Wednesday, July 13, 2022

Help us determine the future of the Third Circuit blog?

Greetings Blog readers, 

We are trying to determine how this Third Circuit blog can best suit your needs. 

If you have thoughts and suggestions, please email alison_brill@fd.org. Thank you!

  

Sunday, March 13, 2022

 

Sufficiency of Evidence for Bribery, Extortion and Related Charges in Political Corruption Trial

U.S.A. v. Edwin Pawloski and U.S.A. v. Scott Allinson

 

These cases were consolidated for trial and on appeal for dispositional purposes. As their facts are intertwined with one another, they are joined here for summarization

 

U.S.A. v. Edwin Pawlowski, No. 18-3390 (3d Cir.3/4/2022)

 

Sufficiency of evidence for bribery, extortion and false statements/ requirement of quip pro quo for bribery and extortion convictions/ entitlement to re-cross examination/ 18 U.S.C. §3553       

 

Pawlowski was convicted of federal programs bribery, Travel Act bribery, attempted Hobbs Act extortion, wire and mail fraud, honest services fraud, making false statements to the FBI, and conspiracy. The charges arose from his term as mayor of Allentown, when he allegedly steered contracts and provided other favors in return for campaign contribution.

 

Pawlowski first alleged that the government failed to prove a quid pro quo required for proof of the bribery and extortion charges —18 U.S.C. § 666(a)(1)(b); Travel Act bribery, 18 U.S.C. § 1952(a)(3); Hobbs Act extortion, 18 U.S.C. § 1951; wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; honest services wire fraud, 18 U.S.C. §§ 1343, 1346; and honest services mail fraud, 18 U.S.C. §§ 1341, 1346. (Though the Supreme Court has yet to extend the quid pro quo requirement to bribery charges, the parties assumed that it applied to extortion and bribery, and the Court proceeded on that assumption.)  He also argued that there was no overt act to sustain a conspiracy charge in relation to the bribery charges.  Because politicians both seek money from constituents and in the normal course of their business do things for them, McCormick v. United States, 500 U.S. 257 (1991), imposes a higher burden of proof— the government has to proves a quid pro quo— “an explicit promise or undertaking by the official to perform or not to perform an official act” in exchange for the donation. A vague expectation of future benefits is not enough. 

 

The Court then detailed evidence that a quid pro quo existed with seven individuals or entities. The first consisted of Pawloski’s securing a favorable inspection and expediting a zoning request on behalf of a developer. The second concerned a contract delinquent tax collector who, after a presentation soliciting city business, was pressured into giving a campaign contribution, tickets to an Eagles payoff game, and a steak dinner. In return Pawlowski exerted pressure on city officials and the contract was awarded. Third, an architectural firm was told that to be considered for some city work it needed to make a contribution. Once it did, Pawlowski and co-conspirators exercised pressure on a board reluctant to reward the contract to change its mind and do so. Before the contract was signed Pawlowski asked the firm for an additional contribution, and after expressing reluctance and receiving another request for the funds, the firm paid up. Fourth, an engineering firm desirous of getting contracts to fix streets spoke to Pawlowski and came away believing that without campaign contributions it would not get the job. Despite the contributions, it did not get the job, but Pawlowski and his co-conspirators continued to seek donations, promising future contracts. Fifth, a law firm (the once involved in the companion Allinson  opinion) gave several thousands of dollars in campaign contributions after conversations with Pawlowski’s co-conspirators led it to believe they would lead to a solicitorship. Sixth, Pawlowski thought a principal of a company that sought to provide Allentown with streetlights was politically influential and he sought to steer a contact its way. At the suggestion of a co-conspirator the company contributed to Pawlowski’s political benefit. The company then submitted language for the city’s RFQ, which despite Pawlowksi’s direction, was not incorporated into the RFQ. Pawlowski wanted the employee who refused the request fired. There was more back and forth, more contributions, and the contract was awarded. Finally, a cybersecurity company sought a contract with the city. Pawlowski, in return for donations and the promise of fundraising on his behalf, secured the contract for the company. All these incidents contained proof of the requisite quid pro quo.

 

Pawlowski challenged the sufficiency of the evidence for convictions for making false statements to the FBI. Evidence that Pawlowski told the FBI he did not engage in many of the bribery and extortions act of which he was convicted or for which there was evidence he acted contrary to his statements was sufficient to prove the statements were false.

 

Pawlowski complained that he was wrongfully denied an opportunity to re-cross examine a cooperating co-conspirator. At issue was a false statement the witness, prior to his cooperation during the investigation, made on tape to an undercover agent that was false. On re-direct, the witness said he made the false statement because at the time he did not trust the undercover agent. The trial judge did not allow re-cross because he deemed the matter not material. The court noted that Pawlowski could have called another witness to the conversation who might have offered the evidence he wanted to adduce on re-cross but declined to do so. The error, if any, did not require a new trial.

 

Finally, the court upheld the 180 month sentence imposed on Pawlowski. Despite evidence that most persons convicted of the same crimes received sentences anywhere from 30% or 60% of that imposed. And an avalanche of character evidence, the court found that the sentence was imposed after due consideration of the factors enumerated in 18 U.S.C. §3533(a). 

 

U.S.A. v. Scott Allinson, No. 19-3806 (3d Cir. 3/4/2022)

 

Quid pro quo required for bribery and extortion convictions/ variance between charge of single conspiracy in indictment and proof of multiple conspiracies at trial/severance of cases joined for trial

 

Allinson, a partner in a law firm displeased with the amount of business it received from the city of Allentown, given past campaign contributions to the mayor from partners. He was soon told that a parking authority solicitor would be fired and replaced with one of Allison’s partners, but a contribution to a party thrown by the mayor was needed. Allinson responded by offering to write a $2500 check. Allinson wanted and was promised the appointment would be made in a way that Allinson would receive credit from his firm for the appointment. Allinson reiterated this demand several weeks later to the mayoral subordinate he had been dealing with. He also conditioned fulfillment of a request for a $12,500 contribution on his firm’s receiving the solicitorship. Several other conversations occurred with mayoral subordinates, the mayor, and the law firm chairman, during which the solicitorship was dangled from demands for more money, and Allinson in return demanding results. The firm contributed more money as discussions proceeded about how to go about getting rid of the authority’s current solicitor and replacing him with a designee of the law firm. This evidence supported Allinson’s conviction for violating 18 U.S.C. § 666(a)(2): to “corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward [a government agent] in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.” Allison’s convictions for federal programs bribery, 18 U.S.C. § 666(a)(2), and conspiracy, 18 U.S.C. § 371 were affirmed. 

 

Allinson first contended that the evidence did not demonstrate an explicit quid pro quo. The court however found that all the conversations showed that Allinson did contribute to the mayor’s campaign for the purpose of obtaining the solicitorship. Allinson’s claim that there was insufficient evidence of an official act required for conviction of 18 U.S.C. § 201(b)(2), which makes it a crime for “a public official or person selected to be a public official, directly or indirectly, corruptly’ to demand, seek, receive, accept, or agree ‘to receive or accept anything of value’ in return for being ‘influenced in the performance of any official act” failed. An official act, pursuant to McDonnell v. United States, 136 S. Ct. 2355 (2016), is “a ‘question, matter, cause, suit, proceeding or controversy’” involving a “specific,” “focused,” and “formal exercise of governmental power.” The pending parking authority solicitorship qualified as a matter that would be pending before a public official in his official capacity. 

 

Allinson clearly wanted the mayor to use his official capacity to help his firm receive the appointment. Allinson’s argument that the government failed to prove the contract was worth more than $5000— recorded conversations showed Allinson expected much more than that form the contract, and he also agreed to contribute funds far in excess of that amount. 

 

Allinson also claimed the indictment, which alleged a single conspiracy, varied from the proof at trial, that he claimed proved only multiple unrelated conspiracies. Where an indictment charges a single conspiracy but the evidence at trial proves only multiple, separate conspiracies, a variance occurs. But unlike a “pure” sufficiency-of-the-evidence challenge, a variance challenge will successfully overturn a conviction only where the discrepancy between the indictment and the proof at trial prejudiced the defendant’s substantial rights. The Court agreed that the government did not prove a single conspiracy. However, despite the proof of multiple conspiracies, the proofs of the conspiracies were segregated, and the court’s jury instructions mitigated the chance the proof of the other conspiracies would unfairly prejudice Allinson. This claim thus failed.

 

Allinson next claimed that because he or his firm were never awarded a contract, the bribery conviction must fail, as he claimed the indictment alleged. The failure to prove the award of a contract amounted to a prohibited constructive amendment of the indictment. The Court disagreed, reading the indictment to allege that Allinson sought the award of a solicitorship. 

 

The Court rejected Allinson’s claim that the government’s closing misstated the law when saying “Bribery happens with a wink and a nod and sometimes a few words, an understanding between two people, we all know what’s happening here. You’re giving me this, I’m giving you that.” As the term “winks and nods” appears in a Supreme Court decision, Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring), it was accurate statement of the law. Moreover, the indictment did not, as Allinson alleged, state the government need only prove an implicit, and not explicit agreement, as the law requires. 

 

Finally, the Court found that Allinson’s motion to sever his case from Mayor Pawlowski’s was properly denied. His case was not so complex that the juror’s could not segregate his evidence from Pawlowski’s. The evidence against him consisted largely of his own recorded statements. The trial court’s instructions also minimized any danger of confusion in the minds of the jurors. 

 

Tuesday, January 11, 2022

Third Circuit specifies appellate standard of review for denial of hearing under Franks v. Delaware

Under Franks v. Delaware, a defendant may challenge a search warrant affidavit that contains false statements or omissions. See Franks v. Delaware, 438 U.S. 154 (1978). Such challenges to veracity are explored through an evidentiary hearing known as a Franks hearing. To obtain a Franks hearing, a defendant must make a substantial preliminary showing that (1) a false statement or omission was made knowingly and deliberately, or with reckless disregard for the truth, and (2) the false statement or omission is material to the probable cause determination.

In United States v. Desu, No. 20-2962, 2022 WL 69078 (3d Cir. Jan. 7, 2022), a tax fraud prosecution, the district court denied the defendant a Franks hearing. The Third Circuit affirms. In doing so, Desu specifies the appellate standard of review for the denial of a Franks hearing: “For the first element, [the Court] will review for clear error a district court’s determination regarding whether a false statement in a warrant application was made with reckless disregard for the truth. For the second element, [the Court] will review de novo a district court’s substantial-basis review of a magistrate judge’s probable cause determination.” Id. at *1.

Incidentally, the Court already applies this standard of review to the denial of a Franks claim after a hearing. See United States v. Brown, 631 F.3d 638, 642 & n.4 (3d Cir. 2011).

In addition, Desu rejects the defendant’s claims that (1) the deliberating jury received an exhibit with missing pages, (2) the indictment failed to state an offense under Marinello v. United States, 138 S. Ct. 1101 (2018), (3) the court excluded defense witnesses as irrelevant under Rule 401, (4) the government constructively amended of the indictment, and (5) the court miscalculated the tax loss under Sentencing Guideline § 2T1.1 cmt. n.3.

Tuesday, December 28, 2021

Third Circuit reaffirms that sentencing courts must only give deference to Sentencing Commission's interpretation of genuinely ambiguous Guidelines' provisions

In United States v. Malik Nasir, Appeal No. 18-2888, the Third Circuit finally resolved defendant Malik Nasir's appeal after review before a merits panel in November 2019, En Banc review in June 2020, and remand from the United States Supreme Court in November 2021. 

On a tip, Malik Nasir was arrested near a storage unit in which he kept the marijuana he was selling. He was subsequently charged with, and convicted of, two drug offenses and a firearm offense. At sentencing, the District Court applied a career offender enhancement found in the United States Sentencing Guidelines. Nasir appealed his convictions and challenged the application of that enhancement. The Third Circuit rejected the challenge to his convictions and reiterated that the sentencing enhancement was not properly applied.The Court, therefore, affirmed Nasir's convictions, vacated his sentence, and remanded for resentencing.

(1) Sufficiency of the evidence: The Third Circuit found that the evidence was sufficient to convict Nasir of violating crack house statute for his use of storage unit, despite contention that provision under which defendant was convicted did not apply to defendant's storage of marijuana; even if provision did not apply to storage, jury was presented with more than ample evidence that defendant was distributing marijuana from rented place, including evidence that unit contained distribution paraphernalia like scales and packaging materials, and facility owner's testimony about defendant's frequent and suspicious trips to unit. 

(2) Probable cause: Police had probable cause to arrest Nasir and search his vehicle as a search incident to arrest, despite contention that police failed to corroborate tip from storage facility owner regarding Nasir's activities, where arresting officers knew Nasir had history of drug dealing, owner reported that Nasir engaged in suspicious activity in making numerous trips to storage unit and took picture of unit that showed items consistent with drug distribution, and narcotics dog had positively alerted to drugs at unit.

(3) Motion to strike juror:  District court did not manifestly err in denying Nasir's motion to strike juror who expressed concern about her partiality to police officers, where court emphasized juror's obligation to be fair and impartial and to weigh evidence equally, juror responded with assurances that she would follow court's instructions, and juror said that she “would think” and “would hope” that she could be impartial.

(4) EN BANC: No deference owed to Sentencing Commission's interpretation of career offender guideline where guideline provision was not ambiguous: Nasir was subjected to the career offender enhancement as a result of a prior conviction for attempt to possess with the intent to distribute cocaine. He argued that the the definition of "controlled substance offense" in U.S.S.G. §4B1.2(b) did not include inchoate offenses. Inchoate offenses appear, however, in the commentary to §4B1.2. The Third Circuit, en banc, ruled that the plain language of the guideline, rather than the more expansive commentary interpreting the guideline, should be given controlling weight. In so holding, the Court noted that, while deference is generally owed to an agency's interpretation of its own ambiguous rule unless the interpretation is plainly erroneous or inconsistent with the regulation, the rule the agency is interpreting must be genuinely ambiguous and the agency's interpretation of the ambiguous rule must reflect fair and considered judgment. Applying canons of statutory construction, the Court found that §4B1.2(b)'s definition of controlled substance offense was not ambiguous and, therefore, the plain text reading of the definition, which does not include inchoate offenses, controlled. Therefore, sitting en banc, the Court determined Nasir was entitled to be resentenced without being classified as a career offender.

Friday, December 17, 2021

When evaluating a motion for early termination of supervised release, a district court may not impute a probation officer's improper actions to the defendant

 In United States v. Sheppard, Appeal No. 20-3088 (Nov. 3, 2021), defendant moved for early termination of supervised release based on allegations that his probation officer developed a personal and intimate relationship with defendant's long-term, live-in girlfriend. The defendant contended that his probation officer's egregious and offensive conduct had a detrimental effect on his rehabilitation and warranted early termination. The district court denied the defendant's motion, finding that the defendant needed continued supervision and the probation officer's misconduct had little to do with whether the defendant should continue supervision with a different probation officer. 

The Third Circuit affirmed the district court's discretionary denial of early termination on appeal, but stressed that "when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight." Indeed, "imputing a probation officer’s misconduct to a defendant places the defendant in a vulnerable position – not just in terms of seeking relief for the probation officer’s misconduct, but also as to the defendant’s welfare and ability to integrate into the community." Thus, while the district court did not err in denying the defendant's motion, it should not have considered the possible effects of the probation officer's misconduct on the defendant's rehabilitation.

Sunday, November 28, 2021

Court Grants Judgment of Acquittal for Failure to Prove Materiality of Defendant's Fraudulently Filing Document in Cosby Civil Suit

 In United States v. Joseph R. Johnson, No. 20-1449, 2021 WL 5492600 (Nov. 23, 2021), Judge Matey writes for a panel that also includes Judges Smith and Fisher to grant plain error relief for failure to prove materiality.  This statutory construction direct appeal could have broader applications in other contexts involving materiality. Thanks to Claudia Van Wyk, Assistant Federal Defender, Eastern District of Pennsylvania, for this summary! 

The attorney for one of the plaintiffs who sued Bill Cosby filed a praecipe with the district court to file an attachment that had been omitted from a previous motion.  Joseph Johnson, a Bill Cosby supporter, was convicted of making materially false, fraudulent and fictitious statements and representations, 18 USC sec. 1001, for subsequently hand-filing a document which purported to be the same praecipe, but which attached various documents and emails critical of the plaintiff in the lawsuit.  His deception was discovered and the FBI located and charged him.  Judge Matey summarizes the Circuit panel’s holding:

 Joseph Johnson developed an unusual fascination with the allegations of sexual assault against entertainer Bill Cosby. Hoping to cast doubt on the accusers, Johnson posed as an attorney and filed a fabricated document on the civil docket of one of the lawsuits against Cosby. His trick was quickly discovered, and the Government brought criminal charges against Johnson for making a false statement and identity theft, leading to a conviction after a jury trial. Johnson now appeals, arguing that the Government failed to prove that his statements were material.

 We agree. Johnson's behavior wasted public time and resources and distracted court officials from their work. But only Congress enjoys the authority to turn conduct into a federal crime. And while the Government presented plenty showing that Johnson's statements were false, it offered no evidence and elicited no testimony from the only individual it proposed as the government decisionmaker—the judge in the underlying litigation—to explain how the filing could influence a judicial decision. Because that evidence was necessary for the Government to establish liability under 18 U.S.C. § 1001, we will reverse Johnson's convictions and remand for entry of a judgment of acquittal.

 Judge Matey employs the following reasoning: 

  1. Johnson did not preserve the sufficiency challenge he brings in the Circuit because his general Rule 29 motion during trial and his post-trial motion for acquittal focused on the lack of evidence that he “caused” the false statement to be filed and did not mention materiality.
  2. Johnson is entitled to plain error review under the 4-part framework of US v. Olano.  Because insufficient evidence requires reversal when upholding the conviction would result in a fundamental miscarriage of justice, that standard is satisfied.
  3. The government did not prove materiality, which requires that the false statement have “a natural tendency to influence or be capable of influencing the decision of the decision making body to which it was addressed.”  While the agency need not necessarily actually rely on the false statement, it has to be of a type capable of influencing a reasonable decisionmaker.  Here, the judge who dismissed Johnson’s false praecipe testified that he generally relies on the docket in all his rulings.  The document was not even relevant to the proceedings here and the judge’s only act in relation to the document was to strike it from the docket.  That is not materiality, Matey rules.  The judge’s testimony about his general reliance on his docket established only relevance, not materiality.  Those are two different things.  And the fact that the praecipe was stricken is evidence it was false but not that it was material.  Matey rejects a new theory of relevance offered by the Government—that the statement was material because it caused the  clerk to file the document in the first place.  This theory was not considered by the jury and was unsupported by the record.
  4. The government’s failure to prove an essential element of an offense is generally a miscarriage of justice, and it is a miscarriage here. 

 The panel remands for the entry of a judgment of acquittal.

Court Affirms in Hard-Fought Appeal of Conviction in School Fraud Case

 In United States v. Shulick, Nos. 18-3305 & 19-1011 (Nov. 15, 2021), the Court affirmed Shulick’s convictions and sentences for conspiracy to embezzle, embezzling, wire fraud, bank fraud, false statements, and filing false tax returns, in connection with a for-profit business that provided alternative education to at-risk students in the School District of Philadelphia. He was sentenced to a total of 60 months’ imprisonment and three years’ supervised release, plus two $20,000 fines and restitution of $759,735 to the School District and $5,000 to PNC Bank.

Shulick alleged a speedy trial violation because the district court continued the case following the government’s late production of discovery for the stated reason of “case complexity,” when the actual reason was the government’s lack of diligent preparation. The Court distinguished Shulick’s claim from the case he relied on, United States v. Crane, 776 F.2d 600, 606 (6th Cir. 1985), in which the district court admitted to an inappropriate motive. Here, the case was indisputably complex, as evidenced by Shulick’s own requests for continuances to “wade through discovery materials,” which numbered in the millions of pages and derived from a multi-year investigation. The Court rejected Shulick’s request for a categorical rule that government discovery violations require dismissal, leaving any remedy to the district court’s discretion. And it found that Shulick failed to demonstrate here a “lack of diligent preparation,” where the government made a “one-time administrative mishap” which it “promptly admitted.” In evaluating Shulick’s request for Sixth Amendment relief, the Court found no prejudice, where trial was conducted within 18 months and Shulick did not demonstrate a lost witness had helpful testimony, nor why his attorneys failed to preserve it. The Court noted that the speedy trial guarantee does not apply to pre-indictment delay (here, Shulick alleged two years of preindictment delay).

The Court also reviewed several evidentiary rulings, relating to “agency” under 18 U.S.C. §666. Those litigating such cases will wish to review this aspect of the opinion more closely. For the rest, the opinion highlights both the importance of objecting in the trial court and the difficulty of the abuse of discretion standard on appeal. The Court also upheld the exclusion of expert testimony, because of the insufficiency of Federal Rule of Criminal Procedure 16(b)(1)(C) disclosure, holding that a “written summary” of expert testimony is more than a curriculum vitae and a short description of possible testimony. The Court held that describing an expert as a “summary” witness does not relieve counsel of the obligation to disclose opinions, bases, and reasons.

Finally, as to the convictions, the Court addressed instructional issues. Shulick raised two instructional concerns. First, he argued it is error to instruct that an intentional misapplication within the meaning of § 666(a)(1)(A) can be found even if the misuse of funds still benefited the victim. The Court disagreed, based on a careful reading of the statute’s terms, in which the disjunctive “or” suggests that an intentional misapplication of funds is a separate way of satisfying the statute, apart from the earlier prohibition on conversion which is subject to the limiting phrase about benefit to the victim. If not, the Court held, any error was harmless, because Shulick actually embezzled contract funds and used them for his own benefit. Second, Shulick argued it was error to refuse him a safe harbor instruction under § 666(c), which excludes from criminal liability salary, wages, fees, compensation, or expenses “paid or reimbursed, in the usual course of business.” The Court held that such an instruction was not supported by the evidence.

As to the sentence, the Court held that the loss amount was properly calculated under United States v. Nagle, 803 F.3d 167, 180 (3d Cir. 2015), and that Shulick failed to show he was entitled to specific offsets under United States v. Jimenez, 513 F.3d 62, 86 (3d Cir. 2008). For the same reasons, his restitution challenges failed. The Court held that it was not an abuse of discretion for the district court to supplement the sentencing record with a defense expert’s binder of materials. The Court accepted the district court’s view that the binder was material, having been relied on by the defense expert and referenced on cross-examination.

Thursday, October 28, 2021

A defendant cannot directly petition a court for compassionate release based on substantial assistance to bypass Rule 35(b)’s requirement that the government file a motion for sentence reduction exclusively on this ground

18 U.S.C. § 3582(c) provides various routes for a District Court to reduce a defendant’s sentence after sentencing. Subsection (c)(1)(A) permits courts, as modified by the First Step Act, to directly receive a defendant’s motion for compassionate release 30 days after he has requested such relief from his warden. This subsection requires consideration of the 3553(a) factors and a finding that “extraordinary and compelling reasons warrant such a reduction.”

Subsection (c)(1)(B) permits a sentence modification if “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Rule 35(b) only permits sentence reduction one year after sentencing based on a defendant’s substantial assistance upon the government's motion. 

In United States v. Claude, https://www2.ca3.uscourts.gov/opinarch/203563p.pdf, the Third Circuit held that a defendant may not use the compassionate release process to bypass Rule 35(b)’s requirement that the government bring a motion for sentence reduction based on a defendant’s post-sentencing substantial assistance in investigating or prosecuting another person. While a defendant cannot satisfy the “extraordinary and compelling reasons” standard for compassionate release based on his unilateral evaluation of his assistance, a District Court may consider such assistance in its compassionate release analysis. It can be “a relevant factor” just not serve as the only basis to establish extraordinary and compelling reasons.

Assault by a prisoner by “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease," as prohibited by 18 Pa. Cons. Stat. § 2703, is not a crime of violence under the career offender guidelines

 Under the career offender guidelines, a crime of violence is defined as the “use, attempted use, or threatened use of physical force.” U.S.S.G. § 4B1.1(a)(1). The “use of physical force” involves the “intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.” The qualifying physical force may be direct or indirect so long as it is “strong enough to constitute power,” and more than the “slightest offensive touching.” See United States v. Chapman, 866 F.3d 129 (3d Cir. 2017).

 In United States v. Quinnones, https://www2.ca3.uscourts.gov/opinarch/202709p.pdf, the Court determined that the least culpable form of assault by a prisoner under 18 Pa. Cons. Stat. § 2703 was not a crime of violence. In analyzing § 2703, the Court used the modified categorical approach because “certain elements of the statute fit within the definition of a crime of violence, while other alternative elements d[id] not.” United States v. Jones, 740 F.3d 127, 134 (3d Cir. 2014). The parties agreed that Quinnones was convicted of the statutory section of “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease. The Court then decided that “spitting or expelling fluid in their least culpable forms do not involve force for the purpose of § 4B1.2 because such acts are not capable of causing physical pain or injury.”

 This spitting a communicable disease offense is also not a crime of violence because it can be committed with recklessness or negligence. Section 2703 has two state of mind components. To violate § 2703, the actus reus must be performed knowingly or intentionally, a defendant must knowingly or intentionally cause another to come into contact with a fluid by engaging in certain specified acts, such as spitting. But the defendant only needs to have known or should have known that the bodily fluid came from someone with a communicable disease. “Should have known” embodies the standard for negligence and cannot be a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 9, 13 (2004).

 

Help us determine the future of the Third Circuit blog?

Greetings Blog readers,  We are trying to determine how this Third Circuit blog can best suit your needs.  If you have thoughts and suggesti...