Third Circuit Blog

Third Circuit Blog
SEARCH WARRANT VALID DESPITE FACTUAL INACCURACIES IN CHILD PORNOGRAPHY CASE. In USA v. Shields, 458 F.3d 269 (No.05-3662, Aug.16, 2006), the Third Circuit upheld defendant's conviction for possessing child pornography, finding that the affidavit that formed the basis of a search warrant, when excised of its known false statements, still supported probable cause. Shields' prosecution resulted from an undercover FBI investigation of two alleged child pornography websites. Shields was a member of both e-groups, subscribing with an email address of LittleLolitaLove@aol.com. The FBI created a template for a search warrant affidavit for use by FBI offices nationwide which contained serious factual inaccuracies, including a statement that, just by joining either of the e-groups, all members automatically received emails containing images of child pornography as they were posted on the respective sites. In reality, not all members automatically received all emails, but rather had to sign up for that option.
The search warrant executed against Shields contained these false statements. It also contained statements specific to Shields, verifying that the email address was his, that he was a member of both e-groups, and the dates of his membership. As a result of the search, the FBI seized Shields' computer, containing hundreds of images of child pornography, and binders and notebooks of similar images. Shields waived his Miranda rights and confessed to viewing and possessing child pornography.
Shields sought to suppress the physical and statement evidence for lack of probable cause, because of the false allegations in the affidavit. The Court found that despite the serious and reckless misrepresentations of material fact, the warrant supported probable cause without the tainted statements and was sufficient under the standard set forth in Illinois v. Gates, 462, U.S. 213 (1983).

Third Circuit Blog

Third Circuit Blog
COURT UPHOLDS PROHIBITION ON PROPENSITY EVIDENCE IN REVERSE 404(B) CASES. In USA v. Williams, 458 F.3d 312 (No.05-3772, Aug.18, 2006), the Third Circuit affirmed the district court's exclusion of defense evidence and held that under Fed.R.Evid 404(b), "reverse 404(b)" evidence of other crimes or bad acts cannot be offered by a defendant if its principal reason is to show the propensity of a third party to commit a crime. Defendant was charged with felonious possession of a gun after he was apprehended in a bedroom where the gun was found under a mattress. Two other men were also arrested in the house.
The defense theory was that the gun belonged to one of the co-defendants. It moved to introduce evidence under 404(b) that the co-defendant had a prior conviction for gun possession. It argued that under USA v. Stevens, 935 F.2d 1380 (3d Cir. 1991), defendants offering evidence of a third party's bad acts have a lower threshold than when such evidence is offered against the defendant. That case involved a bank robbery defendant who sought to introduce evidence of another robbery committed in a very similar manner in which he was not a suspect. It was offered to show identity between the two robberies, and the Third Circuit ruled the evidence admissible, finding that when evidence of other crimes of a third party is offered to show identity, a lower standard of similarity between the crimes should govern than when the evidence is offered against the defendant. In such cases of reverse 404(b) evidence, the court should allow it if its probative value is not substantially outweighed by risk of prejudice and other Rule 403 considerations.
Here, the court held that Stevens did not apply because propensity (not identity or other legitimate reason) was the only purpose for which the defense sought to introduce evidence of the co-defendant's prior conviction. The lower burden for reverse 404(b) evidence only applies when it is offered for a purpose other than propensity, and Stevens didn't change that basic mandate. The court also upheld the reasonableness of the sentence, finding that although there was no gun violence in the instant case, the district court did not abuse its discretion by making comments at sentencing about the general seriousness of gun violence and a recent shooting of a Newark police officer.

Third Circuit Blog

Third Circuit Blog

Special Skill Enhancement Reversed. In USA v. De La Cruz, No.05-5554 (Aug.18, 2006), the Circuit reversed a 2-level enhancement for use of a special skill, USSG 3B1.3, where the defendant's "special skill" consisted of operating a 20-ft. power boat on a 50-mile trip from Puerto Rico to St. Thomas to transport cocaine. The court held that no special skill was used to pilot the boat, which the defendant borrowed from a friend. The boat had a 40 horsepower engine and contained no navigational equipment, marine radio, or nautical charts. De La Cruz had no boating license, made the trip in the daytime, and took a direct route. Based on these facts, the Court found that the trip was a straight, relatively simple trip requiring only line-of-sight navigation, with the boat never out of sight of land. It distinguished the 11th Circuit's opinion in US v. Calderon, 127 F.3d 1314 (1997), where the enhancement was warranted where the defendants piloted a 38-foot boat on the high seas from the Bahamas to Southern Florida, traveled at night with the lights off using only charts and a compass, and took a circuitous path to avoid detection by the Coast Guard. Here, it was clear error to apply the enhancement. Reversed and remanded.

Third Circuit Blog

Third Circuit Blog
In USA v. Abrogar, No. 06-1215 (Aug. 18, 2006), appellant's sentence for failing to an keep accurate oil record book (required for ships by international treaty prohibiting oily waste discharges and 33 USC 1908(a)) was enhanced 6 levels because the offense "resulted in" discharges of oily waste, USSG 2Q1.3(b)(1). The Third Circuit disagreed, first observing that the offense only encompasses the failure to maintain accurate records while the ship is in US waters or at a US port. Applying a relevant conduct analysis, the Court reasoned that since no discharges occurred in US waters, they didn't occur during the commission of, in preparation for, or in the course of attempting to avoid detection for, the offense of conviction. Reversed and remanded.

3d Cir allows consideration of crack/powder disparity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New standard for reckless disregard of truth of law enforcement information

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

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

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

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

Discovery of significance of evidence does not make it newly discovered

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

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

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

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

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

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

Room to Challenge a Prior Order of Removal/Deportation

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

Broad discretion to investigate jury misconduct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Peter Goldberger contributed to this posting.)

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

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

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

§ 4243 commitment orders after acquittal by reason of insanity appealable

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

Third Circuit Blog

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

Car Stop Upheld as Based on Reasonable Suspicion

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

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

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

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