsel was ineffective for failing to move to strike five other pieces of evidence in the record that referred to the witness’s identification of Glenn as the shooter. Four of these pieces of evidence consisted of police testimony regarding the witness’s statements during the course of their investigation.  Fifth piece of "evidence" was the prosecutor’s opening statement discussing the witness’s anticipated testimony. Glenn’s claims were procedurally defaulted because he did not present them to the PCRA court. Glenn claimed he had cause for the procedural default under Martinez because PCRA counsel was ineffective in failing to raise them.

However, the Third Circuit found that Martinez did not apply because the underlying claim of IAC of trial counsel was not substantial. The police testimony could have been admissible not for the truth of the matter asserted but to explain the course of their investigation. Therefore, trial counsel was not "objectively unreasonable" for failing to object to that testimony. The prosecutor’s opening statement was not prejudicial because the court repeatedly told the jury that the statements of lawyers were not evidence.

Bottom line, even though the jury heard the foundation-less testimony of an eyewitness who pointed the finger directly at defendant in a murder trial, the defendant’s due process rights were not violated because the trial attorney did a bang-up job of discrediting her, because the trial court struck her testimony, and because the jury could be expected to follow the court’s instruction to ignore everything they heard from her.

In dirty cop case, Circuit continues deferring to jury on conspiracy convictions.

In United States v. John-Baptiste, three Virgin Islands cops were tried for RICO conspiracy and several related counts stemming from acts of extortion, kidnaping, bribes and drug trafficking. Jury convicted. District court denied defendants’ motion for new trial, but granted JOA on some counts. Defendants and government appealed.

Arguably of widest interest is the Circuit’s reversal of the district court’s JOA on two conspiracy counts: conspiracy to commit extortion and conspiracy to traffic drugs. On the conspiracy to commit extortion count, evidence showed that one cop was present but silent and inactive in the cop car while his partner bragged (to an extortion victim) about taking money for 19 years. Defense argued mere presence and the district court agreed noting that there was no evidence of an explicit agreement between the two cops as to this act of extortion. Third Circuit reversed saying, "The jury could certainly assume that if one officer boasts of engaging in such illegal activity for nearly two decades in the presence of another police officer, there must be an agreement and that the agreement arises from a ‘longstanding pattern of activity and mutual trust’ between the two." While the Court noted that its finding was very fact specific, the decision continues in the vein of Caraballo-Rodriguez in showing great deference to jury verdicts on conspiracy counts.

The Court likewise reversed the district court’s JOA on the drug conspiracy count. A govt witness testified that one cop, Edwards, handed him a brown paper bag and said that her partner wanted $3,500 for it. There was no specific evidence that Edwards knew what was inside the bag (crack). Once again following the reasoning of Caraballo-Rodriguez, Third Circuit found that the price of the bag, the light weight of the bag, and the timing of this incident (several years into the partnership between the two officers and a pattern of joint illegal activity) was enough for the jury to infer that Edwards knew that the brown paper bag contained drugs.

Other holdings:

• Indictment was sufficient. Even though it didn’t give the actual names of the victims of each count, it was specific enough in dates and descriptions to allow defendant to invoke double jeopardy against future prosecutions of the same conduct.
• Denial of severance motion was not a violation of due process. Even though one of the defendants was only involved in one incident which was the basis for only 8 out of 54 counts, the evidence could be easily separated and compartmentalized by the jury so there was no prejudice from the joinder.
• Virgin Island laws against kidnaping/false imprisonment without "lawful authority" applied to a cop who arrests someone. Even though cops have the legal power to make arrests, if they are acting outside the bounds of the law (for example, by legally arresting someone, but then keeping her until a ransom payment is made), then they are acting without lawful authority. Statutes were not unconstitutionally vague.
• Evidence sufficient to sustain extortion conviction even through no direct evidence that payment was given to the cop. Money was left in the cop’s car and other circumstances suggest that cop pocketed it.
• No new trial warranted on RICO conviction even through JOA granted on some of the predicate acts and jury may have relied on that acquitted conduct in their deliberations. As long as there is a conviction on two or more predicate acts, the RICO conviction stands even if jury (or judge) acquits on other predicate acts.
• Defense claimed prosecutorial misconduct, but Court found no due process violation because no harm from these incidents (assuming they were improper).
• Court did not abuse discretion by prohibiting defense from cross-examining cooperators on the specific length of the sentence they would otherwise be facing were it not for their cooperation. Confrontation right preserved by defense ability to cross on the cooperation agreements and sentence reductions, generally.
• Remember FRE 613 – witness must be given the opportunity to admit or deny a prior inconsistent statement before extrinsic evidence of that statement may be introduced. Defense attorney properly prohibited from asking one witness about statements another witness made that was inconsistent with that witness’s prior testimony.

Defendant subject to a protection order that barred him from residence lacked standing to challenge search of the residence and his belongings within residence

In United States v. Cortez-Dutrieville, Docket No. 13-2266, the Third Circuit found that a defendant's "wrongful" presence in a residence vitiated any expectation of privacy in the residence and, therefore, defendant lacked standing to pursue a motion to suppress evidence recovered during a search of the residence. 

After a package of heroin was intercepted from the mail by US Customs and Border Protection Officers, law enforcement agents arranged a controlled delivery of the package to the home of Portia Newell. Newell was the mother of defendant Antoine Cortez-Dutrieville's ("Dutrieville") child. The agents also obtained an anticipatory search warrant for the residence. During the search of the home, agents discovered Dutrieville, whom they took into custody, as well as the heroin, digital scales and other drug paraphernalia. At the time of the controlled delivery, Dutrieville was staying in the residence with Newell's consent, but was the subject of a Protection From Abuse Order (the "protection order") which, among other things, "completely evicted and excluded" him from Newell's residence. 

Dutrieville moved to suppress the evidence obtained during the search. The District Court denied the motion, holding that Dutrieville lacked a legitimate expectation of privacy in the residence and his belongings within the residence because he was subject to a protection order that barred him from the home. The Third Circuit affirmed, finding that because Dutrieville's presence in the home was "wrongful," he lacked a legitimate expectation of privacy in the home and anything he brought with him to the home during his unlawful visit, including his overnight bag. For these reasons, the Court held that Dutrieville lacked standing to challenge the search of the home and his overnight bag and affirmed the District Court's order denying the motion to suppress.

Judge’s Skeptical Questioning of a Pro Se Defendant/ Absence of Pro Se Defendant From a Sidebar Conference Outside of the Presence of the Jury

Ronald Ottaviano was indicted in the District of New Jersey for money laundering, tax evasion, wire fraud and conspiracy as a result of acting on his belief that he was not subject to the tax laws of the United States nor the penalties that flow from flouting them. At trial, he represented himself, and as described in United States v. Ottaviano, ___ F.3d. ___, Nos. 11-4553 and 13-1119 (3d Cir., December 24, 2013), initially was able, whilst being tried with four, counseled co-defendants, not to raise the ire of the trial judge. However, once the Government rested, and his defense began, his relations with the trial judge went downhill.

Ottaviano not only did not pay taxes, but operated a company that, for $3,500 (or $5,000 if purchased jointly by two persons), would file documents with federal and state governments that would purportedly turn the purchasing/participating taxpayer into a creditor of the government.  Ottaviano claimed to be a college and law school graduate, a CFP, and certified to represent taxpayers before the IRS, none of which was true. He also told his customers that the documents he filed on their behalf would satisfy all of their outstanding loans. 

Despite warnings that his scheme was illegal, Ottaviano forged ahead. Suspicious employees reported his activities to law enforcement, and the IRS also had its eye on him. It eventually searched his home, mailbox and office, seizing documents and computers.

The Government’s case was pedestrian but overwhelming, with proof of dummy computer servers for show for visitors to his company’s office while real computers conducting the company’s business were hidden away, and recorded phone conversations of Ottaviano’s both before arrest and from jail.

Ottaviano’s troubles at trial, other than the evidence the government presented, began when he tried to present his case.  He called 13 witnesses, but they had trouble showing up at the right day and time. By the fourth week of trial, the trial judge’s patience was wearing thin. His irritation began to show with skeptical questions during direct and cross-examination of Ottaviano’s clients. However, when Ottaviano himself took the stand, the trial judge became more aggressive. As his direct testimony began, while Ottaviano explained his work history, the judge asked, in a leading manner, whether he put on his resumé that he was a college graduate when he was not. At another point, when Ottaviano wanted to admit a letter into evidence that the government had not received, the judge excused the jury, as well as Ottaviano, and had a discussion with all counsel, including Ottaviano’s standby counsel. When the latter pointed out that legal issues were being discussed in Ottaviano’s absence while he was proceeding pro se, the judge said he had a reason for that. When Ottaviano resumed the stand, the judge began to question him skeptically and aggressively about the false education claims, and about Ottaviano’s testimony that he did not file tax returns and did not believe in federal tax liability. The judge asked many other similarly skeptical questions during Ottaviano’s testimony, which took up 140 pages of a 3300 page transcript. Although neither Ottaviano or his standby counsel objected during the questioning, Ottaviano, on the following day before the jury came in, move for a mistrial, complaining— not without reason— that the judge was cross-examining him. The judge, responding to this accusation, said that he did not think he acted inappropriately but in any event if he had not asked the questions, the government would have. Ottaviano was convicted, and appealed.

Otaviano raised four issues on appeal.  The Court first dealt with the judge’s questioning.  It began by noting that F.R.E. 614(c) allows for objections to a court’s calling or questioning a witness either at the time it occurs or the first opportunity when the jury is not present.  Terming it a close call, the Court, considering Ottaviano’s pro se status, combined with the fact that he moved for a mistrial at the start of the next day’s business, found that he properly preserved the issue for appeal, and that the Court did not have to move to a “plain error” analysis.”

F.R.E. 614(b) allows judges to question witnesses and act as more than a moderator, but in doing so, the judge cannot become an advocate.  Even when the evidence gives the court a negative impression of the defendant, the court cannot interject that impression into the trial. In this case, though some of Ottaviano’s testimony was confusing, and his testimony and actions could have infuriated a patient judge, this did not excuse the judge becoming an advocate. Ottaviano’s standby counsel and the government were fully capably of clarifying the points in issue without the judge’s help.

Despite the impropriety of the judge’s questions, as noted above, Ottaviano’s testimony was 140 out of 3300 pages of testimony. The evidence against him was overwhelming, the government had conducted an extensive cross-examination of Ottaviano before the judge’s improper conduct that demonstrated that there was no viable defense offered, and Ottaviano’s uninterrupted description of his activities was confusing. As a result, even though a curative instruction from the court did little to blunt the overall effect of the judge’s conduct, the improper questioning was immaterial to the verdict. On this ground therefore, Ottaviano did not receive a new trial.

Ottaviano’s forced absence from the courtroom while his standby counsel, the prosecutor, and the government discussed the letter he had failed to turn over before trial did not provide ground for a new trial either. The absence did not affect his ability to represent himself, nor the jury’s perception that he was doing so. Absence from a sidebar conference outside of the jury’s presence does not automatically deny the right of a pre se litigant of his right to represent himself— the incident must be viewed in the context of the entire trial. Violations of the right to represent oneself— that right arising from the 5^th, and 6^th Amendments and Fed.R.Crim.Pro. 43— do not result in a new trial if found to be harmless error. The Court so found here.

After summarily dismissing Ottaviano’s remaining claims— that the court’s jury instructions varied from the indictment, and there was no authority for a restitution order—the Court affirmed his conviction.    

Photograph, Beatles Taxman (jukebox release, 1966), from Official Beatles Jukebox 45’s (J. Whelan)