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.

Third Circuit Vacates Sentence Based on Extrapolated Drug Weight

In United States v. Titus, ---F. 4th---, 2023 WL 5356241 (3d Cir. Aug. 22, 2023), the Third Circuit found that a district court erred when calculating the converted drug weight for sentencing under U.S.S.G.§ 2D1.1.  To calculate the total amount of drugs the defendant had unlawfully prescribed, the District Court extrapolated from a sample of 24 files and found thousands of additional prescriptions to be unlawful.  That analysis insufficient, the Third Circuit held, because "the government never showed that the sample was large enough to be reliably representative of the remaining thousands of prescriptions."  The Third Circuit accordingly vacated the defendant's sentence and remanded for resentencing.

Third Circuit Deems Pennsylvania Robbery Under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) a "Crime of Violence" for Guidelines Purposes

In United States v. Henderson, ---F. 4th---, 2023 WL 5211335 (3d Cir. Aug. 15, 2023), the Third Circuit found that Pennsylvania robbery under 18 Pa. Cons. Stat. § 3701(a)(1)(ii) is a categorical "crime of violence" under the federal Sentencing Guidelines.  The Court reiterated its earlier holding that the Pennsylvania robbery statute is divisible for purposes of the categorical approach.  It then found that the version of the offense criminalized at § 3701(a)(1)(ii) counts as a "crime of violence" under the elements clause of U.S.S.G. § 4B1.2(a)(1) because it necessarily involves the threatened use of force against the person of another.  The Court did not reach the alternative question of whether the offense also qualifies as a "crime of violence" under § 4B1.2(a)(1)'s enumerated offenses clause.

Third Circuit Finds No Convergence or Personal Benefit Requirement in Federal Wire Fraud Statute

In United States v. Porat, ---F. 4th---, 2023 WL 5009238 (3d Cir. 2023), the Third Circuit clarified what the government has to prove to prove someone guilty of wire fraud, in violation of 18 U.S.C. §1343.  First, the Court held that the wire fraud statute does not require proof that the defendant sought to personally obtain money or property from the victims.  The Court agreed with the Second Circuit that the "identify of the ultimate beneficiary is not dispositive" and the statute is broad enough to encompass "schemes by defendants to obtain money for the benefit of a favored third party."  

Second, the Court joined the majority of other Circuits in holding that the wire fraud statute does not require the defendant to deceive the same party he defrauds of money, rejecting a concept known as "convergence."  

Third Circuit Adopts a Two-Factor Test to Determine Whether a Private Party Was Acting as an Agent of the Government for Fourth Amendment Purposes

In United States v. Kramer, ---F. 4th---, 2023 WL 4875890 (3d Cir. 2023), the Third Circuit joined the Fourth, Ninth, Tenth, and Eleventh Circuits in adopting a two-factor test for determining whether a private party was acting as an agent of the government for Fourth Amendment purposes.  The two factors are: "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private citizen performing the search intended to assist law enforcement or acted to further her or his own legitimate and independent purposes."  The Third Circuit also joined its sister Circuits in holding that the defendant bears the burden of proving the private party was acting as an instrument of the government.  

Applying the test to the case at hand, the Third Circuit affirmed the District Court's denial of the defendant's motion to suppress.  The Court found that the Fourth Amendment was not implicated because, viewing the record in the light most favorable to the government, the defendant's then-wife searched his cellphone of her own volition without the government's knowledge or acquiescence.