In U.S. v. Schiff, --- F.3d ----, 2010 WL 1338141, April 07, 2010, defendants were "high-ranking corporate executives" at a pharmaceutical company, indicted for orchestrating a securities fraud scheme in violation of 15 U.S.C. § 78j(b) and SEC Rule 10b-5. The government filed an interlocutory appeal over a district court order addressing several contested theories of liability as well as expert witness issues under Daubert.
In a lengthy opinion only briefly summarized here, the Court first addressed, and rejected, the viability of the government's legal theory that defendant had a fiduciary duty to rectify codefendant's allegedly material misstatements in subsequent SEC filings. Absent a duty to disclose, silence is not fraudulent or misleading under Rule 10b-5. Pursuant to Oran v. Stafford, a duty to disclose under Rule 10b-5 may arise only in three circumstances: when there is [1] insider trading, [2] a statute requiring disclosure, or [3] an inaccurate, incomplete or misleading prior disclosure. The Court rejected the government’s theory that "high corporate executives" have any general fiduciary obligation to disclose under Rule 10b-5. To the extent the Government argued an alternative theory that this duty to disclose based on statements of another rests instead on prong three of Oran (misstatements), the issue was waived.
The Court next rejected the government’s three liability theories – "all of a piece," "duty to update," and "duty to correct," – with respect to defendant’s omissions from his own statements, which did fall under Oran’s third prong as the allegations failed to suffice under those theories.
With regard to exclusion of the government's proposed expert-who would have testified to Bristol's stock price drop as evidence of Rule 10b-5's materiality element- the Circuit found no abuse of discretion. The methodology of the government's expert, did not fit the issues and was not relevant to primary issue of materiality, as the methodology failed to control for unrelated adverse events that were simultaneously disclosed and that could have caused stock price drop.
Friday, April 23, 2010
Court Finds Inadvertent Out-of-jurisdiction Arrest Reasonable; Declines to Address Sentencing Entrapment and Manipulation Doctrines
In U.S. v. Sed, --- F.3d ----, 2010 WL 1292152 (Apr. 6, 2010), defendant, convicted of conspiracy to distribute and PWID, challenged (1) the validity of his arrest in Ohio by Pennsylvania state police and (2) the denial of a sentencing reduction based on sentencing entrapment and/or manipulation.
First addressing Sed’s arrest, the Circuit held it reasonable under Fourth Amendment despite the fact that Pennsylvania state police violated Ohio law by seizing him outside of their jurisdiction. The Court first rejected the notion that any violation of state law constituted an ipso facto violation of the Fourth Amendment, citing Virginia v. Moore, 553 U.S. 164 (2008). Next, the Court found the arrest reasonable under the totality analysis, based on the fact that defendant had committed a serious drug crime in Pennsylvania, was acting in furtherance of conspiracy to distribute drugs in Pennsylvania at time he was seized, was responsible for a last-minute change of plans such that the second controlled buy occurred close to the state line, and that the police intended to arrest Sed in Pennsylvania and believed that they had done so at the time.
Next the Court addressed Sed’s challenges to his sentence, claiming the police entrapped him into selling drugs in amounts beyond what he what he was predisposed to sell (sentencing entrapment) and that they unfairly strung out their investigation solely to increase the quantity of drugs he sold (sentencing factor manipulation). The Court noted a Circuit split, but declined to address the validity of the doctrines in this case. Instead, it found that Sed could not establish the requisite factual predicates for either, given the District Court found that Sed had perjured himself when he testified regarding his lack of predisposition to sell cocaine and also because the police were not required to arrest Sed after the first controlled purchase.
First addressing Sed’s arrest, the Circuit held it reasonable under Fourth Amendment despite the fact that Pennsylvania state police violated Ohio law by seizing him outside of their jurisdiction. The Court first rejected the notion that any violation of state law constituted an ipso facto violation of the Fourth Amendment, citing Virginia v. Moore, 553 U.S. 164 (2008). Next, the Court found the arrest reasonable under the totality analysis, based on the fact that defendant had committed a serious drug crime in Pennsylvania, was acting in furtherance of conspiracy to distribute drugs in Pennsylvania at time he was seized, was responsible for a last-minute change of plans such that the second controlled buy occurred close to the state line, and that the police intended to arrest Sed in Pennsylvania and believed that they had done so at the time.
Next the Court addressed Sed’s challenges to his sentence, claiming the police entrapped him into selling drugs in amounts beyond what he what he was predisposed to sell (sentencing entrapment) and that they unfairly strung out their investigation solely to increase the quantity of drugs he sold (sentencing factor manipulation). The Court noted a Circuit split, but declined to address the validity of the doctrines in this case. Instead, it found that Sed could not establish the requisite factual predicates for either, given the District Court found that Sed had perjured himself when he testified regarding his lack of predisposition to sell cocaine and also because the police were not required to arrest Sed after the first controlled purchase.
Thursday, March 25, 2010
"Seemingly innocent" activity sufficient to support probable cause for search warrant in light of initial tip and subsequent police surveillance
In United States v. Stearn, 08-3230 (3d Cir. March 9, 2010), the Third Circuit reversed a district court's suppression order after concluding that the searches conducted were supported by probable cause. Based on a tip from a confidential informant that defendants Michael and Joseph Doebley were selling cocaine powder supplied to them by Edward Stearn, police officers began surveillance of the defendants' homes and vehicles. The officers observed two controlled buys of cocaine involving one of the defendants, real estate records, utility bills, and police observation corroborated the informant's statement that defendants' cocaine business operated out of a gym, and the informant demonstrated knowledge of defendants' homes, cars, and daily routines. After the surveillance was completed, officers sought search warrants for five properties and 2 vehicles owned or frequented by the defendants. A magistrate judge issued the warrants and drugs, drug paraphernalia and money were recovered from all but one residence.
The district court granted the defendants' motions to suppress the recovered evidence because it found insufficient evidence of probable cause within the supporting search warrant affidavit. The court found that the affidavit contained no evidence regarding the reliability of the informant and no information connecting any of the searched locations to actual drug dealing activity. Because the court found the affidavit's defects so severe, it perfunctorily declined to apply the Leon "good faith" exception to the exclusionary rule. Finally, the court applied its suppression order to all of the defendants without determining standing as to each individual defendant.
On appeal, the Third Circuit found the district court's across-the-board exclusionary remedy to be a fundamental error. While the government had conceded each defendant's standing to challenge one or more specified searches, it actively disputed each defendant's right to challenge all the searches. The district court's failure to account for the government's defendant-specific concessions resulted in evidence being suppressed against a defendant who did not even challenge its admissibility, much less prove an expectation of privacy therein. Notwithstanding this fundamental error by the district court, however, the Third Circuit was unable to resolve the case on the standing prong alone because of the government's concessions regarding standing for each defendant as to one or more of the searches. Thus, the Court was compelled to determine the constitutionality of each search on a defendant-specific basis.
Turning to the probable cause determination, the Third Circuit found that the district court's probable cause analysis erroneously discounted the reliability of the confidential informant where the informant's tip was corroborated in significant part by independent police observation. Officers corroborated the defendants' drug involvement through two controlled buys, real estate records, utility bills, and the informant's knowledge of the defendants' homes, vehicles, and daily activities. Although there was no direct evidence that the defendants were dealing drugs out of their homes, the Court found circumstantial corroboration of the informant's tip in the defendants' "peculiar shuttling" among their properties and their frequent stops at a gym which police had linked to two drug deals. Finally, the Court found that the district court's refusal to consider Third Circuit precedent stating that it is reasonable, under certain circumstances, to infer that drug dealers often store evidence of drug crimes in their residences resulted from an unduly restrictive parsing of the case law.
Although the Third Circuit ultimately determined that the magistrate judge had a sufficient basis for his probable cause determination, it further held that, even if probable cause was lacking, the extreme sanction of exclusion was not warranted in this case. The Court noted that exclusion is a rare circumstance where a magistrate judge has found probable cause. Here, the district court improperly truncated its good faith analysis based on its erroneous characterization of the "bare bones" nature of the affidavit and its failure to credit circumstantial corroboration of the informant's tip. Furthermore, given the complexity of the district court's probable cause analysis, it was unreasonable to expect that lay officers executing the search warrant would have reasonably believed that the magistrate judge was incorrect in his probable cause determination.
Finally, examining each property in turn, the Third Circuit concluded that the informant's tip, in conjunction with the evidence adduced by officers in subsequent investigation, afforded the magistrate with a substantial basis for determining probable cause existed to search each of the properties at issue. The Court found each residence searched to be part of a network of suspiciously titled homes connected to at least one of the three defendants whose involvement in the drug trade had been confirmed through surveillance and controlled buys. Accordingly, the Court reversed the district court's suppression order and remanded the case for further proceedings.
The district court granted the defendants' motions to suppress the recovered evidence because it found insufficient evidence of probable cause within the supporting search warrant affidavit. The court found that the affidavit contained no evidence regarding the reliability of the informant and no information connecting any of the searched locations to actual drug dealing activity. Because the court found the affidavit's defects so severe, it perfunctorily declined to apply the Leon "good faith" exception to the exclusionary rule. Finally, the court applied its suppression order to all of the defendants without determining standing as to each individual defendant.
On appeal, the Third Circuit found the district court's across-the-board exclusionary remedy to be a fundamental error. While the government had conceded each defendant's standing to challenge one or more specified searches, it actively disputed each defendant's right to challenge all the searches. The district court's failure to account for the government's defendant-specific concessions resulted in evidence being suppressed against a defendant who did not even challenge its admissibility, much less prove an expectation of privacy therein. Notwithstanding this fundamental error by the district court, however, the Third Circuit was unable to resolve the case on the standing prong alone because of the government's concessions regarding standing for each defendant as to one or more of the searches. Thus, the Court was compelled to determine the constitutionality of each search on a defendant-specific basis.
Turning to the probable cause determination, the Third Circuit found that the district court's probable cause analysis erroneously discounted the reliability of the confidential informant where the informant's tip was corroborated in significant part by independent police observation. Officers corroborated the defendants' drug involvement through two controlled buys, real estate records, utility bills, and the informant's knowledge of the defendants' homes, vehicles, and daily activities. Although there was no direct evidence that the defendants were dealing drugs out of their homes, the Court found circumstantial corroboration of the informant's tip in the defendants' "peculiar shuttling" among their properties and their frequent stops at a gym which police had linked to two drug deals. Finally, the Court found that the district court's refusal to consider Third Circuit precedent stating that it is reasonable, under certain circumstances, to infer that drug dealers often store evidence of drug crimes in their residences resulted from an unduly restrictive parsing of the case law.
Although the Third Circuit ultimately determined that the magistrate judge had a sufficient basis for his probable cause determination, it further held that, even if probable cause was lacking, the extreme sanction of exclusion was not warranted in this case. The Court noted that exclusion is a rare circumstance where a magistrate judge has found probable cause. Here, the district court improperly truncated its good faith analysis based on its erroneous characterization of the "bare bones" nature of the affidavit and its failure to credit circumstantial corroboration of the informant's tip. Furthermore, given the complexity of the district court's probable cause analysis, it was unreasonable to expect that lay officers executing the search warrant would have reasonably believed that the magistrate judge was incorrect in his probable cause determination.
Finally, examining each property in turn, the Third Circuit concluded that the informant's tip, in conjunction with the evidence adduced by officers in subsequent investigation, afforded the magistrate with a substantial basis for determining probable cause existed to search each of the properties at issue. The Court found each residence searched to be part of a network of suspiciously titled homes connected to at least one of the three defendants whose involvement in the drug trade had been confirmed through surveillance and controlled buys. Accordingly, the Court reversed the district court's suppression order and remanded the case for further proceedings.
Monday, March 22, 2010
Sentence vacated and remanded where the district court did not properly apply U.S.S.G. 2C1.1(b)(2) to determine the amount of a "benefit received"
In United States v. Lianidis, No. 09-1165 (D.NJ 03/19/10), the Court of Appeals vacated and remanded for re-sentencing where the district court did not properly apply section 2C1.1(b)(2) - a guideline provision which determines the amount of a “benefit received” for sentencing purposes.
Lianidis was the president of DMS, a computer engineering company founded by her husband. DMS was subsequently awarded government contracts to set up computer systems for the FAA. These contracts were awarded by a longtime friend of Lianidis, Darrell Woods (an employee of the FAA), who had received numerous cash payments (i.e bribes) from Lianidis which totaled over $150,000. While the contracts were secured with bribes, the work performed by Lianidis’ company was deemed “legitimate.” Thereafter, over a six year period, the FAA paid Lianidis’ company more than $6.7 million dollars.
Because of the bribes, Lianidis was indicted and pled guilty to three counts of bribery of a federal employee. Of importance, there was a plea agreement which expressly stated there was no agreement under § 2C1.1(b)(2) as to the calculation of “value, benefit, and loss.” This was the subject of dispute at sentencing and then again on appeal.
Prior to sentencing, the probation office recommended a 16-level increase, under § 2C1.1(b)(2), concluding that the “benefit received” by Lianidis was between $1,000,000 and $2,500,000. At sentencing, the district court agreed - the court calculated the “benefit received” using two approaches: the first was the “Landers approach” (based on United States v. Landers, 68 F.3d 82 (5th Cir. 1995)); and the second was the “salary approach.” The "Landers approach" calculates “benefit received” by deducting direct costs, but not indirect costs, from the gross proceeds of the illegally obtained contracts. The “salary approach” uses the salaries earned as a proxy for the “benefit received.”
Using both approaches, the district court found that the “benefit received” was in excess of $1,000,000. Consequently, the 16 level enhancement under § 2C1.1(b)(2) was applied which increased Lianidis’ base offense level to 25. With a criminal history category I the advisory guideline range was 57 - 71 months. Due to Lianidis’ personal circumstances, the Court granted a nine month downward variance and sentenced her to 48 months imprisonment. Lianidis appealed.
On appeal, Lianidis argued that the district court erred both in the application and use of the “Landers approach” as well as the use of the “salary approach.” And, as a result, Lianidis argued the district court committed clear error in its application of the 16-level enhancement.
First, with regard to the “Landers approach,” Liandis argued that the “benefit received” should be calculated by subtracting “legitimate costs” from the gross revenue - a slightly different approach than the method used in Landers. The Third Circuit disagreed. The Court, referring to an application note of § 2C1.1, observed the phrase “benefit received” was discussed in terms of “net value” and “profit.” With regard to “net value” the Court, relying on Landers, found that only "direct costs" should be subtracted because “indirect costs, like bribes, do not impact the harm caused by the bribery, and allowing the deduction of interest costs would foster inconsistency in sentencing.”
Liandis argued in the alternative, should the Court apply the "Landers approach," that "direct costs" should include both company overhead as well as her and her husband’s salaries. In response, the Third Circuit again referred to Landers to determine what constituted a “direct cost.” After providing lengthy definitions of both “direct” and “indirect costs,” the Court stated “succinctly whether a cost is direct or indirect depends on whether it can be easily attributable to the specific contract at issue.” In Lianidis’ case, the district court concluded (without explanation) that the company overhead and salaries were not “direct costs.” Consequently, the Third Circuit remanded the matter because the district court did not engage in the proper analysis.
Finally, with regard to the “salary theory,” Lianidis argued that the district court erred in calculating the “benefit received” in terms of “profit” based on her and her husband’s salaries. Again citing an application note to § 2C1.1, the Third Circuit agreed, stating that the “benefit received” is not the salary earned (legally), but rather the “net value” received by the company pursuant to the government contract.
In conclusion, the Court adopted the Fifth Circuit’s approach in Landers and concluded that “the ‘benefit received’ under § 2C1.1(b)(2) is the net value, minus direct costs, accruing to the entity on whose behalf the defendant paid the bribe.”
Of note, while Judge Hardiman agreed with the majority’s adoption of the "Landers approach," he dissented. He found no clear error and thought the sentence should have therefore been affirmed.
Lianidis was the president of DMS, a computer engineering company founded by her husband. DMS was subsequently awarded government contracts to set up computer systems for the FAA. These contracts were awarded by a longtime friend of Lianidis, Darrell Woods (an employee of the FAA), who had received numerous cash payments (i.e bribes) from Lianidis which totaled over $150,000. While the contracts were secured with bribes, the work performed by Lianidis’ company was deemed “legitimate.” Thereafter, over a six year period, the FAA paid Lianidis’ company more than $6.7 million dollars.
Because of the bribes, Lianidis was indicted and pled guilty to three counts of bribery of a federal employee. Of importance, there was a plea agreement which expressly stated there was no agreement under § 2C1.1(b)(2) as to the calculation of “value, benefit, and loss.” This was the subject of dispute at sentencing and then again on appeal.
Prior to sentencing, the probation office recommended a 16-level increase, under § 2C1.1(b)(2), concluding that the “benefit received” by Lianidis was between $1,000,000 and $2,500,000. At sentencing, the district court agreed - the court calculated the “benefit received” using two approaches: the first was the “Landers approach” (based on United States v. Landers, 68 F.3d 82 (5th Cir. 1995)); and the second was the “salary approach.” The "Landers approach" calculates “benefit received” by deducting direct costs, but not indirect costs, from the gross proceeds of the illegally obtained contracts. The “salary approach” uses the salaries earned as a proxy for the “benefit received.”
Using both approaches, the district court found that the “benefit received” was in excess of $1,000,000. Consequently, the 16 level enhancement under § 2C1.1(b)(2) was applied which increased Lianidis’ base offense level to 25. With a criminal history category I the advisory guideline range was 57 - 71 months. Due to Lianidis’ personal circumstances, the Court granted a nine month downward variance and sentenced her to 48 months imprisonment. Lianidis appealed.
On appeal, Lianidis argued that the district court erred both in the application and use of the “Landers approach” as well as the use of the “salary approach.” And, as a result, Lianidis argued the district court committed clear error in its application of the 16-level enhancement.
First, with regard to the “Landers approach,” Liandis argued that the “benefit received” should be calculated by subtracting “legitimate costs” from the gross revenue - a slightly different approach than the method used in Landers. The Third Circuit disagreed. The Court, referring to an application note of § 2C1.1, observed the phrase “benefit received” was discussed in terms of “net value” and “profit.” With regard to “net value” the Court, relying on Landers, found that only "direct costs" should be subtracted because “indirect costs, like bribes, do not impact the harm caused by the bribery, and allowing the deduction of interest costs would foster inconsistency in sentencing.”
Liandis argued in the alternative, should the Court apply the "Landers approach," that "direct costs" should include both company overhead as well as her and her husband’s salaries. In response, the Third Circuit again referred to Landers to determine what constituted a “direct cost.” After providing lengthy definitions of both “direct” and “indirect costs,” the Court stated “succinctly whether a cost is direct or indirect depends on whether it can be easily attributable to the specific contract at issue.” In Lianidis’ case, the district court concluded (without explanation) that the company overhead and salaries were not “direct costs.” Consequently, the Third Circuit remanded the matter because the district court did not engage in the proper analysis.
Finally, with regard to the “salary theory,” Lianidis argued that the district court erred in calculating the “benefit received” in terms of “profit” based on her and her husband’s salaries. Again citing an application note to § 2C1.1, the Third Circuit agreed, stating that the “benefit received” is not the salary earned (legally), but rather the “net value” received by the company pursuant to the government contract.
In conclusion, the Court adopted the Fifth Circuit’s approach in Landers and concluded that “the ‘benefit received’ under § 2C1.1(b)(2) is the net value, minus direct costs, accruing to the entity on whose behalf the defendant paid the bribe.”
Of note, while Judge Hardiman agreed with the majority’s adoption of the "Landers approach," he dissented. He found no clear error and thought the sentence should have therefore been affirmed.
No per se rule that a prior conviciton under 4B1.1 must be established by a "certified" record
In United States v. Howard, No. 08-4748 (E.D.PA 03/19/10), the Court of Appeals affirmed the district court’s reference to “uncertified documents” in its determination that Mr. Howard was a career offender under U.S.S.G. § 4B1.1.
Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school. At sentencing he objected to application of the career offender enhancement based on two prior drug convictions. As to one of the prior convictions, the district court relied on an incomplete certified conviction record and an uncertified Municipal Court document which indicated that Howard was convicted of felony drug conspiracy (no sentencing transcript was available). As a result, Howard’s base offense level of 13 (pursuant to § 2D1.1) was enhanced to 32 (pursuant to § 4B1.1). The district court sentenced Howard to 148 months and Howard appealed.
On appeal, Howard did not contest that he had two prior drug convictions, but rather argued that the district court impermissibly relied on uncertified documents in determining whether or not the career offender enhancement applied. The Court of Appeals disagreed. In doing so, the Court held that “evidence presented at sentencing must have a sufficient indicia of reliability to support its probable accuracy.” That the fact of a prior conviction is not an element of the crime and all the government needs to do at sentencing is present evidence that establishes the conviction by a preponderance of the evidence. The Court added that there is no “per se rule that certified copies of conviction must be offered by the government” to determine whether or not the career offender enhancement applies (a similar argument was rejected by the Court in United States v. Watkins, 54 F.3d 163, 168 (3d. Cir. 1995)).
The Court concluded that the district court’s reliance on the incomplete certified conviction record and the uncertified Municipal Court document to establish a prior drug conviction for career offender purposes was in keeping with the standard set forth in Shepard v. United States, 544 U.S. 13, 16 (2005)(a sentencing court may determine the existence of a prior conviction by relying on “the terms of the plea agreement, the charging document, the transcript of the colloquy ... or other comparable judicial record of sufficient reliability”)(emphasis added).
Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school. At sentencing he objected to application of the career offender enhancement based on two prior drug convictions. As to one of the prior convictions, the district court relied on an incomplete certified conviction record and an uncertified Municipal Court document which indicated that Howard was convicted of felony drug conspiracy (no sentencing transcript was available). As a result, Howard’s base offense level of 13 (pursuant to § 2D1.1) was enhanced to 32 (pursuant to § 4B1.1). The district court sentenced Howard to 148 months and Howard appealed.
On appeal, Howard did not contest that he had two prior drug convictions, but rather argued that the district court impermissibly relied on uncertified documents in determining whether or not the career offender enhancement applied. The Court of Appeals disagreed. In doing so, the Court held that “evidence presented at sentencing must have a sufficient indicia of reliability to support its probable accuracy.” That the fact of a prior conviction is not an element of the crime and all the government needs to do at sentencing is present evidence that establishes the conviction by a preponderance of the evidence. The Court added that there is no “per se rule that certified copies of conviction must be offered by the government” to determine whether or not the career offender enhancement applies (a similar argument was rejected by the Court in United States v. Watkins, 54 F.3d 163, 168 (3d. Cir. 1995)).
The Court concluded that the district court’s reliance on the incomplete certified conviction record and the uncertified Municipal Court document to establish a prior drug conviction for career offender purposes was in keeping with the standard set forth in Shepard v. United States, 544 U.S. 13, 16 (2005)(a sentencing court may determine the existence of a prior conviction by relying on “the terms of the plea agreement, the charging document, the transcript of the colloquy ... or other comparable judicial record of sufficient reliability”)(emphasis added).
Thursday, March 18, 2010
Owner of Sporting Goods Store Must Forfeit Firearms Following Conviction for Being a Drug User in Possession of Firearms
United States v. Cheeseman, No. 09-1756, 2010 WL 699550 (3d Cir. Mar 2, 2010). The Third Circuit affirmed the district court’s forfeiture of some 600 firearms, potentially valued at $500,000, in connection with the defendant’s conviction for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3).
The defendant, Cheeseman, was the owner and proprietor of a sporting goods store that maintained an inventory of approximately 600 firearms. Cheeseman developed an addiction to crack cocaine and eventually moved from his home into the warehouse of the store. The district court found that Cheeseman and other addicts used crack on the premises. Additionally, Cheeseman denied being a drug user on his renewal application for his federal firearms dealer license. Cheeseman eventually pleaded guilty to possession of firearms and ammunition by an unlawful user or addict of a controlled substance. The district court ordered the forfeiture of the firearms, which Cheeseman claimed to be valued at $500,000, pursuant to 18 U.S.C. § 924(d)(1). Cheeseman raised two arguments on appeal, viz., that the forfeiture was improper because the property was neither "involved in" nor "used in" a knowing violation of 18 U.S.C. § 922(g)(3) and that forfeiture violated the Excessive Fines Clause of the Eighth Amendment. Both arguments were rejected by the Third Circuit.
The Court of Appeals noted that 18 U.S.C. § 924(d)(1) would permit only forfeiture of firearms that were "involved in" nor "used in" Cheeseman’s offense. The Court held that because "mere possession" does not constitute use, the firearms were not "used in" the offense. The Court further held, however, that "the term's plain meaning leads to the conclusion that the seized firearms … were "involved in" the offense to which Cheeseman pled guilty because the firearms served as the foundation of his criminality and conviction. Indeed, without the firearms, there would have been no crime." The Court explained:
possession of firearms and ammunition is sufficient for a district court to find that the property was "involved in" a § 922(g)(3) offense. This interpretation of "involved in" makes sense in light of Congress' intent to keep firearms out of the possession of drug abusers, a dangerous class of individuals, and supports a finding that the seized firearms and ammunition were "involved in" Cheeseman's § 922(g)(3) offense. This conclusion is bolstered by the District Court's findings that: (1) Cheeseman had unfettered access to the full panoply of weapons located in [the store]; (2) he used crack cocaine in and around those weapons; and (3) he brought other drug abusers to the store and warehouse to smoke crack.
The Court also rejected Cheeseman’s argument the forfeiture constituted an excessive fine in violation of the Eighth Amendment because "the forfeiture of Cheeseman's firearms and ammunition was not grossly disproportionate to his 18 U.S.C. § 922(g)(3) offense because he was abusing drugs while illegally possessing firearms, he was part of the class of persons whose behavior the statute criminalized, and the value of the firearms was at most two times the maximum penalty imposed by the statute."
The defendant, Cheeseman, was the owner and proprietor of a sporting goods store that maintained an inventory of approximately 600 firearms. Cheeseman developed an addiction to crack cocaine and eventually moved from his home into the warehouse of the store. The district court found that Cheeseman and other addicts used crack on the premises. Additionally, Cheeseman denied being a drug user on his renewal application for his federal firearms dealer license. Cheeseman eventually pleaded guilty to possession of firearms and ammunition by an unlawful user or addict of a controlled substance. The district court ordered the forfeiture of the firearms, which Cheeseman claimed to be valued at $500,000, pursuant to 18 U.S.C. § 924(d)(1). Cheeseman raised two arguments on appeal, viz., that the forfeiture was improper because the property was neither "involved in" nor "used in" a knowing violation of 18 U.S.C. § 922(g)(3) and that forfeiture violated the Excessive Fines Clause of the Eighth Amendment. Both arguments were rejected by the Third Circuit.
The Court of Appeals noted that 18 U.S.C. § 924(d)(1) would permit only forfeiture of firearms that were "involved in" nor "used in" Cheeseman’s offense. The Court held that because "mere possession" does not constitute use, the firearms were not "used in" the offense. The Court further held, however, that "the term's plain meaning leads to the conclusion that the seized firearms … were "involved in" the offense to which Cheeseman pled guilty because the firearms served as the foundation of his criminality and conviction. Indeed, without the firearms, there would have been no crime." The Court explained:
possession of firearms and ammunition is sufficient for a district court to find that the property was "involved in" a § 922(g)(3) offense. This interpretation of "involved in" makes sense in light of Congress' intent to keep firearms out of the possession of drug abusers, a dangerous class of individuals, and supports a finding that the seized firearms and ammunition were "involved in" Cheeseman's § 922(g)(3) offense. This conclusion is bolstered by the District Court's findings that: (1) Cheeseman had unfettered access to the full panoply of weapons located in [the store]; (2) he used crack cocaine in and around those weapons; and (3) he brought other drug abusers to the store and warehouse to smoke crack.
The Court also rejected Cheeseman’s argument the forfeiture constituted an excessive fine in violation of the Eighth Amendment because "the forfeiture of Cheeseman's firearms and ammunition was not grossly disproportionate to his 18 U.S.C. § 922(g)(3) offense because he was abusing drugs while illegally possessing firearms, he was part of the class of persons whose behavior the statute criminalized, and the value of the firearms was at most two times the maximum penalty imposed by the statute."
Deficient Seach Warrant in Child Porn Case "Saved" by Good Faith Exception
United States v. Tracey, No. 08-3290, 2010 WL 681364 (3d Cir. Mar. 1, 2010). The Third Circuit reversed the district court’s suppression order in a child pornography case and held that although the search warrant was deficient because it did not clearly indicate that the items-to-be-seized, the good faith exception applied because the "officer could understandably believe that he had met the requirements of the Fourth Amendment."
The defendant, Tracey, was the subject of a state investigation into the internet distribution of a certain video containing child pornography. Tracey’s IP address was identified as participating in the distribution of the video via a peer-to-peer sharing program. Based on that information, the local police obtained a search warrant for Tracey’s residence from a state magistrate. The warrant identified the items to be searched and seized as follows: "Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs… COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media." A seven-page affidavit of probable cause was attached to the application for the warrant which described more specifically the items subject to the search. The Government conceded that the description of the items to be searched for and seized lacked the particularity required by the Fourth Amendment unless the affidavit of probable cause was incorporated. The Third Circuit found that the affidavit had not been incorporated because the application and the warrant did not contain any explicit words of incorporation and the description of the items to be searched for and seized did not incorporate the affidavit.
The Court of Appeals further held that while the warrant was constitutionally deficient because it lacked particularity, the exclusionary rule should not have been applied because the police acted in good faith in relying on the warrant because they could have reasonable believed that the warrant incorporated the narrower affidavit.
The defendant, Tracey, was the subject of a state investigation into the internet distribution of a certain video containing child pornography. Tracey’s IP address was identified as participating in the distribution of the video via a peer-to-peer sharing program. Based on that information, the local police obtained a search warrant for Tracey’s residence from a state magistrate. The warrant identified the items to be searched and seized as follows: "Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs… COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media." A seven-page affidavit of probable cause was attached to the application for the warrant which described more specifically the items subject to the search. The Government conceded that the description of the items to be searched for and seized lacked the particularity required by the Fourth Amendment unless the affidavit of probable cause was incorporated. The Third Circuit found that the affidavit had not been incorporated because the application and the warrant did not contain any explicit words of incorporation and the description of the items to be searched for and seized did not incorporate the affidavit.
The Court of Appeals further held that while the warrant was constitutionally deficient because it lacked particularity, the exclusionary rule should not have been applied because the police acted in good faith in relying on the warrant because they could have reasonable believed that the warrant incorporated the narrower affidavit.
Monday, February 15, 2010
Court Upholds Constitutionality of "SORNA"
In United States v. Shenandoah, No. 09-1205 (Feb. 9, 2010), the Third Circuit confronted one of what it called “hundreds of similar challenges” filed in federal courts to the Sexual Offender Registration and Notification Act (“SORNA”). In one fell swoop, it rejected a broad range of constitutional challenges in the case of a defendant convicted of statutory rape a decade before the law’s enactment in 2006.
Upon being paroled, Paul Shenandoah registered as a sex offender under the law of New York State, where he had been convicted. In August of 2007, he moved to Pennsylvania for employment as an iron worker. He did not register in that state as a sex offender or modify his New York registration to reflect his change of residence and employment. SORNA, as construed by the Court, requires persons in his position to keep their registration current on and after July 27, 2006. The defendant entered a conditional guilty plea reserving the right to appeal the district court’s rejection of his motion to dismiss on various grounds. He was sentenced to 12 months and one day of imprisonment, to be followed by ten years of supervised release.
As a threshold matter, the Third Circuit found it immaterial that neither Pennsylvania nor New York had complied with SORNA’s statutory mandates regarding, for instance, provision of registration information to certain entities. The Court found it sufficient simply that Pennsylvania and New York each operated sex offender registries after SORNA’s effective date. In a related conclusion, the Court held that the defendant could have complied with SORNA by following the two states’ laws, and thus rejected a due process challenge premised on the contention that compliance was impossible.
The Court next rejected an ex post facto challenge grounded on the fact that the defendant’s release from prison and original registration obligation predated SORNA’s enactment. There was no retroactive application of any law inflicting greater punishment for preexisting conduct, the Court concluded. Rather, the defendant committed a new crime by moving from Pennsylvania to New York roughly 13 months after SORNA’s enactment and then failing to keep his registration in the two states current. The Court did not pause to mention a challenge pending before the Supreme Court, Carr v. United States, No. 08-1301 (Carr’s merits brief here; brief of the United States here), concerning the Ex Post Facto Clause’s application to a registered offender whose travel in interstate commerce predated SORNA’s enactment. Oral argument is to be heard in that case next week.
Turning to a challenge under the Due Process Clause, the Court found that the conviction was not infirm for lack of notice. The Court found dispositive the undisputed facts “that Shenandoah knew that he was required to register under New York law” and that New York law “mandated that he update his registration if he traveled or moved out of state and that he register in the new state.” It was immaterial that the notice provided by New York’s registration form did not explain that a failure to register would be a violation of federal as well as state law. In a related holding, the Court concluded that SORNA is not a “specific intent law,” rejecting the argument that the indictment failed to allege a prima facie violation.
Nor was the Court impressed by the argument that Congress exceeded its Commerce Clause powers. Citing three categories of activity that United States v. Lopez, 514 U.S. 549 (1995), identified as within Congress’s authority to regulate, the Court found that SORNA was a valid regulation of “persons in interstate commerce” and of the “use of the channels of interstate commerce.” It reasoned that Shenandoah’s relocation made him “undeniably a ‘person … in interstate commerce.'” As to the regulation of “use,” the Court quoted a 1925 decision of the Supreme Court upholding Congress’s power to “forbid or punish use of interstate commerce ‘as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.’”
The Tenth Amendment did not require reversal, the Court next held, because the defendant, as a private party, had no standing to assert any challenge to federal encroachment on state sovereignty.
The Court concluded its merits analysis by rejecting the defendant’s claim that SORNA infringed upon his constitutional right to travel. The Court reasoned that the defendant “may travel interstate, but when he does, must register in the new state.… [M]oving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon anyone’s right to travel.” The Court also found it “worth noting” that the right to travel “is not an absolute right,” and that the burden imposed by SORNA “is necessary to achieve a compelling interest.… in preventing future sex crimes.”
The Court left open a possibility of a successful challenge on the part of a narrow class of persons “who, for various reasons, did not have a registration requirement prior to the passage of SORNA.” Such persons, it indicated, would have standing to challenge a series of implementing regulations adopted by the Attorney General in 2007 and 2008 to clarify SORNA’s application. As to this defendant, the Court held that the regulations were inapplicable.
Upon being paroled, Paul Shenandoah registered as a sex offender under the law of New York State, where he had been convicted. In August of 2007, he moved to Pennsylvania for employment as an iron worker. He did not register in that state as a sex offender or modify his New York registration to reflect his change of residence and employment. SORNA, as construed by the Court, requires persons in his position to keep their registration current on and after July 27, 2006. The defendant entered a conditional guilty plea reserving the right to appeal the district court’s rejection of his motion to dismiss on various grounds. He was sentenced to 12 months and one day of imprisonment, to be followed by ten years of supervised release.
As a threshold matter, the Third Circuit found it immaterial that neither Pennsylvania nor New York had complied with SORNA’s statutory mandates regarding, for instance, provision of registration information to certain entities. The Court found it sufficient simply that Pennsylvania and New York each operated sex offender registries after SORNA’s effective date. In a related conclusion, the Court held that the defendant could have complied with SORNA by following the two states’ laws, and thus rejected a due process challenge premised on the contention that compliance was impossible.
The Court next rejected an ex post facto challenge grounded on the fact that the defendant’s release from prison and original registration obligation predated SORNA’s enactment. There was no retroactive application of any law inflicting greater punishment for preexisting conduct, the Court concluded. Rather, the defendant committed a new crime by moving from Pennsylvania to New York roughly 13 months after SORNA’s enactment and then failing to keep his registration in the two states current. The Court did not pause to mention a challenge pending before the Supreme Court, Carr v. United States, No. 08-1301 (Carr’s merits brief here; brief of the United States here), concerning the Ex Post Facto Clause’s application to a registered offender whose travel in interstate commerce predated SORNA’s enactment. Oral argument is to be heard in that case next week.
Turning to a challenge under the Due Process Clause, the Court found that the conviction was not infirm for lack of notice. The Court found dispositive the undisputed facts “that Shenandoah knew that he was required to register under New York law” and that New York law “mandated that he update his registration if he traveled or moved out of state and that he register in the new state.” It was immaterial that the notice provided by New York’s registration form did not explain that a failure to register would be a violation of federal as well as state law. In a related holding, the Court concluded that SORNA is not a “specific intent law,” rejecting the argument that the indictment failed to allege a prima facie violation.
Nor was the Court impressed by the argument that Congress exceeded its Commerce Clause powers. Citing three categories of activity that United States v. Lopez, 514 U.S. 549 (1995), identified as within Congress’s authority to regulate, the Court found that SORNA was a valid regulation of “persons in interstate commerce” and of the “use of the channels of interstate commerce.” It reasoned that Shenandoah’s relocation made him “undeniably a ‘person … in interstate commerce.'” As to the regulation of “use,” the Court quoted a 1925 decision of the Supreme Court upholding Congress’s power to “forbid or punish use of interstate commerce ‘as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.’”
The Tenth Amendment did not require reversal, the Court next held, because the defendant, as a private party, had no standing to assert any challenge to federal encroachment on state sovereignty.
The Court concluded its merits analysis by rejecting the defendant’s claim that SORNA infringed upon his constitutional right to travel. The Court reasoned that the defendant “may travel interstate, but when he does, must register in the new state.… [M]oving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon anyone’s right to travel.” The Court also found it “worth noting” that the right to travel “is not an absolute right,” and that the burden imposed by SORNA “is necessary to achieve a compelling interest.… in preventing future sex crimes.”
The Court left open a possibility of a successful challenge on the part of a narrow class of persons “who, for various reasons, did not have a registration requirement prior to the passage of SORNA.” Such persons, it indicated, would have standing to challenge a series of implementing regulations adopted by the Attorney General in 2007 and 2008 to clarify SORNA’s application. As to this defendant, the Court held that the regulations were inapplicable.
Tuesday, February 02, 2010
Circuit Reverses Grant of Acquittal in Drug Conspiracy
United States v. Boria, No. 08-2550, 2009 WL 282088 (Jan. 26, 2010). Following a jury verdict of guilty on charges of aiding and abetting and conspiracy to possess with intent to distribute cocaine, the district court entered a judgment of acquittal, finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. The Circuit reversed, holding that the conconspirator’s "crucial" testimony, combined with suspicious circumstances under which defendant became involved with the tractor-trailer carrying the drugs, established that defendant knew drugs were involved.
The evidence at trial showed that another conspirator, Diaz, brought to Philadelphia a tractor-trailer which contained one hundred kilograms of cocaine. A DEA informant, Alvarado, received a phone call from another conspirator, Morel, who was searching for a garage which could fit a tractor-trailer for unloading. Alvarado met with Morel and four other Mexican nationals, none of which were Boria. An overnight parking location was chosen. The next morning Alvarado returned to the parking lot to take Diaz to breakfast. When the two arrived at the diner, Alvarado received a phone call from Morel informing Alvarado that he had sent someone to take the tractor-trailer to a garage for unloading. Alvarado testified that he was told by Morel that Boria "was supposed to take the tractor-trailer from [Alvarado] and take it to a garage to unload the drugs that were in the back of the tractor-trailer." On cross, Alvarado maintained that Boria was responsible for "taking the truck from [his] hands to take it to another garage to unload it," and for "tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck." Morel informed Alvarado and Diaz that this man would identify himself as "Ruben," and Alvarado identified Boria as Ruben. When Alvarado and Diaz pulled into the parking lot. Boria identified himself as Ruben and confirmed that Morel had sent him. Alvarado acknowledged he had never before seen Boria. Diaz then climbed into the driver's side of the truck and Boria climbed into the passenger's side. The truck left its location with Alvarado following, at Morel's request, and eventually stopped in a K-Mart parking lot. Alvarado exited his car and approached the truck to ask Boria why they had stopped there because it was a "hot area." When Alvarado reached the tractor, Boria was on his cell phone. After Boria hung up, Alvarado asked where the truck was heading. Boria responded that he was going to a garage in North Philadelphia, but that he was waiting for someone to open it. When the truck pulled out of the parking lot, it was stopped by the police, who had been observing the truck since receiving Alvarado's tip. Police gained access to the locked trailer portion with a key on the ring they found in the ignition. After three hours of searching, the police located one hundred kilograms of cocaine hidden in boxes, which themselves were hidden in the middle of the trailer within pallets of mostly rotten fruit.
The District Court entered a judgment of acquittal for Boria finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. The court found: "there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer; no probative evidence of the substance of any communications in which Mr. Boria engaged; no evidence that Mr. Boria ever ‘possessed’ or saw the cocaine, or that he ever saw the back of the trailer unlocked; no evidence of any prior relationship between Mr. Boria and any co-conspirators; and no evidence that Mr. Boria previously had been involved in any drug-trafficking activities."
In reversing, the Circuit held that a rational trier of fact could infer that Boria knew drugs were involved based on Alvarado's testimony and the suspicious circumstances under which Boria became associated with the tractor-trailer. Boria was responsible for taking the truck for unloading, but first had to arrange a garage. He knew exactly which truck to approach, confirmed Morel had sent him, and began directing the truck to a garage. A reasonable juror could conclude, based on this arrangement, that Boria knew something criminal was afoot. Alvarado's testimony that Boria was responsible for unloading the drugs, attributable to Boria as a co-conspirator, then serves as the crucial additional fact imputing knowledge of drugs, as opposed to some other form of contraband. Accordingly, a rational trier of fact could have found Boria guilty, beyond a reasonable doubt, of conspiracy to possess with intent to distribute cocaine and aiding and abetting the possession of cocaine.
The evidence at trial showed that another conspirator, Diaz, brought to Philadelphia a tractor-trailer which contained one hundred kilograms of cocaine. A DEA informant, Alvarado, received a phone call from another conspirator, Morel, who was searching for a garage which could fit a tractor-trailer for unloading. Alvarado met with Morel and four other Mexican nationals, none of which were Boria. An overnight parking location was chosen. The next morning Alvarado returned to the parking lot to take Diaz to breakfast. When the two arrived at the diner, Alvarado received a phone call from Morel informing Alvarado that he had sent someone to take the tractor-trailer to a garage for unloading. Alvarado testified that he was told by Morel that Boria "was supposed to take the tractor-trailer from [Alvarado] and take it to a garage to unload the drugs that were in the back of the tractor-trailer." On cross, Alvarado maintained that Boria was responsible for "taking the truck from [his] hands to take it to another garage to unload it," and for "tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck." Morel informed Alvarado and Diaz that this man would identify himself as "Ruben," and Alvarado identified Boria as Ruben. When Alvarado and Diaz pulled into the parking lot. Boria identified himself as Ruben and confirmed that Morel had sent him. Alvarado acknowledged he had never before seen Boria. Diaz then climbed into the driver's side of the truck and Boria climbed into the passenger's side. The truck left its location with Alvarado following, at Morel's request, and eventually stopped in a K-Mart parking lot. Alvarado exited his car and approached the truck to ask Boria why they had stopped there because it was a "hot area." When Alvarado reached the tractor, Boria was on his cell phone. After Boria hung up, Alvarado asked where the truck was heading. Boria responded that he was going to a garage in North Philadelphia, but that he was waiting for someone to open it. When the truck pulled out of the parking lot, it was stopped by the police, who had been observing the truck since receiving Alvarado's tip. Police gained access to the locked trailer portion with a key on the ring they found in the ignition. After three hours of searching, the police located one hundred kilograms of cocaine hidden in boxes, which themselves were hidden in the middle of the trailer within pallets of mostly rotten fruit.
The District Court entered a judgment of acquittal for Boria finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. The court found: "there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer; no probative evidence of the substance of any communications in which Mr. Boria engaged; no evidence that Mr. Boria ever ‘possessed’ or saw the cocaine, or that he ever saw the back of the trailer unlocked; no evidence of any prior relationship between Mr. Boria and any co-conspirators; and no evidence that Mr. Boria previously had been involved in any drug-trafficking activities."
In reversing, the Circuit held that a rational trier of fact could infer that Boria knew drugs were involved based on Alvarado's testimony and the suspicious circumstances under which Boria became associated with the tractor-trailer. Boria was responsible for taking the truck for unloading, but first had to arrange a garage. He knew exactly which truck to approach, confirmed Morel had sent him, and began directing the truck to a garage. A reasonable juror could conclude, based on this arrangement, that Boria knew something criminal was afoot. Alvarado's testimony that Boria was responsible for unloading the drugs, attributable to Boria as a co-conspirator, then serves as the crucial additional fact imputing knowledge of drugs, as opposed to some other form of contraband. Accordingly, a rational trier of fact could have found Boria guilty, beyond a reasonable doubt, of conspiracy to possess with intent to distribute cocaine and aiding and abetting the possession of cocaine.
Circuit Affirms Summary Judgment for State Defendants in Delaware Lethal Injection Case
Jackson v. Danberg, No. 09-1925 and 09-2052 (Feb. 1, 2010). In a § 1983 class action challenging the constitutionality of lethal injection in Delaware, neither (1) Delaware’s record of errors in implementing its execution protocol, nor (2) the absence of a planned alternative to peripheral venous access, show a substantial risk of serious harm under the standard announced in Baze v. Rees. The District Court’s order of summary judgment for the state defendants is affirmed, and the stay of executions pending appeal is dissolved.
In this long (47-page) opinion, the Third Circuit holds that the practice of lethal injection in Delaware is constitutional under Baze v. Rees, 553 U.S. 35 (2008). The Supreme Court held in Baze that the standard governing method-of-execution claims brought under § 1983 is whether the challenged practice poses a "substantial risk of serious harm" to the condemned prisoner. Finding no such risk in Delaware, the Third Circuit affirms the District Court’s grant of summary judgment for the state defendants, and dissolves the stay of executions that had been in place since the beginning of this litigation, in May 2006. Although the opinion notes that "the worrisome course [Delaware] appears to have taken at times under its formal protocol . . . gives us great pause," Slip op., 46, it nonetheless gives the green light for executions to resume in Delaware.
The opinion is notable for its lengthy discussion of the plurality opinion and the multiple concurring and dissenting opinions in Baze, although both parties in this case had agreed that the applicable standard was the plurality’s "substantial risk of serious harm" standard. The opinion then discusses the plaintiffs’ substantive claims: first, that the record of failures to comply with the execution protocol shows an unconstitutional risk of similar failures in the future; and second, that Defendants’ failure to adopt alternatives to peripheral venous access, for the foreseeable possibility that the executioners will be unable to establish peripheral access in a condemned prisoner, also show unconstitutional risk.
With regard to the plaintiffs’ evidence of Delaware’s failures to conduct a single of the 13 executions by lethal injection without deviating from the written protocol, the opinion finds that none of the mistakes shows a substantial risk. The court opens by saying, "the record is bereft of evidence that any of the thirteen inmates Delaware has executed using the three-drug protocol was still conscious when injected with potassium chloride." Slip op., 35, but then acknowledges that the evidentiary proffer regarding the Brian Steckel execution was disputed before the District Court, and some "evidence indicat[ed] that he had not received the appropriate dosage" of the anesthetic. Slip op., 36. The opinion then states, "Even assuming that Steckel suffered great pain during his botched execution, however, does no preclude summary judgment for Delaware, as Baze left no room for doubt that a single instance of mistake does not suffice to demonstrate a substantial risk of serious harm." Id. The court finds Plaintiffs’ other evidence of noncompliance with the written protocol, such as failure to follow the requirements for the training of execution personnel, similarly does not show unconstitutional risk.
Plaintiffs’ second claim was that Delaware’s failure to provide for an alternative to venous access poses a risk of a failed execution, similar to what happened when Ohio tried, and failed, to execute Romell Broom in September 2009. The panel relies on Baze, which did not require a backup plan, to hold that this does not render Delaware’s protocol unconstitutional.
Finally, the opinion comments on the Defendants’ cross-appeal issue: the District Court’s
grant of a stay pending appeal. While acknowledging that the District Court’s potential reasons continuing the stay are obvious, the panel "encourage[s] district courts int his circuit to state their reasons for granting stays pending appeal." Slip op., 46.
Submitted by Maria Pulzetti
In this long (47-page) opinion, the Third Circuit holds that the practice of lethal injection in Delaware is constitutional under Baze v. Rees, 553 U.S. 35 (2008). The Supreme Court held in Baze that the standard governing method-of-execution claims brought under § 1983 is whether the challenged practice poses a "substantial risk of serious harm" to the condemned prisoner. Finding no such risk in Delaware, the Third Circuit affirms the District Court’s grant of summary judgment for the state defendants, and dissolves the stay of executions that had been in place since the beginning of this litigation, in May 2006. Although the opinion notes that "the worrisome course [Delaware] appears to have taken at times under its formal protocol . . . gives us great pause," Slip op., 46, it nonetheless gives the green light for executions to resume in Delaware.
The opinion is notable for its lengthy discussion of the plurality opinion and the multiple concurring and dissenting opinions in Baze, although both parties in this case had agreed that the applicable standard was the plurality’s "substantial risk of serious harm" standard. The opinion then discusses the plaintiffs’ substantive claims: first, that the record of failures to comply with the execution protocol shows an unconstitutional risk of similar failures in the future; and second, that Defendants’ failure to adopt alternatives to peripheral venous access, for the foreseeable possibility that the executioners will be unable to establish peripheral access in a condemned prisoner, also show unconstitutional risk.
With regard to the plaintiffs’ evidence of Delaware’s failures to conduct a single of the 13 executions by lethal injection without deviating from the written protocol, the opinion finds that none of the mistakes shows a substantial risk. The court opens by saying, "the record is bereft of evidence that any of the thirteen inmates Delaware has executed using the three-drug protocol was still conscious when injected with potassium chloride." Slip op., 35, but then acknowledges that the evidentiary proffer regarding the Brian Steckel execution was disputed before the District Court, and some "evidence indicat[ed] that he had not received the appropriate dosage" of the anesthetic. Slip op., 36. The opinion then states, "Even assuming that Steckel suffered great pain during his botched execution, however, does no preclude summary judgment for Delaware, as Baze left no room for doubt that a single instance of mistake does not suffice to demonstrate a substantial risk of serious harm." Id. The court finds Plaintiffs’ other evidence of noncompliance with the written protocol, such as failure to follow the requirements for the training of execution personnel, similarly does not show unconstitutional risk.
Plaintiffs’ second claim was that Delaware’s failure to provide for an alternative to venous access poses a risk of a failed execution, similar to what happened when Ohio tried, and failed, to execute Romell Broom in September 2009. The panel relies on Baze, which did not require a backup plan, to hold that this does not render Delaware’s protocol unconstitutional.
Finally, the opinion comments on the Defendants’ cross-appeal issue: the District Court’s
grant of a stay pending appeal. While acknowledging that the District Court’s potential reasons continuing the stay are obvious, the panel "encourage[s] district courts int his circuit to state their reasons for granting stays pending appeal." Slip op., 46.
Submitted by Maria Pulzetti
Monday, February 01, 2010
Court Upholds Denial of IA Claim: No Evidentiary Hearing was Necessary and Petitioner Failed to Show Prejudice
In Palmer v. Hendricks, No. 06-2991 (3rd Cir. Jan. 26, 2010), the Third Circuit affirms the district court’s denial of habeas relief on Palmer’s claim that his trial counsel was ineffective for failing to advise him of his right to testify. Petitioner failed to show prejudice resulting from counsel’s failure to advise him of his right to testify, where petitioner’s factual proffer regarding this ineffectiveness claim did not include a proffer of his testimony, had he received proper advice and chosen to testify.
The Circuit also affirmed the District Court’s denial of an evidentiary hearing on this claim. Palmer raised this claim in state post-conviction proceedings, and the state court held that, based on the record, Palmer had been informed sufficiently during trial of his right to testify. The state court based this on the transcript, which showed one time trial counsel requested and received time to consult with his client, and also showed that the judge read to Palmer, and later to the jury, the instruction on a criminal defendant’s election not to testify. The state court reasoned that if Palmer understood the choice not to testify, he understood that he had the choice to testify.
This opinion is most notable for Section III.A.1, a lengthy discussion of evidentiary hearings in federal habeas. The Third Circuit restates the standard for an evidentiary hearing in federal court, although it finds that Palmer was not improperly denied such a hearing:
because Palmer’s petition does not contain sufficient "factual allegations, which, if true, would entitle the applicant to federal habeas relief," the District Court did not abuse its discretion in declining Palmer’s request for an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
The longer discussion of Landrigan, however, includes what the opinion describes as a "consideration" for a District Court to make when deciding whether to hold an evidentiary hearing: "‘if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.’ Schriro, 550 U.S. at 474." This is only the second time the Third Circuit has relied upon that language; the first time was in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), another Fuentes opinion.
Two additional things stand out in this section: first, the opinion ignores the previous week’s decision in Wood v. Allen, 558 U.S. ___ , No. 08-9156 (Jan. 20, 2010), which of course was not decided under § 2254(e)(2). Second, in footnote four, the court states that Palmer was diligent in developing his claim in state court, and affirms that the "failure to develop" language in 2254(e)(2) is defeated where a petitioner makes a factual proffer (in this case, via affidavit) and requests an evidentiary hearing.
In III.A.2, the opinion addresses the prejudice prong – somewhat ignoring the state court’s analysis of the deficient performance prong. "Notably, Palmer did not set forth the facts to which he would have testified had he taken the stand at his trial." Slip op., 8. Without such a proffer, the court holds, he cannot show prejudice. In III.A.3, the opinion notes that structural error does not arise from counsel’s failure to advise a defendant of the right to testify.
The Circuit also affirmed the District Court’s denial of an evidentiary hearing on this claim. Palmer raised this claim in state post-conviction proceedings, and the state court held that, based on the record, Palmer had been informed sufficiently during trial of his right to testify. The state court based this on the transcript, which showed one time trial counsel requested and received time to consult with his client, and also showed that the judge read to Palmer, and later to the jury, the instruction on a criminal defendant’s election not to testify. The state court reasoned that if Palmer understood the choice not to testify, he understood that he had the choice to testify.
This opinion is most notable for Section III.A.1, a lengthy discussion of evidentiary hearings in federal habeas. The Third Circuit restates the standard for an evidentiary hearing in federal court, although it finds that Palmer was not improperly denied such a hearing:
because Palmer’s petition does not contain sufficient "factual allegations, which, if true, would entitle the applicant to federal habeas relief," the District Court did not abuse its discretion in declining Palmer’s request for an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
The longer discussion of Landrigan, however, includes what the opinion describes as a "consideration" for a District Court to make when deciding whether to hold an evidentiary hearing: "‘if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.’ Schriro, 550 U.S. at 474." This is only the second time the Third Circuit has relied upon that language; the first time was in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), another Fuentes opinion.
Two additional things stand out in this section: first, the opinion ignores the previous week’s decision in Wood v. Allen, 558 U.S. ___ , No. 08-9156 (Jan. 20, 2010), which of course was not decided under § 2254(e)(2). Second, in footnote four, the court states that Palmer was diligent in developing his claim in state court, and affirms that the "failure to develop" language in 2254(e)(2) is defeated where a petitioner makes a factual proffer (in this case, via affidavit) and requests an evidentiary hearing.
In III.A.2, the opinion addresses the prejudice prong – somewhat ignoring the state court’s analysis of the deficient performance prong. "Notably, Palmer did not set forth the facts to which he would have testified had he taken the stand at his trial." Slip op., 8. Without such a proffer, the court holds, he cannot show prejudice. In III.A.3, the opinion notes that structural error does not arise from counsel’s failure to advise a defendant of the right to testify.
Submitted by Maria Pulzetti
Sunday, January 24, 2010
Pennsylvania Resisting Arrest is Crime of Violence Under Begay
In United States v. Stinson, No. 08-1717, the Third Circuit recently ruled that Pennsylvania Resisting Arrest is a crime of violence under Begay. The Pennsylvania statue specifies two ways in which a defendant may resist arrest: (1) by creating a substantial risk of bodily injury to an officer or another; or (2) by employing means justifying or requiring substantial force to overcome the resistance. The Court held that the first "fits squarely within the definition of a crime of violence in the residual clause." Under Begay, the Court had to analyze whether the second "typically involve[s] purposeful, violent, and aggressive conduct." The Court held that it does.
"Such conduct poses as great or greater a risk as burglary or extortion . . . . [R]esisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public . . . . [T]he offense engenders a significant risk of conflict and, correspondingly, a significant risk of injury." It is "by definition, purposeful, aggressive and violent," because the statute requires "the intent of preventing a public servant from effectuating a lawful arrest . . . . and knowingly engaging in conflict with another." [Note: This seems to invoke the "powder keg" theory rejected by the Supreme Court in Chambers. The Court purports to distinguish resisting arrest from its walk-away escape decision, Hopkins, in a footnote, however: "[Misdemeanor escape 'is conduct materially less violent and aggressive than the enumerated offenses." . . . Such is not the case with resisting arrest."]
Stinson had argued that because resisting arrest could include passive resistance, it should not be a categorical crime of violence, relying on Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. Ct. 2007), a case in which the defendant and her husband had interlocked arms and legs and refused to respond to commands of officers. The Court found that Thompson was "hardly passive," yelling and waving her hands in an attempt to scare an officer's horse, "causing the animal to rear up," and struggling with the officers "for a few minutes." The Court "found no decision . . . that affirmed a conviction for resisting arrest based on a defendant's inaction or simply 'lying down or 'going limp.'" [Note: This seems to ignore the reality that most resisting arrest prosecutions are resolved without a trial, so there are few reported cases.]
The Court then asserted that the "'ordinary' or 'typical' fact scenario underlying resisting arrest convictions in Pennsylvania" involves purposeful, violent and aggressive conduct.
This was a disappointing result, especially because the Court had granted panel rehearing of the first adverse decision. The Third Circuit Defenders participated as amicus, and David McColgin, EDPA, presented very strong oral argument on behalf of Mr. Stinson.
"Such conduct poses as great or greater a risk as burglary or extortion . . . . [R]esisting arrest necessarily involves confronting the authority of a police officer who is likely armed and charged with defending the public . . . . [T]he offense engenders a significant risk of conflict and, correspondingly, a significant risk of injury." It is "by definition, purposeful, aggressive and violent," because the statute requires "the intent of preventing a public servant from effectuating a lawful arrest . . . . and knowingly engaging in conflict with another." [Note: This seems to invoke the "powder keg" theory rejected by the Supreme Court in Chambers. The Court purports to distinguish resisting arrest from its walk-away escape decision, Hopkins, in a footnote, however: "[Misdemeanor escape 'is conduct materially less violent and aggressive than the enumerated offenses." . . . Such is not the case with resisting arrest."]
Stinson had argued that because resisting arrest could include passive resistance, it should not be a categorical crime of violence, relying on Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. Ct. 2007), a case in which the defendant and her husband had interlocked arms and legs and refused to respond to commands of officers. The Court found that Thompson was "hardly passive," yelling and waving her hands in an attempt to scare an officer's horse, "causing the animal to rear up," and struggling with the officers "for a few minutes." The Court "found no decision . . . that affirmed a conviction for resisting arrest based on a defendant's inaction or simply 'lying down or 'going limp.'" [Note: This seems to ignore the reality that most resisting arrest prosecutions are resolved without a trial, so there are few reported cases.]
The Court then asserted that the "'ordinary' or 'typical' fact scenario underlying resisting arrest convictions in Pennsylvania" involves purposeful, violent and aggressive conduct.
This was a disappointing result, especially because the Court had granted panel rehearing of the first adverse decision. The Third Circuit Defenders participated as amicus, and David McColgin, EDPA, presented very strong oral argument on behalf of Mr. Stinson.
Friday, January 22, 2010
Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense
United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin. The District Court sentenced Diaz to a term of 480 months imprisonment - the sum of consecutive sentences of 120 months for each firearm count and 240 months for possession with intent to distribute heroin. Nelson appealed, arguing that his convictions and consecutive sentences for the two firearm charges based on a single predicate offense violated the Double Jeopardy Clause.
The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have taken the opposite view, that the unit of prosecution is the firearm possession (or use), and that the language of the statute and legislative history could be interpreted to support both sides. For these reasons, the Court looked to the rule of lenity in reaching its decision, finding "without hesitation that ‘[a]fter ‘seiz[ing] everything from which aid can be derived’ we are ‘left with an ambiguous statute,’" and adding, "[a]pplication of the rule of lenity is particularly appropriate in the context of § 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions."
The Third Circuit agreed. Consistent with nine other Courts of Appeals, the Circuit held that the proper "unit of prosecution" under the statute is the underlying predicate offense – in this case the drug distribution count – rather than the possession of a firearm. The Court recognized that two other Circuits have taken the opposite view, that the unit of prosecution is the firearm possession (or use), and that the language of the statute and legislative history could be interpreted to support both sides. For these reasons, the Court looked to the rule of lenity in reaching its decision, finding "without hesitation that ‘[a]fter ‘seiz[ing] everything from which aid can be derived’ we are ‘left with an ambiguous statute,’" and adding, "[a]pplication of the rule of lenity is particularly appropriate in the context of § 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions."
Thursday, January 21, 2010
Court Continues to Require Careful Tailoring of Internet Restrictions on Sex Offenders
In United States v. Heckman, 08-3844, the Third Circuit extended its line of precedent (Crandon, Freeman, Voelker, Thielemann) requiring district courts to carefully tailor internet restrictions for sex offenders on supervised release. Heckman had a lengthy history of child molestation, but he had never been convicted of using the internet to entice or exploit a child -- the type of conduct the Court has previously said is essential to supporting Internet bans. Nonetheless, on the instant conviction for transporting child pornography, the district court imposed a lifetime, unconditional ban on Internet access. The Court rejected this condition, refusing to make the "inferential leap" that Heckman would eventually progress to using the Internet directly to harm a child. The Court also noted that there are alternative, less restrictive means of controlling an offender's Internet use, including computer monitoring conditions. The Court made clear, however, that it was not holding that limited Internet bans of shorter duration can never be imposed as conditions of supervised release in child pornography cases.
The Court rejected Heckman's challenge to a mental health condition that he had argued impermissibly delegated too much authority to Probation. It read the condition as requiring participation in mental health treatment, leaving only the details to be set by Probation, which is permissible under the Court's precedent in Pruden. The government had conceded that a condition governing contact with minors was impermissible because it gave full discretion over Heckman's contact with minors (including his own family members) to Probation.
Congratulations to Christy Unger, EDPA, for the win!
The Court rejected Heckman's challenge to a mental health condition that he had argued impermissibly delegated too much authority to Probation. It read the condition as requiring participation in mental health treatment, leaving only the details to be set by Probation, which is permissible under the Court's precedent in Pruden. The government had conceded that a condition governing contact with minors was impermissible because it gave full discretion over Heckman's contact with minors (including his own family members) to Probation.
Congratulations to Christy Unger, EDPA, for the win!
Thursday, January 14, 2010
En Banc Court to Revisit Construction of Federal Conspiracy Statute
On the government’s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "whether the two clauses in 18 U.S.C. § 371 – the ‘offense’ clause and the ‘defraud’ clause – constitute separate offenses under the Double Jeopardy Clause of the United States Constitution." (More fully, the statute begins: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States....")
The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule, while the dissent tallied a 2-1 split to opposite effect. (The disagreement owed to conflicting views regarding the scope of certain rulings.)
The case involves the high-profile prosecution of members of the Rigas family on charges of diverting funds from Adelphia Communications Corporation for personal use. Until its collapse in 2002, Adelphia was the country’s sixth largest cable operator.
The issue split the original panel. In an opinion by Judge Fuentes, the majority held that the conspiracy statute creates a single statutory offense, while Judge Rendell, in dissent, construed the statute to create distinct ones. Both opinions recognized a circuit split on the issue, although the judges offered different counts: the majority found a 4-3 split in favor of its rule, while the dissent tallied a 2-1 split to opposite effect. (The disagreement owed to conflicting views regarding the scope of certain rulings.)
The case involves the high-profile prosecution of members of the Rigas family on charges of diverting funds from Adelphia Communications Corporation for personal use. Until its collapse in 2002, Adelphia was the country’s sixth largest cable operator.
Monday, December 21, 2009
Intentional 45 month delay in bringing defendant to trial violated defendant's Sixth Amendment speedy trial rights
In a rare reversal of a district court's speedy trial decision, the Third Circuit in United States v. Battis, 08-2949 (3d Cir. December 14, 2009), concluded that the government's intentional 45 month delay in bringing the defendant to trial violated the defendant's Sixth Amendment right to a speedy trial. The Court reversed the district court's judgment denying defendant's speedy trial motion and remanded the case with instructions to dismiss the indictment and vacate the defendant's conviction.
The case arose out of a bar fight in Philadelphia. The defendant, Germaine Battis, was arrested by Philadelphia police for, among other things, illegally possessing a firearm. He was arraigned in state court on January 20, 2004. One month later, on February 24, 2004, Battis was indicted in federal court for possession of a firearm by a convicted felon. A federal bench warrant was issued as a detainer because Battis was in state custody, but the detainer was never formally filed. Battis was not arraigned in federal court until November 2, 2006. In the interim, state officials were waiting for the federal government to proceed with its case, while federal prosecutors intentionally delayed prosecution in order for the state court case to proceed against Battis. It was not until September 18, 2006, when the state court dismissed the state charges against Battis on speedy trial grounds, that federal prosecutors finally began to proceed with their case.
Battis filed a motion to dismiss the federal case on speedy trial ground, but the motion was denied by the district court. His case proceeded to trial and he was ultimately convicted of being a felon-in-possession. On June 23, 2008, he was sentenced to 120 months imprisonment. On appeal, the Third Circuit weighed the four Barker v. Wingo, 407 U.S. 514 (1972) constitutional speedy trial factors anew and determined that Battis's constitutional speedy trial rights had been violated. First, the Court calculated the length of the delay as 45 months, measured from the date of the federal indictment through the beginning of the trial. The Court affirmatively ruled that a defendant's arrest on related state charges does not trigger the speedy trial protection for a subsequent federal charge. The length of this delay was more than sufficient to trigger speedy trial protection. Second, the reason for the delay, weighed against the government. The Court found that the government’s justification, deference to the state’s interest in prosecution, failed in this case because while an "initial delay to allow the state to proceed may have been valid, there came a time when the federal Government should have taken some action to proceed in light of the state authorities' inaction."
The third factor, whether defendant asserted his speedy trial right, weighed in the defendant’s favor. The Court noted that Battis notified authorities on four occasions that he wanted his federal case to proceed, and addressed three requests for a speedy trial to the court. Notably, federal counsel made a request within weeks of being appointed. Finally, the Court held that "prejudice will be presumed when there is a forty-five-month delay in bringing a defendant to trial, even when it could be argued that only thirty-five months of that delay is attributable to the Government" and that in this case the government was not able to rebut this presumption. Battis's preparation for the state case during the delay did not alleviate any prejudice even though the charges in the state case were based on essentially the same facts as the federal charges, as this did not address the reason for presuming prejudice-that the delay undermines the basic reliability of the trial and the concerns of Battis's counsel in the two cases, and their resulting investigative efforts, would necessarily have been different. Moreover, the threat to the reliability of a trial is especially high where, as here, the delay results in the defendant's not being appointed counsel for three years after indictment.
The Court thus concluded that Battis was presumptively prejudiced by the delay, that all four factors of the Barker test weighed against the government, and that Battis was unconstitutionally deprived of his right to a speedy trial.
Congratulations to the Defender Association of Philadelphia's Federal Court Division on this tremendous win!
The case arose out of a bar fight in Philadelphia. The defendant, Germaine Battis, was arrested by Philadelphia police for, among other things, illegally possessing a firearm. He was arraigned in state court on January 20, 2004. One month later, on February 24, 2004, Battis was indicted in federal court for possession of a firearm by a convicted felon. A federal bench warrant was issued as a detainer because Battis was in state custody, but the detainer was never formally filed. Battis was not arraigned in federal court until November 2, 2006. In the interim, state officials were waiting for the federal government to proceed with its case, while federal prosecutors intentionally delayed prosecution in order for the state court case to proceed against Battis. It was not until September 18, 2006, when the state court dismissed the state charges against Battis on speedy trial grounds, that federal prosecutors finally began to proceed with their case.
Battis filed a motion to dismiss the federal case on speedy trial ground, but the motion was denied by the district court. His case proceeded to trial and he was ultimately convicted of being a felon-in-possession. On June 23, 2008, he was sentenced to 120 months imprisonment. On appeal, the Third Circuit weighed the four Barker v. Wingo, 407 U.S. 514 (1972) constitutional speedy trial factors anew and determined that Battis's constitutional speedy trial rights had been violated. First, the Court calculated the length of the delay as 45 months, measured from the date of the federal indictment through the beginning of the trial. The Court affirmatively ruled that a defendant's arrest on related state charges does not trigger the speedy trial protection for a subsequent federal charge. The length of this delay was more than sufficient to trigger speedy trial protection. Second, the reason for the delay, weighed against the government. The Court found that the government’s justification, deference to the state’s interest in prosecution, failed in this case because while an "initial delay to allow the state to proceed may have been valid, there came a time when the federal Government should have taken some action to proceed in light of the state authorities' inaction."
The third factor, whether defendant asserted his speedy trial right, weighed in the defendant’s favor. The Court noted that Battis notified authorities on four occasions that he wanted his federal case to proceed, and addressed three requests for a speedy trial to the court. Notably, federal counsel made a request within weeks of being appointed. Finally, the Court held that "prejudice will be presumed when there is a forty-five-month delay in bringing a defendant to trial, even when it could be argued that only thirty-five months of that delay is attributable to the Government" and that in this case the government was not able to rebut this presumption. Battis's preparation for the state case during the delay did not alleviate any prejudice even though the charges in the state case were based on essentially the same facts as the federal charges, as this did not address the reason for presuming prejudice-that the delay undermines the basic reliability of the trial and the concerns of Battis's counsel in the two cases, and their resulting investigative efforts, would necessarily have been different. Moreover, the threat to the reliability of a trial is especially high where, as here, the delay results in the defendant's not being appointed counsel for three years after indictment.
The Court thus concluded that Battis was presumptively prejudiced by the delay, that all four factors of the Barker test weighed against the government, and that Battis was unconstitutionally deprived of his right to a speedy trial.
Congratulations to the Defender Association of Philadelphia's Federal Court Division on this tremendous win!
Friday, December 04, 2009
Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well
The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served. The Court had previously so held in U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007). But in Manzella, rehabilitation was the only justification given, whereas the district court in Hoffa cited rehabiliation as well as incapacitation. The Court saw no distinction, holding that the plain meaning of 3582(a) prohibits the use of rehabiliation as "a factor" in imprisonment descisions.
The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.
The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.
Sunday, November 22, 2009
PA Simple Assault = crime of violence under knowing/intentional part of statute
In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v. Begay, 128 S. Ct. 1581 (2008). But the Court did rule that simple assault committed knowingly or intentionally does qualify as a crime of violence. It remanded for a resentencing hearing at which the district court is to determine whether Johnson’s prior conviction for simple assault was for the part of the statute charging knowing and intentional conduct, as opposed to reckless conduct.
Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). The Third Circuit in US v. Dorsey, 174 F.3d 331 (3d Cir. 1999), had ruled the simple assault does qualify as a crime of violence, even though the offense can be committed recklessly.
On appeal, the Circuit, in a lengthy footnote, explained that under Begay, only "purposeful, violent and aggressive" conduct can count as a crime of violence. This "suggest[s] that a crime committed recklessly is not a crime of violence," as nearly every other Circuit has already held. The government on appeal conceded the issue, explaining that the Department of Justice position now is that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence." Thus, the government conceded that Dorsey is no longer good law in light of Begay.
Normally such a concession would make the Court’s resolution of the issue easier. But here, for reasons that are not made clear in the opinion, the Court took the government’s concession as a reason not to resolve the issue. Instead, the Court ruled that knowing or intentional simple assault would qualify as a crime of violence, and it remanded to the district court to determine under the "categorical approach" whether Johnson’s conviction was under this part of the statute. If not, then in light of the DOJ’s concession, the prior conviction as reckless simple assault cannot count as a crime of violence. The Court made clear that this categorical determination is not a factual one but instead solely a question of what part of the statute Johnson actually pled guilty to: "[W]hat matters is the mens rea to which Johnson actually pleaded guilty," and not the facts in the Presentence Report suggesting the conduct was intentional.
Most likely, the Court’s reason for not expressly resolving the recklessness issue is because the same issue is currently pending in two other cases before the Court, and this panel wanted to leave the issue for resolution in one of those cases.
Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). The Third Circuit in US v. Dorsey, 174 F.3d 331 (3d Cir. 1999), had ruled the simple assault does qualify as a crime of violence, even though the offense can be committed recklessly.
On appeal, the Circuit, in a lengthy footnote, explained that under Begay, only "purposeful, violent and aggressive" conduct can count as a crime of violence. This "suggest[s] that a crime committed recklessly is not a crime of violence," as nearly every other Circuit has already held. The government on appeal conceded the issue, explaining that the Department of Justice position now is that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence." Thus, the government conceded that Dorsey is no longer good law in light of Begay.
Normally such a concession would make the Court’s resolution of the issue easier. But here, for reasons that are not made clear in the opinion, the Court took the government’s concession as a reason not to resolve the issue. Instead, the Court ruled that knowing or intentional simple assault would qualify as a crime of violence, and it remanded to the district court to determine under the "categorical approach" whether Johnson’s conviction was under this part of the statute. If not, then in light of the DOJ’s concession, the prior conviction as reckless simple assault cannot count as a crime of violence. The Court made clear that this categorical determination is not a factual one but instead solely a question of what part of the statute Johnson actually pled guilty to: "[W]hat matters is the mens rea to which Johnson actually pleaded guilty," and not the facts in the Presentence Report suggesting the conduct was intentional.
Most likely, the Court’s reason for not expressly resolving the recklessness issue is because the same issue is currently pending in two other cases before the Court, and this panel wanted to leave the issue for resolution in one of those cases.
Thursday, November 05, 2009
For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways
In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockburger v. United States, 284 U.S. 299 (1932), the Third Circuit joined the majority of circuits to rule that 18 U.S.C. § 371 proscribes one offense which may be committed two ways. (Judge Rendell in dissent, however, relied upon Blockburger to find that § 371 creates two separate offenses.) The court also reiterated that the Clause prohibits the government from splitting a single conspiracy into several prosecutions. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir.1987) and United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the court ultimately remanded the case to allow the lower court to determine whether the defendants entered into two separate agreements or only one.
The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.
The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.
Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty
The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for “honest services” fraud under 18 U.S.C. §§ 1341, 1343 and 1346. The defendants ran the Ben Franklin Technology Center (hereinafter “BFTC”). The purpose of BFTC was to administer funds provided by the Commonwealth of Pennsylvania for other organizations in an effort to foster the development and commercialization of new technology. One of BFTC’s clients during the course of this fraudulent scheme was the U.S. Navy. The government indicted the defendants for defrauding BFTC of their honest services by misusing BFTC funds for personal expenditures and thwarting the efforts of subordinate employees to investigate their actions. The indictment also charged the defendants with depriving the U.S. Navy of the honest services of BFTC. In essence, the government sought to extend the honest services fraud theory to non-public officials. The court ultimately concluded that both public and private officials owe a fiduciary duty to the public. Specifically, the court determined that, as public officials owe a duty to protect the common good, private officials have a duty of protection as well, albeit a duty that is based primarily upon economic concerns. The court concluded that the defendants owed a fiduciary duty to BFTC by virtue of their status as corporate officers. The court ultimately ruled that this fiduciary duty could serve as the basis for the charge of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346, where the defendants were charged with executing a fraudulent scheme which breached this fiduciary duty and deprived BFTC of their honest services.
However, the court ruled that, while the indictment sufficiently alleged that the defendants committed honest services fraud against BFTC, the indictment did not sufficiently charge that the defendants committed honest services fraud against the U.S. Navy. Unlike BFTC, the defendants’ relationship with the Navy did not create a fiduciary duty. To the contrary, the relationship between the defendants and the Navy was merely contractual. The court ruled that the government must allege more than a breach of contractual obligations in order to charge a non-public official with honest services fraud.
However, the court ruled that, while the indictment sufficiently alleged that the defendants committed honest services fraud against BFTC, the indictment did not sufficiently charge that the defendants committed honest services fraud against the U.S. Navy. Unlike BFTC, the defendants’ relationship with the Navy did not create a fiduciary duty. To the contrary, the relationship between the defendants and the Navy was merely contractual. The court ruled that the government must allege more than a breach of contractual obligations in order to charge a non-public official with honest services fraud.
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