Third Circuit Finds Defendant Was Not Seized Where He Briefly Paused and Raised Hands Before Fleeing

In United States v. Amos, ---F. 4th---, 2023 WL 8636910 (3d Cir. Dec. 14, 2023), the Third Circuit affirmed a district court's denial of a defendant's motion to suppress.  Officers observed the defendant, Shiheen Amos, near the scene of a reported assault.  The officers approached Mr. Amos in a marked patrol car with the lights running and ordered Mr. Amos to put his hands up.  According to the police, Mr. Amos put his hands halfway up and stopped for approximately one second before running away.  When an officer caught up to Mr. Amos and handcuffed him, a handgun fell out of his pocket.  He was charged with being a felon in possession of a firearm and moved to suppress the handgun, which the district court denied.

The question on appeal was whether Mr. Amos was seized by the officers before he starting running.  The Third Circuit found he was not.  The Court first found there was a show of authority because the officers drove toward Mr. Amos with their lights on and ordered him to put his hands up, a situation in which no reasonable person would feel free to leave.  The Court nevertheless found that Mr. Amos was not seized because his "one-or two-second pause and halfway hand raise did not manifest submission to the officer's show of authority."  In so holding, the Court relied on earlier caselaw stating that a "momentary pause" does not qualify as submission to an officer's show of authority.

The Third Circuit did remand the case for resentencing, however, because Mr. Amos received an enhancement based on a prior Pennsylvania aggravated assault conviction that no longer qualifies as a categorical crime of violence under United States v. Jenkins, 68 F.4th 148 (3d Cir. 2023).

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/203298p.pdf.

Third Circuit Deems Armed Bank Robbery a "Crime of Violence" Under 18 U.S.C. § 924(c)

In United States v. Jordan, ---F. 4th---, 2023 WL 8590446 (3d Cir. Dec. 12, 2023), the Third Circuit deemed armed bank robbery, in violation of 18 U.S.C. § 2113(d), a "crime of violence" for purposes of 18 U.S.C. § 924(c).  Section 2113(d) states: "Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both."

The Jordan Court first found that the bank robbery statute is divisible and creates several federal bank robbery offenses.  Section 2113(a) and (b) are divisible into separate offenses.  Section 2113(a) is also internally divisible into bank robbery by (1) "force and violence, or by intimidation" and (2) by "entering . . . any bank . . . with intent to commit . . . any felony . . . or any larceny."  Finally, Section 2113(d), the armed bank robbery provision, is divisible into "crimes predicated on subsection (a) and those predicated on subsection (b)."  

Because Section 2113(d) is divisible, the Court applied the modified categorical approach and determined the defendant was convicted of the version of armed bank robbery predicated on bank robbery by force, violence, or intimidation.  The Court then reaffirmed its earlier holding in United States v. Johnson, 899 F.3d 191 (3d Cir. 2018), that this version of bank robbery is a categorical "crime of violence" under the elements clause of § 924(c).  In so doing, the Court rejected the defendant's argument that Borden v. United States, 141 S. Ct. 1817 (2021), overruled Johnson.  It also rejected a new argument about the elements of the bank robbery statute because the argument was not made in Johnson and Johnson is the law of the Circuit.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222153p.pdf.

Third Circuit Upholds Sentencing Commission's Definition of "Serious Bodily Injury" in Commentary to Aggravated Assault Guideline

In United States v. Caraballo, ---F. 4th---, 2023 WL 850448 (3d Cir. Dec. 8, 2023), the Third Circuit upheld the Sentencing Commission's definition of "serious bodily injury" in the commentary to USSG § 2A2.2, the guideline for aggravated assault.  The Court first found that the term "serious bodily injury" is genuinely ambiguous because the word "serious" has several potential meanings, each of which are reasonable.  The Court then found that the definition contained in the commentary—"an injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring intervention such as surgery, hospitalization, or physical rehabilitation"—is reasonable and therefore entitled to deference under Kisor v. Wilkie, 139 S. Ct. 2400 (2019) and United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc).  Finally, the Court found that the District Court did not clearly err in finding serious bodily injury where the victim sustained three stab wounds and a broken jaw in the assault.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/221976p.pdf.

Third Circuit Dismisses Claim of Legal Innocence Under Jones v. Hendrix

In Voneida v. Johnson, ---F. 4th---, 2023 WL 8462455 (3d Cir. Dec. 7, 2023), the Third Circuit dismissed a postconviction claim of legal innocence for lack of jurisdiction under Jones v. Hendrix, 599 U.S. 465 (2023).  The petitioner, Steven Voneida, was convicted of transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c), in 2008.  In 2015, Mr. Voneida filed a habeas petition under 28 U.S.C. § 2241 arguing that his conviction was no longer valid because it relied on an interpretation of the threats statute the Supreme Court rejected in Elonis v. United States, 575 U.S. 723 (2015).  In so doing, Mr. Voneida relied on the Third Circuit's decision in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), which held that the "savings clause" in 28 U.S.C. § 2255(e) allows petitioners to raise claims of legal innocence through § 2241 when § 2255 proves inadequate due to its restriction on second-or-successive petitions.

In Jones, however, the Supreme Court held that the bar on second-or-successive petitions does not render § 2255 "inadequate" and thereby allow petitioners to raise claims of legal innocence under § 2241.  As a result, in Voneida, the Third Circuit held that Jones officially abrogated In re Dorsainvil and closed the avenue to relief that case had opened.  The Court therefore ordered that Mr. Voneida's petition be dismissed for lack of jurisdiction.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/221264p.pdf.

Third Circuit Holds That Brief Criminal History Check Did Not Unconstitutionally Prolong Traffic Stop

In United States v. Hunter, ---F. 4th---, 2023 WL 8405894 (3d Cir. Dec. 5, 2023), the Third Circuit held that a two-minute criminal history check did not unconstitutionally prolong an otherwise lawful traffic stop.  The defendant, Jamar Hunter, was lawfully pulled over by a Pennsylvania state trooper.  The trooper ran a license and warrant check, which came up negative.  The trooper then ran an additional criminal history check, adding one or two minutes to the stop.  When the check revealed that both Mr. Hunter and the passenger had extensive criminal histories, the trooper ordered them out of the vehicle and recovered a handgun during a Terry frisk.

On appeal, Mr. Hunter argued that the criminal history check exceeded the scope of the traffic stop and unconstitutionally prolonged it.  The Third Circuit disagreed.  It noted that under Rodriguez v. United States, 575 U.S. 348 (2015), while officers are not allowed to go off-mission and prolong traffic stops for reasons unrelated to officer safety, such as dog sniffs or extensive questioning, they are allowed to take "negligently burdensome precautions" that allow them to complete traffic stops safely.  Agreeing with the First, Fourth, Seventh, Eighth, Ninth, and Tenth Circuits, the Third Circuit held that a brief criminal history check is a permissible safety precaution that officers are allowed to conduct within the scope of a lawful traffic stop.  

The Court emphasized, however, that the criminal history check in the instant case was reasonable because it only last two minutes.  It warned that a criminal history check may become unreasonable, and therefore violative of the Fourth Amendment, if it is more than "negligently burdensome."  The Court also stated that given the potential for "mischief . . . or worse" that officer discretion creates, it is incumbent on courts to "recognize that reality and to therefore be painstaking in our attention to all the evidence presented in traffic stop cases and the circumstances out of which they arise."

In a concurrence, Judge McKee cited extensive research showing that people of color are disproportionately subjected to traffic stops as well as the risk of harm and death traffic stops portend.  He therefore calls for Fourth Amendment law to evolve to recognize these disparities and ensure "all motorists receive the same degree of protection from an officer's conscious or unconscious bias."

 The opinion is available at: https://www2.ca3.uscourts.gov/opinarch/213316p.pdf.

Third Circuit Holds That Murder in Furtherance of a Continuing Criminal Enterprise Is Not a "Covered Offense" Eligible for Resentencing Under Section 404(b) of the First Step Act

In United States v. Junius, 86 F.4th 1027 (3d Cir. 2023), the Third Circuit joined the Second, Fourth, and Sixth Circuits to hold that murder in furtherance of a continuing criminal enterprise ("CCE"), in violation of 28 U.S.C. § 858(e)(1)(A), is not a "covered offense" eligible for resentencing under Section 404(b) of the First Step Act.  A "covered offense" is an offense for which the statutory penalties were modified by the Fair Sentencing Act of 2010.  The Third Circuit found that although murder in furtherance of a CCE is predicated on a violation of a covered drug offense, the CCE offense is separate and is not a "covered offense" itself because its statutory penalties were unaffected by the Fair Sentencing Act.  The Third Circuit also held that resentencing was not required by the "sentencing package doctrine" because the defendants' sentences on the CCE offenses were not interdependent with their sentences on the covered drug offenses.

The opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222208p.pdf.

Third Circuit Holds the Supreme Court's Decision in Concepcion v. United States Did Not Overrule Its Decision in United States v. Andrews

In United States v. Stewart, 86 F.4th 532, the Third Circuit considered whether the Supreme Court's decision in Concepcion v. United States, 597 U.S. 481 (2022), overruled its earlier decision in United States v. Andrews, 12 F.4th 255 (3d Cir. 2021). In Andrews, the Third Circuit held that "neither the length of a lawfully imposed sentence nor any nonretroactive changes to mandatory minimum sentences" qualifies as "extraordinary and compelling reasons" allowing a district court to grant a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i).  The defendant in Stewart argued that this limitation conflicted with the Supreme Court's decision in Concepcion, which held that courts considering whether to grant relief under Section 404(b) of the First Step Act may consider intervening changes of fact and law.

The Third Circuit disagreed and held that Andrews survives Concepcion.  The Court found Concepcion distinguishable because it did not address § 3582 and involved a defendant whom the government conceded was statutorily eligible for relief.  The Court therefore found that Concepcion did not address the threshold question of whether someone is eligible for a reduced sentence. The limitations on what qualifies as "extraordinary and compelling reasons" announced in Andrews therefore remain binding notwithstanding Concepcion.  

The Third Circuit nevertheless noted that the Sentencing Commission recently amended its policy statement to expand what qualifies as "extraordinary and compelling reasons" making a defendant eligible for a reduction in sentence.  The Court suggested it would consider the amendments' effect on Andrews in an appropriate case but declined to do so in Stewart.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222770p.pdf.

False contract certifications on otherwise quality work defrauded the Dept. of Transportation of its "property"; loss calculation remand

In United States v. Kousisis, 82 F.4th 230 (3d Cir. Sept. 22, 2023), pdf of opinion, the Third Circuit upheld wire-fraud convictions under 18 U.S.C. § 1343 for a scheme to falsely certify compliance with disadvantaged business enterprise (DBE) contracting requirements in federally financed infrastructure projects in Philadelphia. Because the defendants completed the painting and repair work required by the contracts at issue, they argued that the government failed to prove that they defrauded the Pennsylvania Department of Transportation of property, relying in part on Kelly v. United States, 140 S.Ct. 1565 (2020). The Third Circuit disagreed, holding that the defendants’ failure to abide by the DBE terms of the contracts meant that they were not legally entitled to payment, even if they performed the underlying infrastructure work. Consequently, the funds paid by Pennsylvania in accordance with the contracts were, under Kelly, the “object” or the “true purpose” of the fraud.

However, the Court vacated the sentence and remanded. The District Court had used Alpha’s profits to set the government’s loss amount. That was error where Alpha always stood to lawfully profit and so all of its gains were not ill-gotten. The Court remanded for the District Court to use a different measure for loss calculation: the value of the contracts less the value of performance. The Court emphasized that an upward variance might be necessary if this calculation understated the loss and failed to capture the real harm of depriving the DBE and broader industry of developing working relationships.

The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

 

            In United States v. Packer, 83 F.4th 193 (3d Cir. Sept. 26, 2023), https://www2.ca3.uscourts.gov/opinarch/222554p.pdf, the Third Circuit found that the Court’s indication it would impose a certain sentence before the defendant had allocuted was not reversible plain error. In a revocation proceeding, after three prior supervision modifications for methamphetamine use, the defendant was alleged to have made terroristic threats against his girlfriend. At the revocation hearing, the probation officer and girlfriend testified and also introduced various text messages from the defendant. The Court found the defendant had violated his terms of release and faced an advisory guideline range of 21 to 27 months. The Court indicated it would impose a 24-month term of imprisonment. Then, the Court permitted the defendant to speak. Then the Court imposed the 24 months with no further supervision.

            Even assuming the defendant had satisfied the first three prongs of plain error (obvious error that affected his substantial rights), the Court declined to exercise its discretion on the fourth prong, that the error “seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Adams, 252 F.3d 276, 282 (3d Cir. 2001), which permits a court to presume that an allocution error satisfies the fourth prong, was not dispositive. Here, unlike in Adams and other cases where the Court has reversed, the defendant was allowed to allocute and he did not add any additional mitigating factors or distinctive characteristics in that allocution.

Third Circuit grants habeas relief because defense counsel was ineffective in failing to object to judge threatening perjury charge to witness who changed his testimony

 In Rogers v. Superintendent Greene SCI, --- F.4th ----, 2023 WL 5763346 (3d Cir. Sept. 7, 2023), available here, the Third Circuit reversed the District Court's denial of habeas relief. Judge Matey, writing for the panel, found defense counsel ineffective for failing to object to the trial judge admonishing a witness who changed his story and also failing to cross-examine the witness about this change.

The case involved three men shooting and a bystander dying in the crossfire. Three eyewitnesses came forward at different times. Two men (Rogers and Hayes) were charged with the murder. Only two of the witnesses could be located by the time of trial. Hayes was tried first and acquitted. At Rogers’s trial, one of the witnesses changed his testimony, giving testimony supporting the defense by naming Hayes—not Rogers—as the first shooter. The judge excused the jury, admonished the witness for his flip-flop, and warned of the penalty for perjury, specifically saying the witness committed “[p]erjury on the record.” The judge warned [the witness] that if he was “playing some little game here,” the judge would ensure he “receive[d] a maximum consecutive sentence” for perjury. Before dismissing [the witness], the judge advised him to “[d]o some long hard thinking” before resuming his testimony, because if he “sa[id] that [Hayes shot first] again, it is [p]erjury.” Defense counsel neither objected to the judge’s actions, nor cross-examined the witness the next day when he returned to the pro-prosecution version of events.

The Third Circuit explained that Pennsylvania courts have warned against such judicial conduct for decades. And so counsel was ineffective for failing to object because she “maintained an unreasonable belief that the trial judge’s threats against [the witness] were permissible.” 

The Third Circuit also found prejudice and that the lower court’s standard to show prejudice was “contrary to . . . clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). While Strickland requires only “a reasonable probability that . . . the result of the proceeding would have been different,” the lower court wrongly used a higher outcome determinative standard: “that but for the act or omission in question, the outcome of the proceedings would have been different.”

Third Circuit Finds Reasonable Expectation of Privacy Where Defendant Had Lawful Possession of Keys to Girlfriend's Rental Car

In United States v. Montalvo-Flores, ---F. 4th---, 2023 WL 5521062 (3d Cir. Aug. 28, 2023), the Third Circuit found the defendant, Christopher Montalvo-Flores, had a reasonable expectation of privacy in a rental car, giving him Fourth Amendment standing to challenge a search of the vehicle.  The majority pointed to the fact that Mr. Montalvo-Flores was in possession of the vehicle's keys; the vehicle was locked; the vehicle had been rented by his girlfriend; and officers had seen the couple exchange the keys just prior to the search.  The majority found that Mr. Montalvo-Flores satisfied both prongs of the Katz test for Fourth Amendment standing because he expressed a subjective expectation of privacy in the vehicle and that expectation was objectively reasonable under the circumstances.  The majority also found that Mr. Montalvo-Flores's lack of a valid driver's license was immaterial to the issue of standing because a person without a driver's license can still exercise lawful dominion and control over a parked car.  

 The Court accordingly vacated Mr. Montalvo-Flores's conviction and remanded for further proceedings on his motion to suppress.  In dissent, Judge Hardiman argued that Mr. Montalvo-Flores failed to carry his burden of showing that his possession of the vehicle (vis a vis the keys) was lawful.

Third Circuit Clarifies Meaning of "Officer or Employee of the United States" in Federal Assault Statute

In United States v. Washington, ---F. 4th---, 2023 WL 5440527 (Aug. 24, 2023), the Third Circuit clarified the meaning of "officer or employee of the United States" in 18 U.S.C. § 111 and 1114(a), which make it a crime to assault such a person while they are engaged in their official duties.  The defendant, Mr. Washington, was convicted of assaulting two private contractors paid by the Federal Protective Service to protect the Social Security Administration building in Philadelphia.  The Third Circuit held that the contractors were not "officer[s] or employee[s] of the United States" because they did not hold an office of trust; their tenure was transient or fixed by agreement; their contract resembled an employment contract rather than an appointment or election; their pay was set by contract rather than law; and they were not nominated, confirmed, or appointed by a federal official such as the President of the United States or a department head.  

Because Mr. Washington did not assault an "officer or employee of the United States," and the evidence was insufficient to convict him under an alternative theory of liability, the Third Circuit reversed his conviction and remanded with instructions to enter a judgment of acquittal.