General right to counsel with no temporal reference informs suspect he has a right to an attorney during questioning

In United States v. Warren, No. 10-1598 (April 21, 2011), the Third Circuit affirmed denial of a motion to suppress statements and dismissed Warren’s claim that the government breached the plea agreement.

The Court analyzed whether the Miranda warnings given to Warren informed him of his right to have counsel present during questioning. The Third Circuit looked to the recent United States Supreme Court case Florida v. Powell, 130 S.Ct. 1195 (2010), for guidance. In Powell, the officer advised the suspect he had the right “to talk to a lawyer before answering any of our questions” and“to use any of these rights at any time you want to during this interview.” The Supreme Court reasoned that the combination of these statements reasonably conveyed the requirements of Miranda: the first statement advised when the right to an attorney became effective and the catch-all clarified that the right could be used at all times.

Here, the officer told Warren:

he had the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before any questioning if you wish. Should you decide to talk to me, you can stop the questioning at any time.

The Third Circuit found the Miranda warning was valid even though there was no express reference to the right to have counsel present throughout interrogation and no catch-all statement. An unqualified declaration of the general right to counsel – with no temporal reference to when the right to counsel becomes effective or ceased – although not the “clearest possible” warning, is sufficient.

Judge Greenaway filed a dissenting opinion, finding that “the conveyance of a general right to an attorney, without a contextual notification that this right exists during questioning,” does not reasonably convey a continuing right to counsel.

The entire panel agreed that the government did not breach its plea agreement that it would not file an information to enhance Warren’s sentence, pursuant to 21 U.S.C. § 851, by arguing for a different Guidelines range. The Court explained that no § 851 was filed so it was irrelevant that the government calculated and argued for a Guidelines range based on crack-cocaine while Warren argued for a range based on powder cocaine.

Sentencing enhancement for sadistic, masochistic, or violent materials and two special conditions of supervised release upheld

In United States v. Maurer, No. 10-3049 (April 22, 2011) the Third Circuit affirmed the procedural reasonableness of a 60-month sentence for possession of child pornography and two special conditions of supervised release.

The Court rejected Maurer’s challenge to application of a four-level sentencing enhancement for material “that portrays sadistic or masochistic conduct or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4), and held that a sentencing court “need only find, by a preponderance of the evidence, that the image depicts sexual activity involving a prepubescent minor that would have caused pain to the minor.”

The Court found that the application of U.S.S.G. § 2G2.2(b)(4) did not constitute an abuse of discretion, nor was the enhancement unconstitutionally vague or overly broad. The ordinary meaning of the terms sadism and masochism provides courts with sufficient guidance. Although violence can be interpreted broadly, courts must construe its meaning narrowly because it follows “sadistic and masochistic conduct.” Despite the narrow definitions, the Court explained that the application of § 2G2.2(b)(4) is not limited to circumstances where pain is the result of sexual penetration by an adult or bondage of the child. Citing cases from other circuits, the Court gave the examples of other acts which would justify the enhancement: sexual gratification which is purposefully degrading or humiliating or conduct which causes mental suffering or psychological or emotional injury. Expert testimony is not required for the court to make the finding. Finally, it is a strict liability enhancement: the sentencing court need not determine the defendant intended to possess the images or actually derived pleasure from viewing them. Applying this standard, the Court found the sentencing court made the appropriate findings.

Maurer also challenged two special conditions to be imposed over his five years of supervised release: (1) a prohibition on internet use, unless specifically approved by Probation; and (2) a prohibition on “any contact with children of either sex, under the age of 18, without the expressed approval” of Probation. The Court found that the nature of Maurer’s computer use, the character and size of his collection, and his stated sexual interest in minors justified both conditions.

As for internet use, the Court considered the length and coverage of the restriction, and underlying conduct. Although Maurer only pled guilty to possession, his internet use went beyond simply obtaining child pornography. He did not sexually exploit a minor, but was willing to use the internet to facilitate a sexual encounter and told a supposed 18-year old boy that he was interested in meeting younger boys. Thus, his use triggered concerns of predation. Also, the restriction was sufficiently narrow because it did not restrict all computer – just internet – access and a five-year restriction fell comfortably within the range of restrictions previously upheld.

Similarly, the facts showed that Maurer was a risk to children such that restriction on “any contact” with minors was appropriate, regardless of his offense of conviction. The “any contact” restriction was permissibly cabined to Probation’s ministerial role, unlike previously invalidated restrictions (1) to “follow the directions [of Probation] regarding any contact with children,” or (2) on “any contact” with children, imposed for a lifetime, on a defendant who had young children.

Sentence with Large Downward Variance Reversed on Procedural Unreasonableness

United States v. Negroni, 2011 WL 1125854 (Mar. 29, 2011). This case involved a massive fraud scheme in which the perpetrators submitted false claims in securities class action settlements. The defendants here – Hall & Negroni – submitted false claims totaling at least $1 million of the more than $40 million involved in the scheme. Both entered guilty pleas to mail fraud and wire fraud (Hall also pled guilty to tax evasion). The district court sentenced Hall to 15 months’ imprisonment and Negroni to 5 years’ probation. The government had sought much higher sentences.

For Hall, the government had sought a Guidelines enhancement of six levels because the scheme allegedly involved more than 250 victims. According to the Court, the district court rejected the enhancement with little explanation, commenting only that it was reluctant to accept the cooperating witness’s testimony without corroboration. Without the enhancement, the range was 46-57 months. The government sought a high-end sentence, but the district court varied downward.

For Negroni, the range, including the enhancement, was 70-87 months. Negroni asked for a variance or departure based on diminished capacity, and an unhealthy dependence developed on the leader of the scheme during his unguided, unhappy youth. He presented letters describing his unfortunate history and reports by a psychologist and his treating therapist, In sentencing Negroni to probation (with some home confinement), the district court cited the abuse and neglect Negroni suffered, his attachment to the leader of the scheme, the psychologist’s report, his stable family life, his treatment, his acceptance of responsibility, and his ability to pay restitution.

The government objected to both sentences as unreasonable. Although the government labeled its challenges on appeal as “substantive” challenges, the Court held that it had not waived challenges to the procedural reasonableness of the sentence because many of the arguments the government presented in its brief fell squarely within the definition of procedural error.

The Court then held that the district court failed to provide adequate explanation for its rejection of the enhancement for 250 or more victims. The Court felt that the government had presented evidence in support of the enhancement, although the defense had identified weaknesses with that evidence. Because the district court did not give its reasons for rejecting the enhancement, the Court was unable to review that decision.

With regard to Negroni’s sentence, the Court held that the district court failed to provide sufficient explanation for variance from a range of 70 to 87 months to probation and home confinement. Although the district court individually identified each statutory sentencing factor, it did not discuss all of the factors, and did not explain how the factors it did discuss justified the extraordinary downward variance. In reversing, the Circuit expressed its “doubt” that the sentence could be justified, in view of the Sentencing Commission’s express concern with the under-punishment of white-collar crime.

A petition for rehearing has been filed and is available at: http://www.fd.org/pdf_lib/3Rehear-Negroni_e041211.pdf.

SORNA - Failure to Register Conviction Upheld

In United States v. Pendleton, 2011 WL 1366382 (Apr. 12, 2011), the Circuit rejected defendant’s challenge to the sufficiency of the evidence supporting his conviction for failure to register as a sex offender. The Court’s decision is based on the fact that defendant had stated numerous times to government officials and others—including during the time period alleged in the indictment—that he actually lived at the charged address, not only that it was his mailing address, regardless of fact that witness who lived in the house testified defendant had never stayed there. The court declined to reach issue of whether a “mail drop” address would have been sufficient to charge under the statute. The court likewise rejected a Commerce Clause challenge, and a Due Process and fair notice challenge based on the fact that Delaware law did not require Pendleton to register.

Dismissal of RICO Indictment Reversed - Enterprise and Pattern of Activity Sufficiently Alleged

In United States v. Bergrin, 2011 WL 1366388 (Apr. 12, 2011), the Government appealed dismissal of RICO indictment which district court held did not adequately allege a racketeering “enterprise” or a “pattern of racketeering activity.” Following a thorough review of RICO definitions, the Circuit disagreed and held the indictment sufficient, finding that the district court principally erred in assessing the government’s ability to prove the allegations rather than assuming all alleged facts as true as required at the motion to dismiss stage.

Bergrin, defense attorney and former federal prosecutor, was charged with heading a criminal enterprise from 2003 through 2009 involving numerous offenses and co-defendants connected through an “association-in-fact” enterprise called the Bergrin Law Enterprise (BLE) which included four corporations —the law firm Pope, Bergrin & Verdesco, PA (PB & V); the Law Office of Paul W. Bergrin, PC; Premium Realty Investment Corp., Inc.; and Isabella's International Restaurant, Inc.

The indictment alleged that Bergrin was the leader of the BLE and played an instrumental role in six criminal schemes, with co-defendants' each having significant involvement in at least one scheme and little or no involvement in others. The six schemes, listed as “racketeering acts,” included: arranging for the murders of government witness on behalf of clients, bribing a government witness, trafficking in kilogram quantities of cocaine, running a prostitution scheme, and fraudulent real estate transfers.

The indictment also alleged purposes of the Enterprise, including: providing the BLE with an expanding base of clients for legal and illegal services; generating, preserving and protecting the BLE’s profits and client base through those alleged acts; protecting Bergrin’s status as a licensed attorney; enhancing his reputation as a criminal defense attorney; promoting the BLE’s activities; enriching members; and concealing the criminal activities of the BLE and its members and associates from detection and prosecution.

Bergrin and his co-defendants moved to dismiss the RICO and racketeering-based counts. The district court granted the motions, finding that the indictment did not adequately allege a racketeering “enterprise” or a “pattern of racketeering activity.”

The Circuit reversed, first reviewing the definitions of “enterprise,” “employed or associated with,” “pattern of racketeering activity,” and “racketeering activity,” and the broad reach of the statute. Pointing out the narrow analysis permitted by a motion to dismiss – whether the allegations, assumed to be true, suffice to charge an offense – the court found sufficient allegations to establish both a pattern of racketeering activity and an enterprise, including purpose, relationships and longevity. In granting the motion to dismiss, the district court erred in finding that the indictment failed to allege a common purpose among the predicate acts by weighing whether the government could prove the allegations. Also, there is no requirement that the predicate acts be similar in order to establish a “pattern,”or that an enterprise have structure, defined leadership or organization.

Third Circuit invalidates robbery conviction based on Brady violations and ineffective assistance of counsel

In Breakiron v. Horn, (April 18, 2011), after the District Court had invalidated Breakiron's murder conviction and death sentence, the Third Circuit found three reasons to invalidate the robbery conviction: (1) the Brady violations that had caused the District Court to invalidate the murder conviction were also material to the robbery conviction; (2) trial counsel had been constitutionally ineffective in failing to request the lesser-included offense of theft; and (3) trial counsel had been constitutionally ineffective in failing to take corrective action when a venire panel member was exposed to evidence about Breakiron’s propensity to commit robberies and then served on the jury.

Mark Breakiron killed the bartender of a bar in Uniontown, Pennsylvania, and stole money from the bar. He was charged with first-degree murder and robbery. At trial, Breakiron argued, based on a voluntary intoxication/diminished capacity defense, that he did not have the specific intent to kill and so was only guilty of third-degree murder. In addition, he argued he decided to steal the money after the attack was complete, so he was guilty of theft not robbery. Ellis Price was incarcerated with Breakiron before his trial and testified to statements Breakiron made to him that suggested the attack was premeditated. The jury convicted Breakiron of first-degree murder and robbery and found as an aggravating factor that Breakiron committed the murder while committing a felony (robbery). Breakiron was sentenced to death.

The Pennsylvania Supreme Court affirmed. Breakiron filed a petition for post-conviction relief, which was denied after the court held an evidentiary hearing. The Pennsylvania Supreme Court affirmed. Breakiron filed a federal habeas petition. Breakiron also filed a second state petition, raising Brady issues, which the state court dismissed as untimely. The District Court (W.D.Pa.) found a Brady violation regarding impeachment evidence about a key witness, Price. The Brady violations were failure to disclose that Price (1) had been convicted of an impeachable offense, (2) had sought a deal in exchange for his testimony against Breakiron, and (3) was a suspect in an unrelated criminal investigation pending at that time for which he was never charged. The District Court invalidated Breakiron’s murder conviction and death sentence, but not the robbery conviction after concluding that Price’s testimony was not material to the robbery conviction. The government did not appeal, so only the robbery conviction was before the Third Circuit.

Within the deferential strictures of a review under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Third Circuit invalidated Breakiron’s robbery conviction. The Third Circuit found that Price’s testimony was material to the robbery conviction because (1) it suggested that the entire incident was a premeditated and intentional plan, and (2) it undercut Breakiron’s credibility, which was crucial for his theory of defense.

The Third Circuit found that trial counsel had been constitutionally ineffective in failing to request a charge for the lesser-included offense of theft where the trial strategy had been to concede that Breakiron had committed a theft but not a robbery. Thus, where Breakiron was guilty of some offense, and the jury instructions only presented the jury with an all-or-nothing choice between robbery and outright acquittal, there was a substantial risk that the jury would convict him of an unproven offense (robbery).

The Third Circuit found that counsel was constitutionally ineffective for failing to take corrective action at voir dire. A member of the jury that convicted Breakiron had heard another venire member state he knew Breakiron and that Breakiron “used to do a lot of robberies.” The Third Circuit expressed concern at the juror’s exposure to propensity evidence which is so patently prejudicial that it is not necessarily cured by a limiting instruction. Even worse, the propensity evidence here was about the very crime at issue, robbery. The Third Circuit determined there was no reasonable basis for any belief in the impartiality or fairness of this juror. The Third Circuit found prejudice using an objective standard: “Whether there is a reasonable probability that a juror who had not been exposed to that statement would have voted to acquit Breakiron of robbery.” The Court found there was a reasonable probability that corrective action by counsel would have produced a different result.

Court Emphasizes the Strict Standard of Relief under Writ of Error Coram Nobis.

Following his conviction for possession with intent to distribute 50 grams of cocaine base, Petitioner Gary Rhines continued to challenge his conviction and life sentence. After his conviction and sentence were affirmed by the Third Circuit, his writ of certiorari was denied by the Supreme Court, his motion under 28 U.S.C. §2255 was denied, and his application to file a second and successive §2255 motion were rejected, Rhine filed a writ of error coram nobis. In the writ he claimed that the arresting officers fabricated evidence and gave false testimony at trial. The basis for his claim was the 2007 indictment of the officers on charges that included tampering with records and perjury. Rhines additionally argued ineffective assistance of counsel for failure to discover the indictments against the officers. The district court dismissed the petition. In United States v. Rhines, 10-4077, the Third Circuit summarily affirmed the district court’s decision because the appeal did not present a substantial question.

In affirming the district court’s dismissal, the Third Circuit noted that relief under coram nobis is an “extraordinary remedy,” traditionally reserved for petitioners that are no longer in federal custody. When another avenue of relief is available, a court will not issue a writ of error coram nobis. Moreover, in order to obtain relief there must exist a fundamental error that essentially renders the trial invalid.

Specific to Rhines’ case, he did not qualify for coram nobis relief because he was still incarcerated when he filed the writ. Additionally, his petition did not present a fundamental error that would make his trial invalid. Rhines’ position that he was unable to impeach the officers at trial was unavailing. The officers in question were indicted five years after his conviction and there was no evidence suggesting that the tampered records related to Rhines’ case. In short, pure speculation is insufficient to carry the burden for relief. Finally, the Third Circuit noted that Rhines raised the same issues in his second §2255 motion, and that the Court had rejected his application for certificate of appealability. Failure to meet the standard for a second §2255 motion does not entitle a defendant to bring a writ of error coram nobis.

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.