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).

 

Friday, October 01, 2021

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

            Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Application note 11 further provides: “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

            In U.S. v. Denmark, 20-2267, 2021 WL 4127257 (3d Cir. Sept. 10, 2021), the Court held that physical proximity between drugs (or paraphernalia) and guns is only one of the four factors to consider in making the “clearly improbable” determination. 

              Here, the defendant acted as a middle man in arranging meth deals by video calls (from home), and by delivering meth packages to the post office.  Law enforcement recovered firearms and paraphernalia, but no drugs from his home.  The guns and paraphernalia were in different rooms on different floors.  At sentencing, the defense objected to the firearm enhancement, arguing that the firearms could not have been connected with the offense because the meth had never been at the residence.  He argued that for the enhancement to apply, the guns needed to be present at the crime of transporting the meth to the post office.

           The Court reviewed the “mechanics” of applying the enhancement as set forth in United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014).  The government must first prove, by a preponderance of the evidence, only that the defendant possessed the weapon. The burden then shifts to the defendant to “demonstrate that the connection between the weapon and the drug offense was clearly improbable,” with no burden on the Government to prove a relationship between the weapons and the drugs.  Rather, the “general rule” is that the enhancement should be applied if a firearm was present.  

          In determining whether it is clearly improbable that a weapon was connected with a drug offense, the Court looks to four factors, only one of which is proximity: “(1) the type of gun involved, with clear improbability less likely with handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether [it] was stored near the drugs or drug paraphernalia, and (4) [ ] whether [it] was accessible.”

          Although the district court failed to make express findings on whether defendant met the clear improbability standard, the Court found nothing in the record to dispel the presumption of a connection.  In the house were two handguns, a semi-automatic assault rifle, and a shotgun.  One handgun and several magazines were loaded.  Although there were no drugs in the house, law enforcement observed Denmark make a drug deal over FaceTime from his home.  Finally, the firearms were sufficiently accessible.  Because none of the four factors weighed in favor of the defense, application of the enhancement was affirmed.

(Case reviewed and post written by Christy Martin)


Monday, September 27, 2021

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines. So holds the Third Circuit in United States v. Scott, No. 20-1514, 2021 WL 4302516 (3d Cir. Sept. 22, 2021). Under Scott, Hobbs Act robbery is not a predicate for the career offender guideline, § 4B1.2(a), or its cross-referenced provisions, including the firearm guideline, § 2K2.1(a).

As Court-watchers will observe, Scott is far from breaking news. The opinion makes precedential a holding reached over two years ago in a not precedential opinion of a Third Circuit panel. Six other Courts of Appeals have held the same.

Scott should apply to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).

The outcome, however, is different under 18 U.S.C. § 924(c)(3)(A), which defines “crime of violence” slightly differently.  (Section 924(c) refers to force against “person or property”). Under § 924(c), Hobbs Act robbery is a crime of violence.  See United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021).

Walker notwithstanding, defendants should preserve an objection to Hobbs Act robbery as a § 924(c) predicate. This area of law remains unsettled pending a decision by the Supreme Court in United States v. Taylor (# 20-1459)—a case raising the question whether attempted Hobbs Act robbery is a crime of violence under § 924(c). The Supreme Court will hear argument in Taylor on December 7, 2021.

Finally, a note to appellate wonks: Scott granted relief on plain error review. Most importantly, the majority found that the Guidelines error was “plain” under prong two of the plain error test. Judge Phipps, dissenting, would have denied relief on prong two.

Wednesday, August 25, 2021

Limited waiver of Miranda rights invalidated when a defendant raised the subject he initially stated he did not want to discuss during his interrogation

 

U.S. v. James Eugene Rought, ___F.3d ___, No. 20-2667 (3d Cir. 8/24/2021

 

This opinion does not answer defense attorneys’ eternal question, “Why can’t they just shut up?” but gives the unsurprising answer when they don’t. 

 

The defendant twice sold fentanyl to a Mr. Carichner; a transaction witnessed by a Ms. Giberson. A few days later Giberson asked Carichner to get her fentanyl from the defendant. He defendant sold it to him and the two imbibed together. Later. Carichner gave some of the fentanyl to Giberson. Later that night, Giberson overdosed but was revived with Narcan. Carichner overdosed later that evening and died. 

 

Police connected the defendant to the crimes, and he was indicted for distributing and possessing fentanyl with intent to distribute resulting in serious bodily injury and death. Before his initial appearance the FBI spoke to him. The defendant signed a Miranda waiver but after freely answering questions for several minutes orally stated he did not want to speak about Carichner’s death. The agents moved to different topics, but the defendant on his own brought up Carichner’s death by saying the agents were trying to pin it on him. The agents used that opening to go into Carichner’s death and obtain incriminating statements. 

 

The defendant’s motion to suppress the statements about Carichner was denied and a jury convicted him of the death and other crimes charges in a superseding indictment.

 

On appeal the defendant first maintained that all questioning should have ceased when the defendant said he did not want to talk about Carichner. The panel rejected that contention, describing a line of cases that allow a limited waiver of Miranda rights. The defendant however only made a “limited invocation” of his right to remain silent, and the agents honored up to the point he brought up Carichner by accusing the agents of setting him up for the death.  

 

The panel also rejected the defendant’s contention that he did not bring up Carichner’s death. Accusing the agents of trying to place blame for the murder for him was enough to allow the agents to discuss the matter. The accusation occurred during a conversation between the defendant and the agents on the poor state of Wilkes-Barre due to the drug trade. That initiated a discussion about how drugs and drug dealers were haring the community subject the defendant had previously asked be excluded from the interrogation, and the agents were free to pursue the subject. The panel acknowledged an appeal to the defendant’s conscience might elicit a response about Carichner’s death, but it refused to impute such motivation or foreknowledge to the agent who made the comment.  

 

Finally, the panel peremptorily rejected the defendants’ contention that the waiver was invalid because he did not see all the potential consequences. A defendant does not have to know every possible consequence of a waiver of his right to remain silent. 

 

In short, a defendant can make a limited waiver of Miranda rights, but if in conversation with law enforcement he in any way raises the topic he wanted to avoid, he voids his waiver, and law enforcement can continue to question him unless he reinvokes his right to remain silent. 

 

Judge Roth dissented, being of the view that the agents tricked the defendant into invalidating his limited invocation of Miranda rights.  

 

 

 

Saturday, August 21, 2021

Miller does not preclude sentencing juvenile offender to de facto life in prison without parole, even if he is not "incorrigible."

The en banc decision in United States v. Grant, No. 3820, https://www2.ca3.uscourts.gov/opinarch/163820pen.pdf, -- F.4th ----2021 WL 3611764 (Aug. 16, 2021), considers whether, under Miller v. Alabama, a juvenile offender may be sentenced to de facto life without parole, even when all concede he is not incorrigible. Those practicing in this or related areas will want to give Grant a close read, but we summarize the issues here. For appellate practitioners, note the discussion of preservation and plain error related to the sentencing package doctrine—all issues seen in more ordinary cases.

Despite the multiple opinions here, the Court unanimously affirms Grant’s sentence under Miller. The majority holds that Miller guarantees only a “sentencing process” under which the sentencer has discretion to impose a lesser punishment based on the offender’s youth at the time of the offense. Since Grant received that process, the Court affirms his newly imposed 65-year sentence, even though it incarcerates him to his life expectancy. To reach this conclusion, the Court contrasts the Miller opinion with the categorical bars in Roper and Graham and the Supreme Court’s recent decision in Jones v. Mississippi, which—like Miller—emphasized “discretionary sentencing procedure.” The Court observes that the sweeping language of Montgomery v. Alabama, which made Miller retroactive to cases on collateral review, did not expand Miller’s holding.

The Court notes, citing Jones, that although there is no guaranteed outcome for juvenile homicide offenders. “If a sentencer imposes de jure or de facto LWOP after finding—gratuitously—that a defendant is corrigible, the vehicle for challenging the sentence is an as-applied Eighth Amendment claim, based on disproportionality of the punishment to the crime and criminal.” Grant had not pursued such a challenge. Grant’s complaint that the sentencing judge failed adequately to explain the de facto life sentence vis-à-vis Miller was dismissed by the Court, since the sentencing judge considered Grant’s youth and related factors in mitigation. The Court emphasized that no specific script is required and that consideration may be brief.

The Court found that Grant failed to preserve a sentencing package doctrine argument to vacate and reconsider concurrent sentences (the district court had resentenced Grant only on the two RICO counts involving the homicides). Counsel missed the mark by pitching this as required by “the spirit of Miller,” instead of the sentencing package doctrine. To preserve an argument, counsel must have raised the same argument, not merely an issue that encompasses the appellate argument. On plain error review, the Court held that the law did not clearly require de novo sentencing when certain sentences (as opposed to convictions) are vacated.

Judge Hardiman (joined by Jordan, Bibas, and Porter) writes a concurrence discussing the problems with the Eighth Amendment “evolving standards of decency” test applied in Miller, which he believes displaces the text of the Bill of Rights in favor of a “nebulous test” that gives judges unbounded discretion.

Judge Greenaway (joined by Restrepo) writes a concurrence arguing that Jones is not helpful in this case because it doesn’t resolve what happens when—as happened here—a judge makes an affirmative finding that an offender is “corrigible.” He explains how Miller, Graham and Montgomery require evaluation whether an offender has a “meaningful opportunity to obtain release” and what that entails. (Judge Krause joins for this part only.) He concludes the evidence presented at Grant’s sentencing established a meaningful opportunity to obtain release.

Judge Ambro (joined by Mckee) concurs in part and dissents in part. Judge Ambro believes that Jones overruled Miller and Montgomery as to the guarantee of meaningful opportunity for release. He dissents (and Restrepo joins him and McKee for this section) on the sentencing package issue. He finds the issue preserved by counsel’s statement that the sentences were “all part and parcel of one sentence” and that “it should be clear that really it is a whole knew sentencing,” which alerted the sentencing judge to the substance of the sentencing packaging doctrine argument. The sentencing judge appeared to understand the argument, as well. He finds no reason to distinguish between convictions and sentences under the doctrine. Because it is unclear whether Grant got a full resentencing, he would have remanded.

Tuesday, August 17, 2021

Rebuttable presumption that firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

In United States v. Lesandro Perez,  https://www2.ca3.uscourts.gov/opinarch/191469p.pdf, Appeal No. 19-1469, --- F.4th ---, 2021 WL 3087672 (3d Cir. July 22, 2021), the Third Circuit created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

Perez sold two firearms to an undercover officer. During the transaction, the undercover officer observed drugs and drug paraphernalia. Perez pled guilty to sales of guns and drugs. At sentencing, the District Court applied the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm…in connection with another felony offense.” When the other felony offense is drug trafficking, Note 14(B) creates a special rule that the enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” § 2K2.1 cmt. n.14(B). The enhancement raised the guideline range from 84 to 105 months to 121 to 151 months.

Perez argued the enhancement did not apply because he possessed the firearms to sell them, not in connection with a drug-trafficking offense. He further argued that 2K2.1(b)(6)(B) itself is unambiguous and therefore should be controlling rather than the Guidelines’ commentary, Note 14(B). The Third Circuit reversed because the District Court was under the false impression that the enhancement was automatic, but disagreed that the guideline was unambiguous.

First, the Third Circuit decided the commentary here deserved deference. Under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a court should afford deference to the Guidelines’ Commentary when (1) the Guidelines’ language is ambiguous, (2) the Commentary itself is reasonable, and (3) the character and context of the Commentary entitle it to controlling weight.

(1)   Here, the phrase “in connection with” is notable for its vagueness: the Sentencing Commission added Note 14B precisely to address a growing conflict among circuits about whether that language encompassed cases in which the firearm’s presence was merely accidental or coincidental.

(2)   Note 14B was reasonable based on Supreme Court and Third Circuit precedence. In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court clarified that the defendant’s use of the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. In United States v. Loney, 219 F.3d 281 (3d Cir. 2000), the Third Circuit held that the “in connection with” requirement would exclude situations in which “the presence of the gun was merely ‘accidental,’ had no ‘purpose or effect with respect to’ [the defendant’s] drug offense, or did not ‘facilitate or have the potential of facilitating’ [the defendant’s] drug dealing.”  In United States v. West, 643 F.3d 102 (3d Cir. 2011), the Third Circuit held that “in a simple possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating possession of the drugs.” 

      Thus, “physical proximity alone may be insufficient in some cases” to establish that the firearm had the potential to facilitate drug activity and (2) the Guideline excludes those cases in which the firearm’s presence is “the result of accident or coincidence.” The Court concluded that the Note incorporates certain “boundaries” laid out in Smith, and those boundaries require a relationship between drug-trafficking activities and firearms under Loney. Hence the enhancement does not apply merely because Perez possessed firearms and drugs together in the same room.

Then the Court created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items. A defendant may present evidence that the firearm had no relationship to drug-related activities and thus did not have the potential to facilitate a drug-trafficking offense. This Court rejected dicta from other Circuits that the enhancement “necessarily” or “automatically” applies when drugs and guns are physically near each other, as contrary to Loney and an  impermissible “expan[sion of] the substantive law set forth in the [G]uidelines themselves.” Here, because Perez was not given a chance to prove that the firearm’s presence was mere accident or coincidence (rebutting the presumption), the Third Circuit vacated the District Court’s judgment and sentence and remanded for the Court to reconsider whether there was a relationship between Perez’s firearms and his drug-trafficking activities.

Judge Bibas issued a concurring opinion that Note14B is invalid as written because it substitutes proximity for a connection to a drug crime. He criticized the majority for “misreading the Note to create a rebuttable presumption and then defers to its own creation.” The rebuttable presumption creates problems by putting the burden of proof on the defendant, forcing him to disprove a connection between the gun and the drugs. (1) The burden is on the government to prove, by preponderance of the evidence, that possession of gun was “in connection with” drug offense, (2) the “in connection with” element may be proved by way of inference, but (3) advancing a valid inference is part of the government's burden of proof.

 

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 J...