In United States v. Dixon, No. 10-4300, the Third Circuit held that the Fair Sentencing Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010) (“FSA”), signed into law on August 3, 2010, applies to all defendants sentenced after that date, regardless of when the criminal conduct occurred. The FSA reduced the crack/powder ratio to approximately 18:1, thus triggering a mandatory minimum sentence of 5 years for defendants convicted of possessing 28 grams of cocaine and 10years for possessing more than 280 grams. The Anti-Drug Abuse Act of 1986 (“1986 Act”) previously mandated 5 and 10 year mandatory minimum sentences for possession of more than 5 and 50 grams of crack, respectively. In passing the FSA, Congress sought to ameliorate the disparities between crack and powder cocaine offenders. Dixon was one such defendant whose criminal conduct predated the FSA, but whom was sentenced after its passage.
Section 8 of the FSA gave the United States Sentencing Commission emergency authority to promulgate new drug guidelines compliant with the Act. The Commission responded by promulgating new, FSA-compliant guidelines implementing the 18:1 ratio, which took effect on November 1, 2010. Section 10 of the Act also directed the Commission to study and submit a report to Congress outlining the impact of the FSA on federal sentencing law. Later, on June 30, 2011, the Commission decided to apply the new guidelines retroactively to defendants sentenced before the FSA was passed. But, as the Third Circuit explained in a footnote, this has no bearing on the applicability of statutory mandatory minimum sentences. It should also be noted that after oral argument, the government changed its position on the issue and submitted a Rule 28(j) letter indicating that it now supports application of the FSA to defendants in Dixon’s position.
The main issue was whether the General Saving Statute, 1 U.S.C. § 109, precludes application of the FSA to defendants sentenced after its passage. Under the Saving Statute, the mandatory minimum sentences in the 1986 Act remain in force unless the repealing Act expressly provides otherwise. The FSA does not mention retroactivity in its text. But the Supreme Court has explained that the Saving Statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908) (emphasis in Dixon). And in Dixon, the Third Circuit held that the necessary or fair implication of the FSA’s text is that Congress meant for it to apply to defendants sentenced after its passage, for three reasons.
First, Section 8's emergency directive to the Commission to “make such conforming amendments” to the guidelines that would “achieve consistency with other guideline provisions and applicable law” evinces Congress’s intent for the new mandatory minimum sentences to apply to defendants sentenced after the FSA’s passage. The “applicable law” is the FSA. Further, the Sentencing Reform Act of 1984 directs courts to sentence defendants under the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). So Congress knew the amended guidelines would be in effect when defendants in Dixon’s position were sentenced. Section 8's goal of achieving consistency between the guidelines and the statute shows its intent for the new mandatory minimums to apply. The Court reasoned that it would be nonsensical to apply emergency guidelines, while at the same time imposing mandatory minimums that diminish the impact of those new guidelines. Indeed, the old mandatory minimums would still control in many cases. Congress’s urgency in directing the Commission to promulgate emergency guidelines also demonstrates its intent for the new mandatory minimums to apply going forward. Finally, the Court reasoned, “[r]efusing to apply the FSA to defendants like Dixon would lead to a troubling result in which the Act would have little real effect for years, until the statute of limitations runs on pre-August 3, 2010 conduct.”
Second, Congress’s directive to the Commission in Section 10 of the FSA to study and report on the effects of the FSA further evinces its intent. “If the FSA’s provisions only apply to post-August 3, 2010 conduct, defendants sentenced in the coming years will be subject to the mandatory minimums in the 1986 Act. Consequently, during the time period in which the Sentencing Commission is supposed to produce a report on the effects of the FSA, the Act often will be inapplicable.” Such a report would be “incomplete” and “incomprehensible,” such that Congress must have meant for the new mandatory minimums to apply to defendants sentenced after the FSA’s passage.
Finally, the Third Circuit found the FSA’s title and stated purpose compelling. The Act was passed to restore fairness to federal sentencing. Congress simply could not have meant for district courts to continue imposing sentences that are unfair over the next five years until the statute of limitations runs on all crack offenses occurring before August 3, 2010. Accordingly, the FSA’s “plain import” directly conflicts with an earlier statute - the Saving Statute’s preservation of the old mandatory minimum sentences from the 1986 Act. As such, the FSA controls and all defendants sentenced after the FSA’s passage are subject to its reduced mandatory minimum sentences, regardless of when their criminal conduct was committed.
Monday, August 22, 2011
Wednesday, August 17, 2011
Conviction Vacated for Erroneous Instruction on Intent
In United States v. Waller, No. 10-1321 (Aug. 16, 2011), the Court holds that it was reversible Doyle error for a district court to instruct the jury that it could consider, among other things, "any statements made or omitted by the defendant” in deciding whether he had the intent to distribute a controlled substance.
Mr. Waller was found in possession of 52 stamp bags of heroin marked “Shoot, Shoot Them,” bundled into four groups of ten and one group of twelve. At trial, there was no dispute as to possession, but only as to whether the heroin was intended for personal use or distribution. There was circumstantial evidence from which the parties urged opposite inferences: for example, the defendant's possession of a gun but no cash. There was no direct evidence bearing on intent. The Court holds that the instruction permitting consideration of statements “omitted by the defendant” improperly invited the jury to infer intent from the defendant’s post-arrest, post-Miranda warnings silence, in violation of his right to due process and the rule announced in Doyle v. Ohio, 426 U.S. 610 (1976).
Under the circumstances, the government could not carry its “decidedly heavy burden” to show that the constitutional error was harmless. “It is rather easy to see how the erroneous instruction might, in fact, have contributed to the jury’s verdict: in the face of equivocal evidence of Waller’s intent, the jurors were invited by the District Court to consider the statements that he failed to make.”
The opinion includes a discussion distinguishing the “statements made or omitted” language from the Third Circuit’s Pattern Instruction. The Pattern Instruction directs the jury that it may consider “what the defendant said, what the defendant did and failed to do, how the defendant acted, and all other facts and circumstances….” The Court reads this model charge to permit “the jury to take into account only those statements actually made by the defendant, as well as the defendant’s failures to act,” but “does not invite the jury to consider statements omitted by the defendant, or otherwise comment on the defendant’s failure to speak.” (The emphases are the Court’s.)
Mr. Waller was found in possession of 52 stamp bags of heroin marked “Shoot, Shoot Them,” bundled into four groups of ten and one group of twelve. At trial, there was no dispute as to possession, but only as to whether the heroin was intended for personal use or distribution. There was circumstantial evidence from which the parties urged opposite inferences: for example, the defendant's possession of a gun but no cash. There was no direct evidence bearing on intent. The Court holds that the instruction permitting consideration of statements “omitted by the defendant” improperly invited the jury to infer intent from the defendant’s post-arrest, post-Miranda warnings silence, in violation of his right to due process and the rule announced in Doyle v. Ohio, 426 U.S. 610 (1976).
Under the circumstances, the government could not carry its “decidedly heavy burden” to show that the constitutional error was harmless. “It is rather easy to see how the erroneous instruction might, in fact, have contributed to the jury’s verdict: in the face of equivocal evidence of Waller’s intent, the jurors were invited by the District Court to consider the statements that he failed to make.”
The opinion includes a discussion distinguishing the “statements made or omitted” language from the Third Circuit’s Pattern Instruction. The Pattern Instruction directs the jury that it may consider “what the defendant said, what the defendant did and failed to do, how the defendant acted, and all other facts and circumstances….” The Court reads this model charge to permit “the jury to take into account only those statements actually made by the defendant, as well as the defendant’s failures to act,” but “does not invite the jury to consider statements omitted by the defendant, or otherwise comment on the defendant’s failure to speak.” (The emphases are the Court’s.)
Tuesday, August 16, 2011
Officer's Reliance on Warrant Insufficient to Support Good Faith Exception to Exclusionary Rule
In People of the Virgin Islands v. Tydel John, No. 09-4185 (Aug. 15, 2011), the Court holds 2-1 that the good faith exception to the exclusionary rule does not apply — and that evidence must therefore be suppressed — when an officer obtains and executes a warrant for child pornography by means of an affidavit representing that people who commit contact sex offenses against children customarily keep evidence of such crimes, including “photographs,” in their homes.
The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”
The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”
Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.
In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.
The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”
The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”
Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.
In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.
Evidence Insufficient to Sustain Conviction for Conspiracy to Transport Firearms
In United States v. Tyson, No. 09-3487 (3d Cir, Aug. 3, 2011) , the defendant was found guilty by jury of multiple firearms-related offenses, under both federal and Virgin Islands law. Specifically, the federal counts charged conspiracy to transport firearms from Tennessee to the Virgin Islands, and related gun trafficking offenses. However, the District Court granted the defendant's motion for judgement of acquittal as to the federal counts.
The Third Circuit concluded that, while the evidence was sufficient to support the defendant’s conviction for transporting and dealing firearms without a license, the evidence was insufficient to sustain his conviction for conspiracy to transport firearms. Explicitly rejecting the “rule of consistency” in multi-defendant conspiracy trials, the court concluded instead that the evidence simply failed to prove an illegal agreement existed between the defendant and the only co-conspirator identified by the government. The court reasoned that the government’s evidence of “unusual and suspicious activity” showed only that the defendant and the alleged co-conspirator engaged in “parallel conduct,” not the requisite concerted action to further a common goal.
The Third Circuit also upheld the defendant’s conviction for transferring a firearm with intent to commit a crime. The court noted that mens rea requirement of 18 U.S.C. § 924(b) may be satisfied by showing that either the defendant himself intended to commit a crime with the firearm, or he knew or had reasonable cause to believe a crime would be committed with the firearm. Citing United States v. McBane, 433 F3d. 344, 349 n.9 (3d Cir. 2005), the court interpreted the phrase “reasonable cause to believe” to require proof that, under the factual circumstances of the case, either a reasonable person would have believed or it would have been reasonable for the defendant himself to believe. The Third Circuit concluded that the defendant’s overall sale process sufficiently proved that he had reasonable cause to believe that a crime would be committed with the firearms he transferred from Tennessee to the Virgin Islands.
The Third Circuit concluded that, while the evidence was sufficient to support the defendant’s conviction for transporting and dealing firearms without a license, the evidence was insufficient to sustain his conviction for conspiracy to transport firearms. Explicitly rejecting the “rule of consistency” in multi-defendant conspiracy trials, the court concluded instead that the evidence simply failed to prove an illegal agreement existed between the defendant and the only co-conspirator identified by the government. The court reasoned that the government’s evidence of “unusual and suspicious activity” showed only that the defendant and the alleged co-conspirator engaged in “parallel conduct,” not the requisite concerted action to further a common goal.
The Third Circuit also upheld the defendant’s conviction for transferring a firearm with intent to commit a crime. The court noted that mens rea requirement of 18 U.S.C. § 924(b) may be satisfied by showing that either the defendant himself intended to commit a crime with the firearm, or he knew or had reasonable cause to believe a crime would be committed with the firearm. Citing United States v. McBane, 433 F3d. 344, 349 n.9 (3d Cir. 2005), the court interpreted the phrase “reasonable cause to believe” to require proof that, under the factual circumstances of the case, either a reasonable person would have believed or it would have been reasonable for the defendant himself to believe. The Third Circuit concluded that the defendant’s overall sale process sufficiently proved that he had reasonable cause to believe that a crime would be committed with the firearms he transferred from Tennessee to the Virgin Islands.
No Reasonable Expectation of Privacy in Common Area of Multi-Unit Dwelling
In United States v. Correa, No. 10-2199 (3d Cir., Aug. 2, 2011) , law enforcement officials executed arrest warrants for two associates an escaped inmate at a multi-unit dwelling. When the officers arrived at the building, the exterior front door was locked. As a result, one of the officers climbed through a partially opened window and unlocked the door for his colleagues. Once inside, the officers encountered the two individuals they initially sought as well as the defendant in the common stairwell leading to the basement. During the search incident to his arrest, the defendant alerted his arresting officer that he possessed a firearm. The defendant challenged his arrest in the common area of the multi-unit dwelling as the fruit of an unlawful entrance and search, and he sought the suppression of the firearm and his subsequent statement. The Third Circuit disagreed, extending its ruling in United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992), to rule that a resident of a multi-unit dwelling has no objectively reasonable expectation of privacy in the common areas of the dwelling, regardless of whether the exterior door is regularly locked or unlocked. The court reasoned that no objectively reasonable expectation of privacy can exist in the common area of multi-unit dwelling where all of the residents are permitted to access, as well as their guests. The court also determined that a locked exterior door does not serve to protect the privacy interests of the residents, but rather serves to provide them with security. The court ultimately ruled that, as the defendant had no objectively reasonable expectation of privacy in the common area of the multi-unit dwelling, he lacked standing to challenge the law enforcement officials' entrance and search. Therefore, no Fourth Amendment violation occurred.
Friday, July 15, 2011
Language Barrier May Qualify as an Extraordinary Circumstance Warranting Equitable Tolling of AEDPA’s One Year Statute of Limitations.
In Pabon v. Superintendent S.C.I. Mahanoy, No. 08-1536, Petitioner Angel Pabon challenged the denial of his habeas petition, as out of time. Following the denial of his motions for post conviction relief at the state level, Pabon filed a pro se habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §2254. The habeas petition was based on a violation of the Confrontation Clause. Specifically, the state trial court admitted into evidence the confession of one of the codefendants, who did not testify at trial. The District Court dismissed Pabon’s petition because it was not timely under AEDPA’s one year statute of limitations, as set forth in 28 U.S.C. §2244. Conceding that his petition was out of time, Pabon argued that his petition should still be considered under the doctrine of equitable tolling, an argument the District Court rejected. The Third Circuit granted a certificate of appealablity (COA) to determine the question of timeliness and equitable tolling.
In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.
The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.
In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.
The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.
Thursday, June 09, 2011
Court Adopts Factors to Determine Exceptions to Waiver of Issues Not Raised in Opening Brief, Remands for More Narrowly Tailored Internet Restrictions
In United States v. Albertson, No. 09-1049, the Third Circuit considered yet again whether a defendant’s supervised release term and special conditions were reasonable under 18 U.S.C. § 3553(a) as incorporated by 18 U.S.C. § 3583(d)(1). Albertson pled to one count of receiving child pornography and received a sentence of 60 months in prison (the mandatory minimum term of imprisonment), along with a 20 year supervised release tail with 8 special conditions. Albertson challenged the length of his supervised release term as well as special conditions that: (1) banned him from associating with children under the age of 18 (other than his children) without his probation officer’s prior approval, (2) banned him from using a computer with internet access without prior written approval of the probation department, and (3) required him to submit to an initial inspection and subsequent inspections of his computer and to allow probation to install monitoring or filtering software onto his computer.
The Court first addressed waiver, because Albertson only challenged the length of his supervised release term in his initial brief. His reason for only raising the challenges to the special conditions in his reply brief was that the Third Circuit issued its opinion in United States v. Miller, 594 F.3d 172 (3d Cir. 2010) a day after his initial brief was filed. The Court noted that normally issues are waived if not raised in the appellant’s opening brief, but there are exceptions in extraordinary circumstances. Relying on the First Circuit’s opinion in In re Kane, 254 F.3d 325, 331 (1st Cir. 2001), the court adopted factors to determine what constitutes extraordinary circumstances. The factors are: (1) whether there is some excuse for the failure to raise the issue in the opening brief, (2) how far the opposing party would be prejudiced, and (3) whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system. Under these factors, the Third Circuit found extraordinary circumstances existed even though Albertson’s reason for failing to initially raise the issue was not compelling in light of the body of case law on computer-related conditions of supervised release that existed before Miller. The most compelling factor was that ignoring overbroad internet restrictions contrary to clear Third Circuit precedent would undermine confidence in the judicial system.
The Court in Miller enunciated 3 factors relevant to assessing whether a supervised release condition is overbroad: (1) the scope of the condition with respect to its substantive breadth; (2) the duration of the condition; and (3) the severity of the defendant’s conduct - particularly whether the defendant used a computer to solicit or personally endanger children. The Albertson court added a fourth factor: the interplay between the prison time served and the term of supervised release, in light of the fact that often times district courts may find that a longer term of supervised release should follow a shorter prison term. The Court also found it relevant to consider the proportion of a supervised release restriction to the total period of restriction, including prison time.
Under these factors, the blanket ban on internet use without probation’s approval was “sweepingly broad” because Albertson never used the internet “as an instrument of harm” and because modern life is extremely difficult without access to the internet. Second, the Court found the duration of the conditions - 20 years - should be considered in light of his age. At 42 years old, Albertson’s 20-year restrictions were basically of the same length as the defendant’s lifetime restrictions in Miller (assuming an 80-year life expectancy - Miller was 60 years old when sentenced). Third, Albertson did not use the internet to actively contact or solicit contact with children. Albertson’s short incarceration period did suggest, however, that a lengthy supervised release tail was appropriate. As such, the Court upheld the 20 year supervised release term, but found the internet restriction condition overbroad and remanded to the district court to consider a more narrowly tailored internet use restriction. The Court also explained that the computer monitoring condition would be perfectly acceptable if paired with a more narrowly tailored and reasonable internet use restriction, so it remanded for reconsideration of that condition in connection with the internet use condition. Further, in light of the fact that Albertson had been charged with molesting his stepdaughter at the time of his federal sentencing (and later convicted), the Court upheld the association with minors condition.
The Court first addressed waiver, because Albertson only challenged the length of his supervised release term in his initial brief. His reason for only raising the challenges to the special conditions in his reply brief was that the Third Circuit issued its opinion in United States v. Miller, 594 F.3d 172 (3d Cir. 2010) a day after his initial brief was filed. The Court noted that normally issues are waived if not raised in the appellant’s opening brief, but there are exceptions in extraordinary circumstances. Relying on the First Circuit’s opinion in In re Kane, 254 F.3d 325, 331 (1st Cir. 2001), the court adopted factors to determine what constitutes extraordinary circumstances. The factors are: (1) whether there is some excuse for the failure to raise the issue in the opening brief, (2) how far the opposing party would be prejudiced, and (3) whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system. Under these factors, the Third Circuit found extraordinary circumstances existed even though Albertson’s reason for failing to initially raise the issue was not compelling in light of the body of case law on computer-related conditions of supervised release that existed before Miller. The most compelling factor was that ignoring overbroad internet restrictions contrary to clear Third Circuit precedent would undermine confidence in the judicial system.
The Court in Miller enunciated 3 factors relevant to assessing whether a supervised release condition is overbroad: (1) the scope of the condition with respect to its substantive breadth; (2) the duration of the condition; and (3) the severity of the defendant’s conduct - particularly whether the defendant used a computer to solicit or personally endanger children. The Albertson court added a fourth factor: the interplay between the prison time served and the term of supervised release, in light of the fact that often times district courts may find that a longer term of supervised release should follow a shorter prison term. The Court also found it relevant to consider the proportion of a supervised release restriction to the total period of restriction, including prison time.
Under these factors, the blanket ban on internet use without probation’s approval was “sweepingly broad” because Albertson never used the internet “as an instrument of harm” and because modern life is extremely difficult without access to the internet. Second, the Court found the duration of the conditions - 20 years - should be considered in light of his age. At 42 years old, Albertson’s 20-year restrictions were basically of the same length as the defendant’s lifetime restrictions in Miller (assuming an 80-year life expectancy - Miller was 60 years old when sentenced). Third, Albertson did not use the internet to actively contact or solicit contact with children. Albertson’s short incarceration period did suggest, however, that a lengthy supervised release tail was appropriate. As such, the Court upheld the 20 year supervised release term, but found the internet restriction condition overbroad and remanded to the district court to consider a more narrowly tailored internet use restriction. The Court also explained that the computer monitoring condition would be perfectly acceptable if paired with a more narrowly tailored and reasonable internet use restriction, so it remanded for reconsideration of that condition in connection with the internet use condition. Further, in light of the fact that Albertson had been charged with molesting his stepdaughter at the time of his federal sentencing (and later convicted), the Court upheld the association with minors condition.
De Novo Sentencing Applies After Court Vacates Part of Interdependent Sentence, Remand for Full Consideration of Post-Sentencing Rehabilitation
In United States v. Diaz, No. 10-3337, the Third Circuit considered whether the district court correctly resentenced the defendant on remand after one count of an interdependent sentence was vacated. Diaz was convicted of one count of possession with intent to distribute heroin and two counts of possessing a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). The Third Circuit reversed and remanded for resentencing, holding that Mr. Diaz’s double jeopardy rights were violated because a second § 924(c) count must be based on a separate predicate drug offense. On remand, the defense argued that the district court should simply reduce the sentence by 120 months - the sentence originally associated with the vacated § 924(c) count. The district court treated its original sentence as interdependent, and held that resentencing de novo was appropriate so long as the Third Circuit did not direct otherwise. The district court considered the fact that the defendant was facing one less conviction. The defense also presented evidence of Diaz’s post-sentencing rehabilitation. The district court recognized Diaz’s post sentence rehabilitation, but explained that it was not a major factor in its new sentence. Accordingly, the district court reduced Diaz’s sentence by 80 months.
On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.
The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.
On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.
The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.
Wednesday, June 08, 2011
Enhancement for Counterfeit Obligations Based on Face Value, Not Intended Loss
In United States v. Wright, No. 10-2970 (3d. Cir. June 1, 2011), the Third Circuit vacated a sentence of twenty months imprisonment and remanded for resentencing. The court recognized the facts of this case could never have been envisioned by the Sentencing Commission. Wright and a man he falsely identified as his brother attempted to sell $120,000 worth of fake U.S. currency for $60,000 to a small business owner. Wright and his "brother" told the business owner that their father was a politician and banker in Sierra Leone, who had recently been assassinated, and that he and his brother fled to the United States as refugees. They claimed to have brought with them millions of dollars in U.S. currency, that had been provided to Sierra Leone by the U.S. as aid. They claimed that the currency had been dyed black in order to prevent the use of the currency by rebels who might have intercepted it. In a meeting with the business owner, Wright and his "brother" demonstrated the process of cleaning the black papers with special solvent. After the two black papers they used for demonstration were "sloshed" in the solvent, they were revealed to be two genuine $100 bills. Distrustful of the arrangement, the small business owner notified the U.S. Secret Service. They arranged a second meeting, where the business owner told Wright that he was bringing another prospective buyer. At this time, they agreed to sell $200,000 worth of currency for $100,000. During this meeting, they again performed the demonstration, revealing two genuine $100 bills.
Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.
Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.
The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.
Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.
Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.
The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.
Thursday, May 19, 2011
Mere Presence of Firearm Not Sufficient to Warrant Four-level Enhancement under U.S.S.G § 2K2.1(b)(6)
In United States v. West, No. 09-2860 (3d Cir., April 29, 2011), the defendant challenged the four-level enhancement applied to his sentence for possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(6). He also challenged the sentencing court’s finding that a recent subsequent arrest for gun and drug possession was relevant conduct to the stolen firearm offense.
In West, the defendant was arrested on two separate occasions in 2007. During a traffic stop on February 28, 2007, police found cash, a small undetermined amount of marijuana and a gun in the glove compartment. Another firearm was discovered later in a backpack in the trunk of the car. The defendant admitted possession of the cash and marijuana but denied possession of the firearms. Police later determined that the gun found in the trunk had been stolen. On July 27, 2007, a firearm was discovered in the rented apartment of the defendant’s girlfriend during a routine fire-code inspection. An undetermined amount of cash and marijuana also were discovered during a search of the apartment. Police later determined that this gun also had been stolen. The defendant subsequently pled guilty to possession of the gun discovered in the trunk of his car in February, but refused to plead guilty to possessing any other firearms.
The District Court ruled that the defendant possessed, either actually or constructively, both the firearm discovered on the trunk of the car in February and the gun found in the apartment in July. However, the court ruled that the defendant did not possess the gun found in the glove compartment of his car. The court concluded that the close proximity of the firearms emboldened the defendant’s possession of the marijuana on both occasions. The court determined that the defendant’s possession of marijuana was a felony offense and that his possession of the firearms facilitated his commission of the felony drug offense. Consequently, the court applied the four-level enhancement provided under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. The court also determined that the July gun possession was relevant conduct of the February gun possession, pursuant to U.S.S.G. § 1B1.3.
The Third Circuit disagreed. Initially, the Third Circuit recognized that the relevant conduct standard requires a showing that the offenses at issue are sufficiently similar, regular and temporally proximate. The court determined that while the February and July incidents were close temporally, the “underdeveloped factual record” precluded it from concluding that the offenses were sufficiently similar and regular. Specifically, the court found that the presence of cash and a small undetermined amount of marijuana near the firearms in both incidents, alone, merely showed that the offenses were similar but isolated and unrelated events. The District Court’s finding otherwise was clearly erroneous.
The Third Circuit also determined that the phrase “in connection with,” as used in § 2K2.1(b)(6), means that the firearm facilitates or has the potential to facilitate the felony offense. In recognizing the distinction between drug trafficking and simple drug possession offenses, the court interpreted Application Note 14 of § 2K2.1 to provide that, while the firearm necessarily facilitates a drug trafficking offense, the sentencing court specifically must find that the firearm facilitated a simple drug possession offense. The Third Circuit concluded that, where the predicate offense is simple drug possession, the mere proximity of the guns to the drugs is insufficient to establish the facilitation requirement under § 2K2.1(b)(6). The Third Circuit ultimately ruled that the sparsity of facts in the record did not support the sentencing court’s conclusion that the firearm found in the trunk of the car facilitated the defendant’s possession of the marijuana found in the glove compartment. The court reasoned that simultaneous possession of the gun and drugs is not enough. The Third Circuit remanded the case to allow the District Court to make additional findings regarding the facilitation requirement under § 2K2.1(b)(6).
In West, the defendant was arrested on two separate occasions in 2007. During a traffic stop on February 28, 2007, police found cash, a small undetermined amount of marijuana and a gun in the glove compartment. Another firearm was discovered later in a backpack in the trunk of the car. The defendant admitted possession of the cash and marijuana but denied possession of the firearms. Police later determined that the gun found in the trunk had been stolen. On July 27, 2007, a firearm was discovered in the rented apartment of the defendant’s girlfriend during a routine fire-code inspection. An undetermined amount of cash and marijuana also were discovered during a search of the apartment. Police later determined that this gun also had been stolen. The defendant subsequently pled guilty to possession of the gun discovered in the trunk of his car in February, but refused to plead guilty to possessing any other firearms.
The District Court ruled that the defendant possessed, either actually or constructively, both the firearm discovered on the trunk of the car in February and the gun found in the apartment in July. However, the court ruled that the defendant did not possess the gun found in the glove compartment of his car. The court concluded that the close proximity of the firearms emboldened the defendant’s possession of the marijuana on both occasions. The court determined that the defendant’s possession of marijuana was a felony offense and that his possession of the firearms facilitated his commission of the felony drug offense. Consequently, the court applied the four-level enhancement provided under U.S.S.G. § 2K2.1(b)(6) for possession of a firearm in connection with another felony offense. The court also determined that the July gun possession was relevant conduct of the February gun possession, pursuant to U.S.S.G. § 1B1.3.
The Third Circuit disagreed. Initially, the Third Circuit recognized that the relevant conduct standard requires a showing that the offenses at issue are sufficiently similar, regular and temporally proximate. The court determined that while the February and July incidents were close temporally, the “underdeveloped factual record” precluded it from concluding that the offenses were sufficiently similar and regular. Specifically, the court found that the presence of cash and a small undetermined amount of marijuana near the firearms in both incidents, alone, merely showed that the offenses were similar but isolated and unrelated events. The District Court’s finding otherwise was clearly erroneous.
The Third Circuit also determined that the phrase “in connection with,” as used in § 2K2.1(b)(6), means that the firearm facilitates or has the potential to facilitate the felony offense. In recognizing the distinction between drug trafficking and simple drug possession offenses, the court interpreted Application Note 14 of § 2K2.1 to provide that, while the firearm necessarily facilitates a drug trafficking offense, the sentencing court specifically must find that the firearm facilitated a simple drug possession offense. The Third Circuit concluded that, where the predicate offense is simple drug possession, the mere proximity of the guns to the drugs is insufficient to establish the facilitation requirement under § 2K2.1(b)(6). The Third Circuit ultimately ruled that the sparsity of facts in the record did not support the sentencing court’s conclusion that the firearm found in the trunk of the car facilitated the defendant’s possession of the marijuana found in the glove compartment. The court reasoned that simultaneous possession of the gun and drugs is not enough. The Third Circuit remanded the case to allow the District Court to make additional findings regarding the facilitation requirement under § 2K2.1(b)(6).
Court upholds Iranian trade sanctions regime in face of broad constitutional challenges
In United States v. Ali Amirnazmi, No. 10-1198 (May 13, 2011), the Court affirms on all counts a chemical engineer's conviction for marketing software to Iranian industrial enterprises. The 72-page slip opinion offers an intensive review of the historical development of subjects as varied as the unconstitutional delegation doctrine and the embargo on Iran. Responding to a series of nuanced and articulate defense challenges, the opinion addresses the authority of Congress to vest the Executive with power to define criminal sanctions; the status of “dynamic” software under laws protecting the free flow of ideas to and from embargoed nations; the application of the vagueness doctrine; the law of conspiracy; and the validity of subpoenas under Criminal Procedure Rule 17(c).
Judge Scirica, joined by Judges Barry and Vanaskie, confronts an intricate web of statutes and Treasury Department regulations defining the Iran embargo inaugurated by President Clinton’s executive order in 1995. The Court holds the governing congressional enactments to “meaningfully constrain” executive discretion to define criminal conduct incident to the embargo, and thus not to represent an unconstitutional delegation of Article I legislative authority.
The Court also rejects a challenge based on congressional inaction post-dating the governing enactment. Under the law, Congress “shall meet” every six months “to consider a vote on a joint resolution” that would end the embargo. Congress has not followed that directive. The political question doctrine and executive authority in the area of foreign relations form a backdrop to the Court’s analysis. But in a notable aside that would appear to refer tacitly to the judiciary’s role, the Court states that “such considerations do not preclude enforcing compliance with statutory dictates.” Not here, however. Reviewing distinct legislative developments, the Court observes that “far from being unaware or indifferent, in the case of Iran, Congress has clearly and consistently demonstrated its support of the Executive’s agenda.” Accordingly, inaction in derogation of the statutory mandate has not stripped the delegation of its validity.
The Court also holds that the “ChemPlan” software at issue—a “dynamic” tool capable of projecting demand under variables selected by the end user, and thus facilitating Iran’s industrial planning—is not exempt from the embargo under an exception by which Congress “sought to ensure the robust exchange of informational materials.” Notwithstanding some back-and-forth between Congress and the Treasury Department in this area, the Court holds that the Treasury Department’s establishment of a carve-out for material that is “not fully created and in existence at the date of the transactions” is a permissible construction of the informational-materials exemption.
Mr. Amirnazmi also attacked the “fully created and in existence” standard as unconstitutionally vague. In rejecting this challenge, the Court draws essential support from the exposition in Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982), which directs that “economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action and may clarify the meaning of the regulation by their own inquiry, or by resort to an administrative process.” In part by looking to the circumstances of inquiry that Mr. Amirnazmi in fact made of the Treasury Department, the Court rejects his vagueness challenge. A footnote suggests that other defendants might be able to prevail on vagueness challenges under other circumstances.
As to the law of conspiracy, the Court rejects a challenge predicated on the argument that conduct spanning from 1996 to 2008 consisted, if anything, in two conspiracies rather than one, with the earlier conspiracy falling outside the statute of limitations. The Court finds there to have been a single conspiracy despite evidence that representatives of the Iranian enterprises lost interest for a time in Mr. Amirnazmi’s software. The “temporary lull in sales” did not sever the requisite agreement among conspirators in light of Mr. Amirnazmi’s “continuous efforts to preserve and strengthen [his company’s] Iranian ties” and the “unaltered nature of the parties’ interests” before and after the limitations period.
Finally, the court rejects a challenge under Fed. R. Crim. P. 17(c) asserting that the government impermissibly used subpoenas as discovery devices. The contention was that the government, while formally listing scheduled trial dates for production of subpoenaed telephone recordings from the Federal Detention Center, “implicitly understood that the FDC would expedite its production of the requested evidence” so as to disclose the materials sooner. This could be expected because “the FDC habitually responds to subpoenas received from the United States Attorney’s Office” with “alacrity.” The Court holds the subpoenas valid in light of their compliance with the “facial requirements of trial subpoenas,” as “the record before us does not demonstrate … an impermissible discovery motive.”
Judge Scirica, joined by Judges Barry and Vanaskie, confronts an intricate web of statutes and Treasury Department regulations defining the Iran embargo inaugurated by President Clinton’s executive order in 1995. The Court holds the governing congressional enactments to “meaningfully constrain” executive discretion to define criminal conduct incident to the embargo, and thus not to represent an unconstitutional delegation of Article I legislative authority.
The Court also rejects a challenge based on congressional inaction post-dating the governing enactment. Under the law, Congress “shall meet” every six months “to consider a vote on a joint resolution” that would end the embargo. Congress has not followed that directive. The political question doctrine and executive authority in the area of foreign relations form a backdrop to the Court’s analysis. But in a notable aside that would appear to refer tacitly to the judiciary’s role, the Court states that “such considerations do not preclude enforcing compliance with statutory dictates.” Not here, however. Reviewing distinct legislative developments, the Court observes that “far from being unaware or indifferent, in the case of Iran, Congress has clearly and consistently demonstrated its support of the Executive’s agenda.” Accordingly, inaction in derogation of the statutory mandate has not stripped the delegation of its validity.
The Court also holds that the “ChemPlan” software at issue—a “dynamic” tool capable of projecting demand under variables selected by the end user, and thus facilitating Iran’s industrial planning—is not exempt from the embargo under an exception by which Congress “sought to ensure the robust exchange of informational materials.” Notwithstanding some back-and-forth between Congress and the Treasury Department in this area, the Court holds that the Treasury Department’s establishment of a carve-out for material that is “not fully created and in existence at the date of the transactions” is a permissible construction of the informational-materials exemption.
Mr. Amirnazmi also attacked the “fully created and in existence” standard as unconstitutionally vague. In rejecting this challenge, the Court draws essential support from the exposition in Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982), which directs that “economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action and may clarify the meaning of the regulation by their own inquiry, or by resort to an administrative process.” In part by looking to the circumstances of inquiry that Mr. Amirnazmi in fact made of the Treasury Department, the Court rejects his vagueness challenge. A footnote suggests that other defendants might be able to prevail on vagueness challenges under other circumstances.
As to the law of conspiracy, the Court rejects a challenge predicated on the argument that conduct spanning from 1996 to 2008 consisted, if anything, in two conspiracies rather than one, with the earlier conspiracy falling outside the statute of limitations. The Court finds there to have been a single conspiracy despite evidence that representatives of the Iranian enterprises lost interest for a time in Mr. Amirnazmi’s software. The “temporary lull in sales” did not sever the requisite agreement among conspirators in light of Mr. Amirnazmi’s “continuous efforts to preserve and strengthen [his company’s] Iranian ties” and the “unaltered nature of the parties’ interests” before and after the limitations period.
Finally, the court rejects a challenge under Fed. R. Crim. P. 17(c) asserting that the government impermissibly used subpoenas as discovery devices. The contention was that the government, while formally listing scheduled trial dates for production of subpoenaed telephone recordings from the Federal Detention Center, “implicitly understood that the FDC would expedite its production of the requested evidence” so as to disclose the materials sooner. This could be expected because “the FDC habitually responds to subpoenas received from the United States Attorney’s Office” with “alacrity.” The Court holds the subpoenas valid in light of their compliance with the “facial requirements of trial subpoenas,” as “the record before us does not demonstrate … an impermissible discovery motive.”
Tuesday, April 26, 2011
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.
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.
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.
Friday, April 22, 2011
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.
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.
Wednesday, April 20, 2011
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.
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.
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.
Friday, April 08, 2011
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.
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.
Monday, March 28, 2011
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).
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 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.
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.
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