Writ of Mandamus issues when District Court refuses to instruct jury on all elements of charged offense.

While reiterating its general rule that mandamus is “a drastic remedy that is seldom issued and its use is discouraged,” the Third Circuit nevertheless found “the kind of extraordinary situation in which we are empowered to issue the writ of mandamus,” in United States v. Higden, No. 10-3882 (March 17, 2011).

Defendant was tried for violating 18 U.S.C. § 922 (g)(1), which has three elements: (1) that defendant possessed a firearm; 2) that defendant was a convicted felon; and 3) that the firearm had traveled in interstate commerce. Before trial, Defendant and the Government stipulated that Defendant had satisfied the last two of those three elements, and that the jury should be informed of that stipulation. The District Court refused to permit the Government to mention the stipulation during voir dire, and instructed the jury without mentioning either the convicted felony or interstate commerce elements of the charge. Similarly, at trial, despite several requests by the AUSA, the District Court refused to permit the jury to hear about the stipulation or provide a more complete instruction on the elements of the charged offense. At the end of the trial, the District Court refused again to instruct the jury on all elements of the charge, charging only that “”your job is to decide whether the evidence which was actually presented does or does not establish beyond a reasonable doubt that the defendant, Mr. Higden, had possession of this firearm, that he knew he had possession and knew it was a firearm.”

After a day of deliberation, the jury reported a deadlock. The District Court proposed that the parties accept a majority vote for a verdict. Both counsel rejected the proposal, noting the requirement of a unanimous verdict in criminal cases.

The District Court then scheduled a second trial. Before the second trial, the Government filed a motion in limine to ensure that the jury was properly instructed on all three elements of the charge, and that the Government could present evidence (including the stipulation) on all three elements. The District Court denied the motion. The Government appealed and petitioned for mandamus.

As a threshold matter, the Court of Appeals addressed its jurisdiction. It ruled, first, that it had jurisdiction to hear the Government’s interlocutory appeal concerning the stipulation, because it was a pretrial evidentiary ruling to exclude evidence, under 18 U.S.C. § 3731, but that it did not have jurisdiction to hear an appeal on the refusal to charge the elements of the offense. The Court ruled, however, that it did have jurisdiction to consider the refusal to charge for purposes of mandamus.

On the merits of the appeal, the Third Circuit ruled that a district court may not entirely exclude a stipulated fact from the jury’s consideration when that fact constitutes an element of an offense. So, while a defendant’s stipulation can prevent the jury from hearing the underlying facts of the prior felony, it cannot prevent the jury from hearing the fact of the prior felony conviction. The Court noted that “an appropriately forceful limiting instruction” can cure any prejudice arising from evidence of the prior felony.

As for mandamus, the Court ruled that the Government had met both requirements for issuing a writ: 1) that the Government had no other adequate means for relief; and 2) that the Government’s right to the writ was clear and indisputable. The Court stated that “it is crystal clear” that the Government had no other avenue to compel the District Court to instruct the jury on all three elements of the charge. And the Court stated further that the District Court’s insistence on giving an improper jury charge was “clear and indisputable error”. Therefore, finding this “an extraordinary situation”, the Court granted the petition for mandamus, and remanded, directing the Chief Judge of the Eastern District of Pennsylvania to reassign the case to another district court judge.

Finally, on an editorial note, it is clear from Chief Judge McKee’s opinion that the Court granted the petition for mandamus because of the extreme circumstances, characterizing the situation “as unfortunate as it is regrettable.” Although stating that the Court was “simply at a loss to explain the [district] court's behavior," the Court did observe that “Judge Fullam is a very experienced and hard working jurist and he has devoted decades of service to the federal bench.” Six days after this decision was issued, Judge Fullam stated his intention to resign.

Borrower of rental car generally lacks expectation of privacy in that rental car.

In United States v. Kennedy, No. 09-1980 (March 16, 2011), the Third Circuit affirmed the denial of a suppression motion by a driver of a rental car that was not rented in his name. Police had arrested defendant Kennedy on an outstanding warrant, and searching a nearby rental car that he had borrowed from his girlfriend – the authorized driver – police found guns and drugs inside the car. Defendant moved to suppress the evidence found in the car, asserting a legitimate expectation of privacy in its contents. The District Court denied the motion. After a two-day trial, the jury found Kennedy guilty on three counts of drug and firearms charges. The District Court sentenced him to 300 months in prison.

On appeal, the Third Circuit affirmed. Surveying decisions in the Circuits, the Court observed that while there may be agreement that an authorized driver on the rental agreement will generally have an expectation of privacy “due to his possessory and property interest in the vehicle,” the Circuits are split on whether that same expectation of privacy should be accorded to a driver who has been lent the car by the renter, but is not listed on the rental agreement as an authorized driver. The Court noted that the Eighth and Ninth Circuits have held that an unauthorized driver has an expectation of privacy when he has the renter’s permission, but that the majority of Circuits – Fourth, Fifth, Sixth, Seventh, and Tenth Circuits – hold to the contrary. The Third Circuit joined the majority in holding that “the lack of a cognizable property interest in the rental vehicle . . . makes it generally unreasonable for an unauthorized driver to expect privacy in the vehicle.”

The Court did note, however, that an extraordinary circumstance – not present here – might give rise to an exception to that general rule; as, for example, where the unauthorized driver was not only the authorized driver's spouse, but he had also contacted the rental car company to reserve the car in his name with his credit card, which was billed for the rental.

Court rejects Second Amendment challenges to 18 U.S.C. § 922(g)(1)

Defendant James Barton entered a conditional guilty plea to two counts of being a felon-in-possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), reserving the right to argue on appeal that those convictions violated his Second Amendment right to keep and bear arms. The Third Circuit rejected Barton's challenges, holding that § 922(g)(1) was constitutional both on its face and as applied to Barton. See United States v. Barton, No. 09-2211 (3d Cir. March 4, 2011).

With respect to Barton's facial challenge, the Third Circuit concluded that it was bound by the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008), to reject that challenge. The Heller Court found that the individual right to keep and bear arms, while fundamental, was not unlimited, id. at 626, and certain "longstanding prohibitions on the possession of firearms" are "presumptively lawful." id. at 626-27 n. 26. This includes a prohibition on the possession of firearms by felons. Id. at 626-27. The Third Circuit rejected Barton's argument that Heller's list of "presumptively lawful" regulations was dicta and, instead, found that discussion outcome-determinative. Accordingly, the Court held that it was bound by Heller to deny Barton's facial constitutional challenge to § 922(g)(1).

With respect to Barton's as-applied challenge, the Third Circuit "look[ed] to the historical pedigree of 18 U.S.C. § 922(g) to determine whether the traditional justifications underlying the statute support a finding of permanent disability in this case." Op. at 9. The Court found that "the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses." Op. at 10 (emphasis added). Thus, a felon convicted of a minor, non-violent crime or a felon whose crime of conviction was decades old who was able to show that he was no more dangerous than a typical, law-abiding citizen and posed no continuing threat to society could possibly raise a successful as-applied challenge to § 922(g)(1). Barton's criminal history, which included convictions for drug-trafficking and receiving stolen weapons in the recent past, precluded him from raising a successful as-applied challenge. Accordingly, the Third Circuit found no error in the district court's dismissal of this challenge.

Finally, Barton maintained that even if his prior convictions precluded him from possessing a firearm, he should retain the right to keep a firearm in his home for self-defense. The Third Circuit noted that this argument was foreclosed by its decision in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), which holds that "a felony conviction disqualifies an individual from asserting" his fundamental right to "defense of hearth and home." Id. at 92.

Search warrant affidavit sufficient to establish probable cause in child pornography case despite deficiencies

In United States v. Miknevich, 09-3059 (March 1, 2011), the Third Circuit was asked to determine whether an affidavit prepared by a law enforcement officer in child pornography case supported the district court's finding of probable cause. Defendant was charged with possession of child pornography after police executed a search warrant at his home and seized his computer. He entered a conditional guilty plea, reserving the right to challenge the district court's probable cause determination on appeal. In challenging the sufficiency of the affidavit, the defendant noted the following deficiencies: (1) the affidavit did not indicate that any investigating officer actually downloaded the suspect video file, (2) the affidavit did not indicate that anyone, including any other officers or the magistrate judge, ever actually viewed the suspect file, and (3) the affidavit contained no description of the suspected images or actions in the file.

While the Third Circuit agreed that parts of the affidavit were "imprecise" and "inartfully drafted," it nevertheless found that, even given the infirmities identified, the affidavit still contained information sufficient to support a finding of probable cause. The Court rejected any suggestion that a magistrate judge must review the contents of the actual files or that a search warrant must include copies of the images giving rise to the request for the warrant in order for probable cause to be established. Nor does the investigating officer necessarily need to review the images himself, although this remains, in the Court's view, the best procedure for investigating officers to follow. Instead, the Court found that the title of the computer file at issue, which contained highly graphic references to specific graphic sexual acts involving "6yo" and "7yo" children, coupled with the file's SHA 1 value (i.e., a digital fingerprint identifying the file as one known to contain images of child pornography), provided the magistrate judge with a substantial basis for finding probable cause to issue a search warrant. Accordingly, the Third Circuit affirmed the defendant's conviction and sentence.

State Court Unreasonably Denied Brady Relief for Commonwealth’s Concealment of Evidence

In Lambert v. Beard, ___ F.3d ___, 2011 WL 353209 (3d Cir. Feb. 7, 2011), Judge Barry authored the panel opinion granting guilt-innocence phase relief in this 1984 Philadelphia capital case. The state’s star witness, Jackson, who initially was identified as one of the shooters in a barroom robbery-murder, identified petitioner as one of two robbers who entered the bar while Jackson waited in the getaway car. Jackson was extensively impeached at trial, but the prosecution argued that one aspect of his testimony—his identification of Lambert and a second party as the two men who committed the crime—had never changed. In postconviction and habeas petitions, Lambert presented evidence that the prosecutor’s claim was untrue. The Commonwealth had never disclosed a police activity sheet showing that Jackson at one time named a third party, not Lambert or the second party he identified at trial, as a “co-defendant” responsible for the shooting.

The Commonwealth conceded that the prosecution should have disclosed this information, and the Circuit panel held that the state courts had unreasonably found that the information was not material. The court acknowledged Harrington v. Richter’s holding that a state court merits ruling precludes federal habeas relief as long as “fairminded jurists could disagree” about the correctness of the ruling. Nevertheless, the panel held, it had found constitutional error and had a duty to correct it. Unlike all of the other impeachment evidence introduced at trial, the information in the police activity sheet would have opened “an entirely new line of impeachment” and thus was not cumulative. For that reason, the evidence was material and the state courts’ failure to grant relief for its nondisclosure was unreasonable.

The panel had issued an extraordinary order in November, stating that Lambert was clearly entitled to penalty phase relief because of Mills v. Maryland error, and should be taken off death row while the court drafted a full opinion that would address both the guilt-innocence and penalty phase issues. The Commonwealth’s petition for panel rehearing or rehearing en banc of that order was pending when the panel issued its February opinion. It vacated the November order and dismissed the Commonwealth’s petition on the ground that both were now moot.

Digest by Claudia Van Wyk, EDPA

Pro se notice of appeal liberally construed

In US v. Aswa Mills, No. 10-1542 (Feb. 9, 2011) (click here), the Circuit ruled that a notice of appeal, especially if pro se, should be construed liberally and should be deemed adequate as long as it is "reasonably clear" under all the circumstances which judgment the party seeks to appeal.

Mills filed pro se notice of appeal shortly after his murder conviction, but gave the case number and trial date for an earlier assault case -- a case for which he had already fully served his sentence and had withdrawn an appeal. The Court reasoned that under the circumstances it should have been clear to the government that Mills intended to appeal from his murder conviction, not the expired assault conviction. In addition, the Court noted that the government could not show it was in any way prejudiced. "[A]s long as the judgment the party intends to appeal is fairly discernible, a notice of appeal will be deemed sufficient even though it references the wrong case number, or the wrong judgment date."

Court Finds File Names are in Plain View; Looks at Consent, Inevitable Discovery and Independent Source Doctrines

In a lengthy c.p. opinion in U.S. v. Stabile, --- F.3d ----, 2011 WL 294036 (Feb. 1, 2011), the Third Circuit found the following:
(1) Consent to a warrantless search by cohabitant who had common authority over the property, including seizure of hard drives in common area which were not password protected, was valid; (2) the search of entire contents of the hard drives was reasonable and was not required to be done on-site;
(3) the subsequent revocation of cohabitant's consent by defendant was ineffective;
(4) a three-month delay between seizure of hard drives and obtaining search warrant was not unreasonable given that property was turned over by consent, defendant did not request return of the property, and government's rationale for the delay was reasonable;
(5) file names, which appeared when a folder on defendant’s hard drive was highlighted, indicating child pornography were in "plain view" during search for financial fraud evidence; and
(6) although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

In brief, during a counterfeit check investigation, secret service agents and members of a New Jersey sheriff’s office obtained consent from a cohabitant (“Deetz”) to search the house she shared with Stabile to search for evidence of financial crimes. Next to one of several computers and hard drives, the agents found check stock, check writing software, photocopies of checks, copies of previously-passed fraudulent checks, two printers, and checks with an alias. Agents also located DVD’s bearing titles believed to represent child pornography. When Stabile arrived, he refused to answer questions and attempted to revoke Deetz's consent by stating “I take it back,” but did not request return of his seized property until months later.

Although the agent obtained the six hard drives on July 24, 2006, he did not apply for a state search warrant until October 2006 because of another assigned detail. The warrant authorized search of the computer hard drives for evidence of financial crimes and child pornography. However, the DVDs at this point had already been determined to not contain child pornography, and the detective who would perform the forensic search, was told that there was a problem with the warrant as it related to child pornography and to search only for evidence of financial crimes. During the search, the detective noted numerous suspicious folders, including one “Kazvid,” which he understood to reference a file sharing program used often to share child pornography. He then highlighted the Kazvid folder, which allowed him to view a list of file names contained in the folder. The detective later testified that he highlighted the Kazvid folder not because it necessarily contained child pornography but because-as a suspicious folder-it could harbor evidence of any sort of crime, including a financial crime. He then observed a list of file names suggestive of child pornography and opened twelve different video files to “confirm” that they contained child pornography. He then notified the agent who obtained a federal search warrant based on only the names of the files in the Kazvid folder. This ultimately led to warrants to search the other drives and the child pornography indictment.

Stabile moved to suppress the evidence but the district court concluded that the search of Stabile's house was a valid consent search, that Stabile could not “revoke” Deetz's prior consent under Georgia v. Randolph, that the Government's delay in obtaining a state search warrant was not unreasonably long, and that, under the inevitable discovery doctrine, the evidence obtained from the search of the first hard drive need not be suppressed.

The Circuit affirmed, agreeing that Deetz ( who had common authority over the property) could consent to the warrantless search, including seizure of hard drives in common area which were not password protected. The court further rejected Stabile’s argument that the search of the hard drives should have been done on-site and found that his subsequent revocation of Deetz’s consent was ineffective. The Court also found the three-month delay between the seizure of the hard drives and obtaining of the search warrant reasonable, given that the property was turned over by consent, Stabile did not request return of the property, and government's rationale - that the agent was unavailable due to another assignment - for the delay was reasonable. Finally, the Court held that the file names in the Kizvid folder indicating child pornography were in "plain view" during search for financial fraud evidence because the officer [a] validly arrived at the place where file names were listed, [b] the incriminating character was immediately apparent, and [c] the officer had a lawful right to access the harddrive and, although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied.

Clear-Error Standard of Review Applies to a District Court’s Determination of Recklessness Under Franks

In United States v. Brown, No. 09-3643, the Third Circuit affirmed the District Court’s opinion granting the defendant’s motion to suppress a sample of his DNA pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Two men wearing masks from the movie “Scream” robbed a bank in Western Pennsylvania at gunpoint and fled to a nearby school district building, where they stole a school district van. Police found the van abandoned by the road only a half-mile from the school district building. A “Scream” mask with DNA material was later found in the van. Witnesses reported seeing a silver Volkswagen Jetta driving in the area that morning. The Jetta was described as having white license plates; one witness specifically stated that the Jetta had Maryland plates. A bank teller recognized one of the robbers’ voices as belonging to a regular customer. His acquaintance informed a State Trooper that he had a nephew (Mr. Brown) who had a silver Jetta and visited the area frequently. Further investigations revealed that Mr. Brown, a Maryland resident, may have been visiting the area on the date of the robbery, and left his uncle’s house for a few hours that morning in his silver Jetta.

The Trooper and an FBI Agent sought a warrant to obtain a DNA sample from Mr. Brown in the hopes it would match the DNA found on the “Scream” mask. The Agent never interviewed any of the witnesses. The Trooper filled him in via telephone and provided him with his written reports from the investigation. The Agent never read the witness statements and did not review the investigation reports in detail. The resulting affidavit contained an abbreviated version of the facts of the case. It also contained an averment that witnesses reported seeing the stolen school district van meet up with a silver Jetta with possible Maryland registration. The Agent failed to cross-check the affidavit’s contents with the investigation reports and never asked the Trooper to check the affidavit for accuracy. An Agent in Maryland took the affidavit to a United States Magistrate Judge, who issued the warrant. Mr. Brown’s DNA matched the DNA on the “Scream” mask.

The averment mentioned above turned out to be false. The Trooper testified at the Franks hearing that he never told the Agent that various witnesses saw the van meet up with the Jetta. The District Court granted Mr. Brown’s motion to suppress, finding that the Agent had acted with reckless disregard for the truth and that, in the absence of the “meet-up” between the vehicles, the affidavit lacked probable cause. On appeal, the government conceded falsehood and materiality under Franks and Mr. Brown conceded that the Agent’s actions were not knowing and intentional. The only issue on appeal was whether the Agent’s conduct evinced a reckless disregard for the truth.

The Third Circuit first held that the recklessness determination under Franks is subject to the clear-error standard of review. The Court explained that unlike First Amendment “actual malice” cases (from which Franks recklessness is derived) which are subject to de novo review, the exclusionary rule does not implicate a constitutional right. Rather, the recklessness inquiry goes to whether a violation of the Fourth Amendment requires exclusion of the evidence.

Applying the clear-error standard of review, the Third Circuit held that the District Court properly concluded that the recklessness standard had been met in this case. The Court reiterated that pursuant to Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000), “[a]n assertion is made with reckless disregard when ‘viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.’” In doing so, the Court held that “a court may properly infer that an affiant acted with reckless disregard for the truth where his affidavit contains an averment that was without sufficient basis at the time he drafted it.” The Court reasoned that where a law enforcement officer lacks sufficient grounding to support his averment, “it constitutes an ‘obvious reason[] for doubt’ under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth.”

The Agent basically admitted on the stand that he had no basis for his assertion that the two vehicles met up. Nor was there any basis for such an averment in the materials the Trooper provided to him. Therefore, the District Court did not clearly err in finding that the Agent’s conduct rose to the level of recklessness under Franks.

Christofer Bates, E.D. Pa.

Collective Knowledge of Police Sufficient to Support Reasonable Suspicion for Terry Stop

In United States v. Whitfield, No. 09-3031 (3d Cir., filed December 6, 2010, published January 6, 2011), four Camden police officers in three marked police vehicles were patrolling an area of the city known for violence and drug activity involving crack cocaine. As the caravan approached a particularly active street corner, the officers in the lead car observed two individuals in conversation, later identified as Defendants Whitfield and Langston. Upon receipt of this notice regarding the defendants, the officer in the second car, Officer Redd, observed the defendants engage in a hand-to-hand exchange and quickly exit the area. Officer Redd notified his fellow officers that they should “check out” the two men. However, Officer Redd did not inform his colleagues that he had observed a hand-to-hand exchange between the defendants. All four of the officers stopped their vehicles and approached the defendants. Officer Redd and Sergeant Rivera, who had been driving the third police vehicle in the caravan, claimed that they observed Defendant Whitfield quickly place his hand in his pocket as if he was holding something. The officers drew their weapons and ordered Defendant Whitfield to remove his hand from his pocket, but the defendant refused and continued walking. Officer Redd maintained that Defendant Whitfield looked as if he was searching for a way to escape. As Defendant Whitfield approached Sergeant Rivera, the officer grabbed the defendant and moved him towards the police vehicle. As he was apprehended by Sergeant Rivera, Defendant Whitfield informed the officer that he possessed a firearm. Defendant Whitfield challenged the legality of his seizure by Sergeant Rivera because this officer did not witness Defendant Whitfield engage in the hand-to-hand exchange with Defendant Langston. Sergeant Rivera only observed Defendant Whitfield place his hand in his pocket.

The Third Circuit upheld the seizure, citing the “collective knowledge” doctrine. The Court ruled that, pursuant to this doctrine, “the knowledge of one law enforcement officer is imputed to the officer who actually conducted the seizure, search, or arrest.” The Court reasoned that it would be impractical to expect an officer, who is working with his fellow officers as a “unified and tight-knit team” during a “fast-paced, dynamic situation,” to communicate to the other officers every fact that could be pertinent in a subsequent reasonable suspicion analysis.

Circuit Requires Relevant Conduct to Cross-Reference

Kulick pled guilty to unlawful possession of a firearm. In exchange, the government dismissed other charges, including an extortion charge, dating from more than a year earlier. Nonetheless, the district court cross-referenced to the extortion guideline at sentencing, resulting in application of a guideline four levels higher than would have applied for the unlawful possession of a firearm. The Third Circuit reversed. See United States v. Kulick, No. 09-3833, http://www.ca3.uscourts.gov/opinarch/093833p.pdf.

In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would "eviscerate the effect and import of the Guidelines to permit an enhancement on these facts."

Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court "actively considered" the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines' discouragement of departures on this ground and Cooper's holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.

A SENTENCE TO STATUTORY MAX 30 YEARS - MORE THAN DOUBLE THE GUIDELINE RANGE AND DESPITE A 5K1.1 MOTION - AFFIRMED

In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin’s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.

Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B.L. and M.M., over the internet in exchange for money. She was subsequently charged with one count of production of a sexually explicit visual depiction of a minor, 18 U.S.C. § 2251(a), amongst other counts. Larkin entered a guilty plea pursuant to a plea agreement to this count alone (the rest were dismissed). Pursuant to the plea agreement, the Government moved for a downward departure under § 5K1.1 for Ms. Larkin’s substantial assistance to law enforcement authorities. Additionally, the plea agreement outlined a projected guideline range of 121-151 months imprisonment. Prior to sentencing the United States Probation Office calculated a higher guideline range than the plea agreement contemplated as it added 2 levels for “use of a computer” under § 2G2.1(b)(3) (2003), it found there were two victims (not one) and because of the calculation that Ms. Larkin was a CHC II (not a CHC I as contemplated by the plea agreement). Despite the plea agreement, the Government made arguments in support of the probation office’s positions. After objections, including that the Government violated the plea agreement, the district court did not apply the 2 level enhancement. The district court did, however, agree that there were two victims (i.e. both of Larkin’s children) and that it could consider their mental health evaluations. And, finally, the district court did not find the Government breached the plea agreement when it briefed in support of the U.S. Probation Office’s positions.

Prior to sentencing and despite the Government’s 5K1.1 motion for downward departure, the Court asked the parties to brief possible upward departures. Thereafter, the Court issued its opinion that it intended to upwardly depart. At sentencing, the Court sentenced Ms. Larkin to the statutory maximum 30 years imprisonment with lifetime supervised release.

On appeal, Ms. Larkin raised four issues: 1) Whether the photographs of her one child, B.L., qualified as “sexually explicit” under 18 U.S.C. § 2256(2)(B)(iii) which therefore qualified her as a second victim; 2) Whether the Government’s conduct violated the terms of the plea agreement; 3) Whether the district court violated the ex post facto clause when it upwardly departed five levels; and 4) Whether Larkin’s sentence was reasonable.

First, the Court of Appeals held that the photographs of B.L. were “sexually explicit” because they were “graphic or simulated lascivious exhibition of the genitals or pubic area of any person” under 18 U.S.C. § 2256(2)(B)(iii). In analyzing 5 photographs, the Court applied the “Dost test” which is a 6-factor test (looks at whether there’s a focus on genitalia, sexual suggestiveness, pose, nudity, sexual coyness, intended to elicit a sexual response) in determining whether a depiction is of “lascivious conduct.” See United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986). In applying this test, the Court analyzed each photograph individually and discussed each factor. While in large part the photographs satisfied few of these factors or they were “close calls,” the Court often fell back on factor 6 - that the photographs were “engineered to elicit a sexual response” of their “target audience” - and therefore qualified es “sexually explicit.”

Second, the Court of Appeals held the Government did not violate the terms of the plea agreement. Applying a contract law standard of analysis, the Court considered “whether the government’s conduct falls within the range of expectations reasonably understood by Larkin when she entered her guilty plea.” The Court engaged in a three-step process: 1) review the relevant portions of the plea agreement as compared to the allegations of impropriety by the government; 2) evaluate the conduct and determine if it is violative of the plea agreement; and 3) if there is a violation, fashion an appropriate remedy. The plea agreement contemplated a specific guideline range and cited particular enhancements that did and did not apply. For example, the government agreed that the 2 level enhancement for use of a computer did not apply. Yet, when probation said it did apply and the government argued pre-sentence for its application. The government also provided the probation office with psychologist reports that were in support of an upward departure. The government also filed briefs in response to the court’s request regarding upward departures. Larkin asserted this (among other things) was a breach of the plea agreement. Despite Larkin’s arguments that the plea agreement terms were breached, the Court of appeals disagreed. The Court cited specific language in the plea agreement which stated that, in effect, the government would provide all information to the court and the probation office that was relevant to sentencing factors and was not limited in its response to court requests for briefing. So, in effect, the government drafted a plea agreement with Larkin and agreed to certain terms. Yet, when the probation office mentioned the possibility of an upward departure, the government simply “obliged” by giving them the no doubt unfavorable psychological report which supported the upward departure. Then when the Court requested briefing on the upward departure the government’s response was not considered “advocacy” but rather it was considered an “assessment of the law and the relevant facts that would support the application of the enhancement.” As a result, the Court of Appeals decided the government had not crossed the line.

Third, the Court of Appeals held that the district court did not violate the ex post facto clause when it upwardly departed five levels based on a 2009 amendment to the Sentencing Guidelines (Larkin committed the offense in 2002 and was sentenced in 2009). The district court found the 2002 Guidelines did not consider the severity of Larkin’s conduct and therefore departed upward by 5 levels under the 2009 Guidelines, § 5K2.0. The district court did so citing the fact that the 2009 guideline specifically contemplated enhancements for the identified conduct. Yet, while the Court of Appeals held that direct application of an amended guideline to conduct that occurred prior to the amendment offends the ex post facto clause, “analogizing” to the amendment does not.

Fourth, the Court of Appeals held that Larkin’s sentence was reasonable. The bulk of Larkin’s argument in this regard centered on the disparity in sentences between she and her co-defendant who received the same sentence despite the fact that she provided substantial assistance. Finding no procedural errors, the Court cited Gall, in holding that, although the appellate court might “reasonably have concluded that a different sentence was appropriate” that is “insufficient to justify reversal.”

Case Remanded for Resentencing Due to Imposition of “General Sentence”

In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.

Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U.S. State Department to obtain a visa.

At the sentencing hearing, the district court sustained the government’s objection to the Presentence Report and added two offense levels following testimony that some of the offenses included a second victim. The district court then imposed a general sentence on all counts, but did not identify a sentence for each count, along with an order for restitution but no fine. After the government indicated an inability to calculate the restitution, the court changed the restitution order to a fine.

The Defendant appealed arguing the sentence was procedurally and substantively unreasonable. The Third Circuit applied a two-step process: (1) addressing procedural errors by reviewing facts for clear error and applied a de novo review of legal rulings; and (2) addressing substantive reasonableness using an abuse of discretion standard by looking at the "totality of circumstances". Errors not raised at trial were subject to "plain error review."

Ward argued the trial court erred procedurally by finding that a second victim was involved. Applying U.S.S.G. § 2G2.1 and relevant conduct to the facts, the Third Circuit found no error in adding the two-level adjustment for a second victim.

The Third Circuit found that converting restitution into a fine was in error because of the manner in which it was done; no analysis was made by the district court explaining why a fine would be appropriate. Unfortunately this error did not result in a "manifest injustice" so there was no plain error.

However, the Third Circuit held that under § 5G1.2 and Application Note 1, sentencing courts must impose a sentence on each count. Failure to do so is plain error affecting the defendant’s substantial rights and resulting in "manifest injustice" because it doesn’t allow the defendant or appellate courts to determine whether the sentence was legal as to particular counts. The sentence was therefore vacated and the case remanded for resentencing.

Interior Dog Sniff of Open Car Not Illegal Warrantless Search

In United States v. Pierce, No. 09-3865 (3d Cir., October 1, 2010), the defendant was stopped by a Delaware State trooper for speeding. According to the trooper, the defendant's responses to his questions led the trooper to remove the defendant from the vehicle. As the defendant complied with the trooper's command, he left the front driver's side door open. At some point, the trooper requested that a narcotics dog conduct a K-9 examination of the car. As the narcotics dog and its handler circled the vehicle, the dog alerted when he reached the front passenger side door. When the dog and its handler reached the driver's side of the car, the dog immediately jumped into the driver's seat through the open door. The dog intently sniffed the glove box and air vents. In response to the dog's alert, the trooper searched the glove box and discovered approximately one kilogram of cocaine and over $20,000 in cash.

Citing the Eighth and Tenth Circuits, the Third Circuit determined that an interior dog sniff is not violative of the Fourth Amendment if the dog's actions are instinctive, and not directed, facilitated or encouraged by its handler. The defendant argued that the dog's sniffs of the interior of the car constituted a Fourth Amendment search because the dog's handler facilitated his entry into the vehicle. However, after a review of the record, which included a videotape of the traffic stop, the Court concluded that the dog acted instinctively and without facilitation by its handler. The Court ultimately ruled that the dog's interior sniff at issue was not a search under the Fourth Amendment, but merely a natural migration from its exterior sniff. The Court also noted that the search would have been deemed permissible because it is well settled that a dog's positive alert during an exterior sniff of a vehicle establishes the probable cause necessary to search the interior of the car.

PWID is Lesser-Included Offense of PWID Within 1000 Feet of School

In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant's vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered marijuana from the vehicle.

The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.

One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.

CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable

U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.

Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.

Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.

The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”

Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”

Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.

Circuit Applies Skilling, Reverses Honest Services Conviction

In United States v. Riley, 2010 WL 3584066 (3d. Cir. Sept. 16, 2010), the Court held that the district court’s instruction to the jury that honest services fraud did not require scheme to defraud another to obtain money or property, and could instead be based on violation of duty of honest, faithful, and disinterested service, was plainly erroneous. Riley is the Third Circuit’s first application of the Supreme Court’s recent decision in Skilling v. United States, --- U.S. ----, 130 S.Ct. 2896 (2010), holding that to remain within constitutional limitations, the honest services statute at § 1346 is limited to “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”

Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of conspiracy to defraud the public of Defendant James's honest services in violation of 18 U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371. At trial, the District Court instructed the jury that honest services fraud did not require a scheme to defraud another to obtain money or property, and could instead be based on a violation of the duty of honest, faithful, and disinterested service. The Circuit here reversed.

The Court rejected defendants’ arguments that (1) the evidence in support of the honest services charge had an improper spillover effect; (2) the evidence was insufficient to prove “scheme to defraud”; and (3) the district court abused its discretion in not severing the charges.

Circuit Affirms Inventory Search into Closed Containers

In United States v. Mundy, 2010 WL 3547435 (3d. Cir. Sept. 14, 2010), the court held that (1) the city police department's vehicle stop and impoundment guidelines provided sufficiently standardized criteria regulating scope of permissible inventory search, including searches of closed containers; (2) the officer's reliance on the guidelines was not a pretext for an investigatory search of vehicle.

Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit and a gray plastic bag containing a closed shoebox. The officer removed the shoebox and opened it. Inside, he found a brown paper lunch bag and two clear plastic zip-locked bags filled with a substance that appeared to be cocaine. Inside the paper lunch bag were four more clear plastic zip-locked bags, also containing a substance that appeared to be cocaine. The officer replaced the items, closed the trunk of the vehicle, placed Mundy under arrest, and recovered $1,107 in cash from his person. The officers then notified narcotics agents. They did not complete a Towing Report listing the items found during the search.

At the hearing on Mundy’s motion to suppress, the officer testified that he found the cocaine during a routine inventory search of Mundy's car. Philadelphia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from claims of missing property and damage. Mundy argued that the officers did not have probable cause to search the vehicle, and that the inventory search policy did not sufficiently regulate the officers' discretion with respect to closed containers found in the vehicle. The District Court denied the motion to suppress, concluding that the search was conducted pursuant to a valid inventory search in accordance with departmental policy.

The Third Circuit affirmed, holding that the City police department's vehicle stop and impoundment guidelines, which implemented impoundment provisions of state Vehicle Code, provided sufficiently standardized criteria regulating the scope of inventory searches of automobiles, including closed containers found inside, notwithstanding that the policy did not specifically mention closed containers. The standardized criteria could adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or equivalent terms because the policy explicitly set out its objectives to protect owner's property and shield officers from claims of loss or damage, and sufficiently regulated the scope of the search.

Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo

In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703.

In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.

On appeal, the Government argues that the Act does not require it to demonstrate Rule 41 probable cause, but rather, under Sec. 2703(d), only “specific and articulable facts” demonstrating reasonable grounds to believe that the contents of the data “are relevant and material to an ongoing criminal investigation.” The Third Circuit held while the Act permits the Magistrate Judge to issue a disclosure order without a warrant showing probable cause, it also gives the Magistrate Judge the option to require a showing of probable cause before issuing a disclosure order.

Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.

United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses. The most significant legal challenge involved a willful blindness jury instruction.

Stadtmauer argued that the Supreme Court’s opinion in Cheek v. United States, 498 U.S. 192 (1991), precluded a willful blindness instruction. Cheek holds that criminal tax liability does not attach to a person who, in good faith, is ignorant of a legal duty, misunderstands that legal duty, or believes that such a legal duty does not exist. In accord with several other circuits, the Third Circuit concluded that a willful blindness instruction does not run afoul of Cheek, because where the evidence supports a finding that a defendant intentionally insulated himself from knowledge of his tax obligations, the defendant cannot claim good faith ignorance.

In addition, Stadtmauer also challenged as an abuse of discretion the District Court ‘s admitting lay testimony by his company’s accountant about Stadtmauer’s knowing that the tax returns were false. Specifically, this involved Staudtmauer asking the accountant “whether the returns were okay to sign”, which the accountant understood to mean whether the IRS would be likely to detect the problems with the returns. The Third Circuit held that while this was a close question under Federal Rule of Evidence 701, it was not an abuse of discretion, but even if it were, the error was harmless in the context of the record as a whole.

In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

In Gov’t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant’s possession was a legal necessity.

Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm. At trial, Lewis testified that after falling asleep at George’s home, he awoke to find George sexually assaulting him. Lewis left, returning a few days later to collect some belongings. When Lewis arrived, George became enraged. He brandished a firearm, fired shots into the ground, and ordered Lewis to get into the passenger seat of George’s car. While George was driving, he began insulting George and jabbing the gun into his head. A struggle ensued, the gun fired several times, Lewis gained control of the gun and shot George in self-defense.

At the close of trial, the Government and Lewis submitted proposed jury instructions. Lewis specifically requested that a self-defense instruction be given on the murder charge, but not on the unlawful possession charge. The court instructed as Lewis requested. The jury acquitted Lewis for murder, but convicted for unlawful possession. The Appellate Division affirmed the conviction.

On appeal, Lewis argued that his unlawful possession charge should be vacated. Lewis argued that he possessed the gun only long enough to defend himself in the car, and therefore the court should have instructed the jury on the affirmative defense of temporary justified possession. Because this issue was being raised for the first time, the Court reviewed it for plain error.

The Third Circuit ruled that it was not plain error for the trial court to fail, sua sponte, to instruct the jury on the affirmative defense of justification. In reaching that ruling, the Court examined its decision in United States v. Paolello, 951 F.2d 537 (3d Cir. 1991). In Paolello, the court adopted a four-part test to detemine the availability of a justification defense for an unlawful possession charge. The evidence must support a jury’s conclusion that: (1) the defendant was under an unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4)there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. The Court further noted that this test must be applied restrictively, requiring a high level of proof to establish justification.

Applying the Paolello test to the record, the Court found that Lewis satisfied the first and second Paolello requirements. Discussing the third requirement, the Court agreed with Lewis that a jury could conclude that he could not have avoided the threat George posed without taking immediate possession of the gun while in the car. But the Court refined the third Paolello test to require that the defendant: (a) possess the firearm no longer than is absolutely necessary to avoid the imminent threat; and (b) must dispossess himself of the gun in an objectively reasonable manner once the threat has abated. Reviewing the record, the Court found that Lewis did not meet the third requirement because he did not immediately discard the firearm from the car, or hand the gun to police when he arrived at the police station – Lewis’s decision to discard the gun in a dumpster does not satisfy the dispossession requirement.

The Court thus concluded that under Paolello, as refined, the record evidence did not support a justified possession defense to the unlawful possession of a firearm charge. Therefore, there was no plain error in the trial court’s sua sponte failure to give the justification instruction.