A Party May Not Preserve General Suppression Issues For Appeal, But Rather Individual Arguments Must Be Preserved With An Exacting “Degree of Particularity.”

In United States v. Joseph, -- F.3d --, 2013 WL 5273120 (September 19, 2013), the Third Circuit clarified the exactness with which an argument must be preserved for appeal, holding that raising a general issue is not sufficient to preserve an individual appellate argument.  Rather,  individual legal arguments must be preserved with an “exacting” degree of “particularity.”  In reaching this decision, the appellate court differentiated between the concepts of an “issue” and an “argument.”  Specifically, an issue is a broad concept or a question that may be addressed by multiple arguments or theories.  The only arguments that are preserved for appeal are the same arguments made before a district court.  Thus, raising one argument at trial does not preserve every possible argument that is related to an issue.

Akeem Joseph was arrested and charged with using counterfeit money at a Philadelphia club.  He made numerous statements to law enforcement both pre- and post-arrest.   Most damaging, he confessed to Secret Service after being Mirandized, and handed over incriminating text messages.  Prior to trial, Mr. Joseph filed a motion to suppress the counterfeit bills, the text messages and his confession.  To support the motion he raised both a Terry argument, for illegal stop and frisk at the club, and a lack of probable cause argument.   The probable cause argument was based on the arresting officers’ lack of expertise to know if the bills were counterfeit.  The motion was rejected and he was convicted.  

On appeal, Mr. Joseph again raised lack of probable cause for the arrest, but this time his argument was based on mens rea.  Specifically, he argued that the officer did not have sufficient evidence to establish that he had an intent to defraud at the time he possessed the counterfeit bills.  The Third Circuit found this was a completely new argument that was raised for the first time on appeal. The opinion notes that the two different theories presented by Mr. Joseph at trial and at appeal had different legal burdens and relied on different facts.  Therefore these were separate arguments.  When arguments are not based on the same legal rule and the same facts, they are not the same for purposes of preservation.  Because suppression arguments are waived if not raised at trial, Mr. Joseph could not make the mens rea argument on appeal.  The circuit court further explained that probable cause is a general issue; the specific arguments made to support the motion must be preserved individually.  Simply making a suppression motion below does not allow a party to then appeal under all possible suppression arguments.  In this case, the probable cause challenge at trial did not allow appellant to appeal the suppression decision based on a completely different theory

In sum, following this opinion parties are limited  on appeal to the specific arguments they made before the district court.  A specific suppression argument not raised below is deemed waived for purposes of appeal.

Funds Held In Individual Retirement Accounts and Joint Bank Accounts Are Available Funds Under Under the Criminal Justice Act (CJA).

            The Third Circuit held in United States v. Konrad, -- F. 3d --, 2013 WL 5289087 (3d Cir. September 20, 2013) that individual retirement funds (IRAs) and jointly held bank accounts are considered available funds under the Criminal Justice Act, 18 U.S.C.  § 3006A(a).  

            In this case, Joseph Konrad was appointed a federal public defender to represent him against charges of making false statements to the Federal Aviation Administration.  Disparities in CJA 23 Financial Affidavit and in his disclosure during his presentencing report interview revealed that Konrad did not disclose the value of his home ($258,000), underreported the value of his retirement accounts by more than $20,000, and underreported his household monthly income by $4,300.  Additionally, Mr. Konrad and his wife had several large joint accounts. The district court found he had sufficient funds to pay for an attorney and with full disclosure would not have been entitled to the services of the federal public defender.  In reaching this decision the court ruled that the money in his individual retirement accounts could be considered in determining his ability to pay for legal representation.  The Third Circuit affirmed.  The circuit court noted that liquidity is a major factor in determining an individual’s ability to pay for an attorney.  Although funds withdrawn early from an IRA are subject to a penalty, they can still be liquidated.  Similarly, funds are considered available when a person has control over them and authority to use them.  Mr. Konrad had access to funds from the joint accounts with his wife, and discretion to use them.  Accounts where both holders have authority to use funds are different from money held in a spouse’s individual account.  Here Mr. Konrad had authority to use the funds in the account. Therefore, these funds were available for legal expenses.   

             

             Mr. Konrad was ordered to repay $6,000 for his legal services by the district court.   He argued that he should only have to repay an amount based on the CJA rate of $125 an hour.  The Third Circuit disagreed holding that the CJA rate was under market value for a criminal defense attorney, and since Mr. Konrad did not qualify for a court appointed attorney, he could not take advantage of the subsidized rate.  The district court’s order was affirmed. This holding is consistent with other federal courts.

Death of Habeas Petitioner Moots Petition

In William A. Keitel v. Joseph Mazurkiewicz, et al., No. 12-4027 (3d Cir. Aug. 30, 2013), Appellant Ketiel filed a petition for writ of habeas corpus under 28 U.S.C. 2254 in the Western District of Pennsylvania, after he had been found guilty of various crimes in the Pennsylvania Court of Common Pleas in 1998, and both his direct appeal and PCRA action in the Pennsylvania courts had been unsuccessful. The District Court denied his petition, and Keitel appealed. Shortly before the appeal was scheduled to be heard, the parties notified the Court of Appeals that Keitel had died. Appellees sought to dismiss the appeal as moot; Keitel's family wanted to continue the appeal to "clear his name."

The Court of Appeals vacated the District Court's order denying the petition, remanding with instructions to dismiss as moot. The Court held that Keitel, having died, was no longer "in custody", thus rendering his habeas petition moot.

Sentencing courts are not limited to charged conduct, but may consider defendant's actual conduct, in determining whether defendant violated his supervised release

In United States v. Khalil Carter, Nos. 12-3754 & 12-3755 (3d Cir. Sept. 13, 2013), the Third Circuit addressed the question of what evidence a sentencing court may consider in the revocation context for determining the grade of a charged violation. Appellant Carter was charged with two violations of supervised release. One, a new state conviction for access device fraud, was indisputably a Grade B violation. The other, new state convictions for misdemeanor endangering the welfare of a child and corruption of a minor, was also a B violation unless the district court found that the offenses constituted crimes of violence as forcible sex offenses, which would result in a Grade A violation of supervised release. A Grade B violation resulted in a sentencing range of 6 to 12 months, while a Grade A violation produced a sentencing range of 27 to 33 months imprisonment.

In making its determination that Carter's misdemeanor charges constituted crimes of violence, the district examined evidence including the victim's statement, Carter's guilty plea transcript, a toxicology report on the victim, testimony by the victim's mother, and an oral statement by Carter. The court credited the mother's testimony, which indicated that Carter had taken the 13 year old victim out to dinner, provided her with alcohol, made inappropriate comments, and touched her genitals while she pretended to be asleep. On this evidence, the district court concluded that Carter's conduct amounted to a forcible sexual offense and, under the Guidelines, a "crime of violence" and a Grade A violation of supervised release.

On appeal, Carter contested the determination that his misdemeanor offenses constituted a Grade A violation of supervised release because he had not been charged with a forcible sex offense. The Third Circuit rejected this argument, clarifying that a district court is not limited to the actual charges or convictions in determining the grade of a violation in the revocation context, but may consider the defendant's actual conduct. In fact, a revocation can proceed without charges even being filed. Accordingly, the sentencing court was permitted to rely on the facts presented at the revocation hearing in analyzing the nature of Carter's violation, and was not limited by the charges filed or the offenses of conviction.

However, in determining that Carter committed a forcible sex offense under the Guidelines, the district court failed to name the forcible sex offense that it believed Carter had committed. It was not enough for the court to say that Carter's actions were violent or forcible without pointing to a specific local, state or federal offense containing those same elements. Nevertheless, the Third Circuit found any error harmless because the sentencing court specified that a sentence of 37 months imprisonment was the appropriate sentence whether Carter committed a Grade A or B violation and listed a number of factors supporting that conclusion. Accordingly, the Third Circuit affirmed the sentence based on the district court's alternative sentence calculation and explanation.

Chief Judge McKee filed a concurring opinion, emphasizing that "[w]hen the basis of a supervised release violation is the commission of a new crime, the supervising court should not impose a sentence to punish the defendant for that new offense. Punishment is best left to the judge who is assigned to handle the new criminal case. The judge whose supervised release is violated should instead 'sanction the violator for failing to abide by the conditions of the court-ordered supervision,' ... and impose a sentence that will 'facilitate the integration of offenders back into the community.'"

Third Circuit abandons judicial use immunity for defense witnesses and finds that government's refusal to immunize co-defendant did not violate defendant's due process rights

In United States v. Quinn, No. 11-1733 (Aug. 14, 2013) (en banc), the Third Circuit joined every other federal Court of Appeals in rejecting the use of judicial grants of immunity for defense witnesses. Defendant Quinn was convicted after a jury trial for aiding and abetting co-defendant Shawn Johnson in an armed bank robbery. Quinn's defense was that he did not know Johnson intended to rob a bank teller at gunpoint. Quinn believed Johnson would testify on his behalf at trial, but Johnson, who was awaiting sentencing on the robbery charges, invoked his Fifth Amendment privilege and refused to testify. The district court refused to immunize Johnson and Quinn appealed.

On appeal, Quinn argued that the district court erred in refusing to immunize Johnson and that the government engaged in prosecutorial misconduct by postponing Johnson's sentencing until after Quinn's trial in order to induce Johnson not to testify. The Third Circuit has recognized two situations where a criminal defendant may be entitled to have a defense witness receive immunity for his testimony: (1) when the government acts "with the deliberate intention of distorting the judicial fact-finding process," in which case the charges are dismissed unless the government chooses to immunize the witness at a new trial, United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), or (2) where the testimonial evidence is "clearly exculpatory and essential to the defense case and ... the government has no strong interest in withholding use immunity," in which case the district court was permitted to grant judicial use immunity to allow the testimony. Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). The Court noted that it was the only Court of Appeals to permit the trial court to immunize a defense witness and held that it was overturning the portion of Smith that permitted judicial grants of immunity. In so holding, the Court found that the decision to immunize a witness was a core prosecutorial function and that continuing to authorize judicial use immunity impinged on the separation of powers between the Executive and Judicial Branches. Although the Court abandoned the judicial use immunity remedy created in Smith, it retained Smith's five-part test for determining whether the government's refusal to immunize a defense witness denied a defendant due process.

Applying both Herman's "deliberate distortion" prosecutorial misconduct test and Smith's "clearly exculpatory and essential testimony" test to Quinn's appeal, the Court found that the government engaged in no wrongdoing. Under the "deliberate distortion" test, Quinn provided no evidence that Johnson intended to testify on his behalf, but was dissuaded from that testimony by the government's motion to continue sentencing. In fact, Johnson took no position on the delay of his sentencing and informed that trial court that he would invoke his Fifth Amendment privilege if called to testify. Quinn fared no better under the Smith factors. While Smith (1) sought immunity in the district court and (2) Johnson was available to testify, he was unable to establish the remaining three factors, namely, that: (3) the proffered testimony was clearly exculpatory, (4) the testimony was essential, and (5) there was no strong governmental interests which countervailed against the grant of immunity. Here, Quinn offered no proof that Johnson would offer clearly exculpatory evidence. Accordingly, the Third Circuit held that Quinn failed to show a due process violation requiring reversal and affirmed Quinn's conviction.

Bad cop who is convicted of civil rights violation “distributed” drugs when he planted drugs on those he arrested and thus court did not err in applying the drug trafficking guideline.

United States v. Figueroa, No. 12-3575 (September 3, 2013). Defendant Figueroa was a Camden police officer who, along with other officers, planted drugs on and stole money from people he arrested. After trial, he was convicted of civil rights violations under 18 USC §§ 241 & 242 and he was sentenced to 10 years. Third Circuit affirmed both conviction and sentence.

District court did not err in using the drug trafficking guideline to calculate the range. USSG § 2H1.1 applies to civil rights violations. Under § 2H1.1(a), the base offense level is the highest of certain options including "the offense level from the offense guideline applicable to the underlying offense." Here, defendant’s actions of planting drugs on individuals fit the meaning of "distribute" under 21 U.S.C. § 841(a) – transfer of a controlled substance from one person or place to another (statute carves out exception for cops lawfully engaged in law enforcement – but that exception doesn’t apply here). Because defendant committed the distribution of drugs in committing the civil rights violations, USSG § 2D1.1 applied. Also, the ten-year sentence, which was within the final guideline range, was substantively reasonable.

Third Circuit also affirmed a series of evidentiary rulings made by the district court: (1) Co-defendant’s out of court statement criticizing the way defendant wrote police reports was admissible as a co-conspirator statement in furtherance of conspiracy because co-defendant was commenting on defendant’s inability to write police reports in a way that would keep them safe from trouble. (2) Police reports offered by defendant were properly excluded as cumulative under FRE 403 because their proffered probative value, that they were false, had already been admitted by the witness. (3) Police officer’s testimony that the constitution required him to get consent forms signed prior to a search did not constitute improper expert testimony from a lay fact witness on an issue of constitutional law – there was no contemporaneous objection from defense and the officer was just testifying about police procedure.

District court’s jury instruction on the specific intent requirement of 18 USC § 242 was proper. Elements are: (1) defendant "acted under the color of law;" (2) deprived a person of civil rights; and (3) "acted knowingly, intentionally, and willfully." District court said that requisite intent is met if defendant intended to deprive someone of a legally recognized federal civil right OR acted "with reckless disregard of a constitutional requirement which has been made specific and definite." District court did not act improperly in rejecting the defense’s requested instruction that the government proves "that the defendant’s aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution." District court’s instruction was a proper statement of the law.

As a matter of first impression, sentencing courts are not required to conduct two separate § 3553(a) analyses when imposing a new term of supervised release in addition to post-revocation imprisonment

United States v. Clark, No. 12-3462 (Aug. 13, 2013): During his term of supervised release, defendant Justin Clark was a passenger in vehicle pulled over out-of-state and found to be in possession of $20,000 in cash. Although no new criminal charges were brought as a result of this incident, Clark was charged with violating the terms of his supervised release for several traffic citations, failing to make payments on various fines and bank loan, and a positive drug test. Clark admitted to violating his supervised release and faced an advisory Guidelines range of 7 to 13 months. He argued for house arrest in lieu of incarceration. The district court sentenced him to 13 months imprisonment and a new 47 month term of supervised release. The sole basis for this sentence was Clark's overall conduct which, according to the court, demonstrated a general pattern of noncompliance with supervision.

On appeal, Clark argued that the district court should have been required to conduct two separate analyses under 18 U.S.C. § 3553(a) - one with respect to Clark's 13 month term of imprisonment and a second, separate analysis with respect to his 47 month term of supervised release. The Third Circuit rejected this argument, concluding that such an added layer of procedural formality would not further any substantive end because a full discussion of the § 3553(a) factors necessarily includes both the punitive purposes post-revocation incarceration as well as the rehabilitative purposes of supervised release. Here, however, the Third Circuit found the district court's procedure lacking. Specifically, while the record revealed a full discussion of the first § 3553(a) factor, the nature and circumstances of the offense and the history and characteristics of the defendant, the court merely enumerated the remaining § 3553(a) factors without discussion. This insufficient development of the record rendered the sentence imposed procedurally unreasonable and required a remand for resentencing.

Crime of knowingly presenting a materially false statement in an immigration form requires a statement made under oath

United States v. Ashurov, No. 12-2711 (Aug. 12, 2013): Defendant, a citizen of Tajikistan, entered the United States under a visitor's visa and subsequently sought to obtain an F-1 student visa that would permit him to enroll in an English language program and temporarily remain in the U.S.. As part of the F-1 student visa application process, Ashurov signed a student certification form (Form I-20) agreeing to comply with the terms and conditions of his admission as a student and certifying that he was seeking admission for the purpose of pursuing a full course of study. Ashurov completed the Form I-20 once a year for three consecutive years. The certification was not made under oath or penalty of perjury. An investigation of Ashurov's school eventually revealed that the school was not in compliance with federal regulations and, further, that Ashurov was not in compliance with the terms and conditions of his student visa, despite repeatedly certifying on his Form I-20 that he was in compliance.

Ashurov was convicted after trial of presenting a materially false statement in an immigration form, in violation of 18 U.S.C. § 1546(a), but the district court entered a judgment of acquittal concluding that the government failed to prove that Ashurov made any statements under oath. The United States appealed, asking that the conviction be reinstated because the "knowingly presents" clause of § 1546(a), which Ashurov was charged with violating, did not require that the materially false statement be made under oath.

After considering the plain language of the statute, various canons of statutory construction, the legislative history of the statute, the statute's purpose, and the single precedential case previously interpreting the statute, the Third Circuit concluded that there remained a grievous ambiguity as to the meaning of the "knowingly presents" clause of § 1546(a) and whether it required that the false statement be made under oath. Accordingly, applying the rule of lenity to the "needlessly  convoluted statute," the Court ruled in Ashurov's favor and upheld the judgment of acquittal.

Congratulations to Brett Sweitzer and the Philadelphia Federal Community Defender Office on the win!

Graphic videos of child pornography are admissible and relevant to show knowledge despite defendant's offer to stipulate videos constituted child pornography

United States v. Finley, No. 12-2524 (Aug. 12, 2013): Defendant Craig Finley appealed his conviction for production, receipt, distribution, and possession of material depicting the sexual exploitation of a minor and sentence of 50 years' imprisonment followed by lifetime supervised release. The Third Circuit affirmed.

(1) Graphic videos and images were admissible and relevant to show knowledge despite defendant's offer to stipulate that videos constituted child pornography.

Before the jury was selected, defense counsel offered to stipulate that the videos and images obtained from the computers in the defendant's apartment were, in fact, child pornography, on the condition that the government not show the videos and images to the jury. The government refused the stipulation. After personally reviewing each proposed exhibit, the district court concluded that the videos and images were relevant and that the possible prejudice in introducing the evidence was outweighed by its probative value. The government, over defendant's objection, showed the jury 13 video segments and two segments of child pornography.

The Third Circuit affirmed the district court's admission of the evidence. The Court agreed that the videos and images were probative of an essential element of the offense, namely, the defendant's knowledge that the videos and images contained child pornography. The Court also found that the district court properly exercised its discretion in admitting a small sampling of the videos and images obtained only after personally reviewing the admitted evidence, weighing any unfair prejudice against the probative value of the images, and cautioning potential jurors about the disturbing nature of the potential evidence as part of the jury selection process.

(2) District court did not err by instructing jury that a sleeping child can "engage in" sexually explicit conduct within the context of 18 U.S.C. § 2251(a).

With respect to his conviction for producing material depicting the sexual exploitation of a minor, the defendant argued that the district court erred in instructing jurors that a sleeping child can "engage in" sexually explicit conduct. He asserted that § 2251(a) requires the minor, as opposed to the perpetrator, to actively engage in sexually explicit conduct. The Third Circuit rejected this argument, holding that the plain language of the statute, public policy, and persuasive case law all compel the conclusion that active involvement on the part of a minor is not essential for a conviction under § 2251(a).

(3) Punishment for both receipt and distribution of material involving the sexual exploitation of a minor did not violate Double Jeopardy.

Finally, the defendant argued that the district court violated his double jeopardy rights by separately considering, for purposes of sentencing, his convictions for receiving and distributing material depicting the sexual exploitation of a minor under 18 U.S.C. § 2252(a)(2). While the Third Circuit agreed that the defendant's convictions were the same in law, because § 2252(a)(2) did not contain multiple subsections or separate clauses indicating separate crimes for receipt and distribution, the convictions were not the same in fact. The Court found that the defendant distributed certain images that he produced separate and apart from images he received, he received images that he did not possess, and he distributed different images that he already possessed, thus making multiple punishments permissible.

En Banc Court Disavows Heightened Standard of Review in Challenges to Sufficiency of Evidence in Drug Conspiracy Prosecutions

United States v. Caraballo-Rodriguez, No. 11-3768.  Sitting en banc, a unanimous Court revisits “a long line of cases” addressing the government’s burden in drug trafficking prosecutions to show that a defendant (commonly, a courier) knew the object of a conspiracy was the distribution of a controlled substance, not just some type of contraband. Reading one line of precedent to have applied an improperly heightened standard, the Court clarifies that review for the sufficiency of evidence is the same in this context as in others.

Under the Jackson v. Virginia test, the Court reiterates in an opinion by Judge Rendell, “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction … is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” When applying this standard, the Court does not have the privilege of casting the “decisive vote on the jury,” but must affirm so long as “the jury’s verdict did not fall below the threshold of bare rationality.”

In drug conspiracy prosecutions, “the prosecution must prove the defendant’s knowledge of the conspiracy’s specific objective” — that is, must prove the defendant knew he or his co-conspirators were moving drugs. The Court clarifies, however, “that knowledge need not be proven by direct evidence.” So long as “a jury could rationally conclude that the defendant knew the subject of the conspiracy was drugs,” it is not fatal to the conviction that “the evidence was as consistent with contraband other than controlled substances.”

The Court concludes by finding in the case before it that the jury could reasonably have concluded both that the defendant knew he was involved in an illegal venture and that he “knew — or was willfully blind to the fact — that the illegal venture involved transporting drugs.” The Court emphasized the large amount of money the jury could infer the defendant had been offered to retrieve two suitcases from a luggage carousel, evidence that he had been left alone with this luggage for a time, and the heavy weight of the suitcases, which, the Court explained, jurors might decide as a matter of “common sense” would have led the defendant to know that they held drugs rather than cash, or at least to have been aware of the high probability they did.

In the course of clarifying its case law, the Court offers a sustained discussion of nine prior decisions in which it evaluated the sufficiency of the evidence in drug conspiracy prosecutions. Given the issue taken up by the en banc Court, the discussion focuses on these previous decisions’ variability in addressing challenges to the sufficiency of the evidence. But what may be of equal interest for those presently defending a drug conspiracy prosecution is the thorough discussion of the wide range of facts that can distinguish one drug conspiracy prosecution from another. While the very point of Caraballo-Rodriguez is that each case is different and there is no “specific formula as to what conduct or evidence is sufficient to infer knowledge,” the opinion’s overview of a range of conspiracy prosecutions may help reveal what is missing in any given case — including ones approaching trial now. Reviewing how the government has proved knowledge before might just turn up weak points in cases that still remain for a jury to decide.