Monday, December 21, 2009

Intentional 45 month delay in bringing defendant to trial violated defendant's Sixth Amendment speedy trial rights

In a rare reversal of a district court's speedy trial decision, the Third Circuit in United States v. Battis, 08-2949 (3d Cir. December 14, 2009), concluded that the government's intentional 45 month delay in bringing the defendant to trial violated the defendant's Sixth Amendment right to a speedy trial. The Court reversed the district court's judgment denying defendant's speedy trial motion and remanded the case with instructions to dismiss the indictment and vacate the defendant's conviction.

The case arose out of a bar fight in Philadelphia. The defendant, Germaine Battis, was arrested by Philadelphia police for, among other things, illegally possessing a firearm. He was arraigned in state court on January 20, 2004. One month later, on February 24, 2004, Battis was indicted in federal court for possession of a firearm by a convicted felon. A federal bench warrant was issued as a detainer because Battis was in state custody, but the detainer was never formally filed. Battis was not arraigned in federal court until November 2, 2006. In the interim, state officials were waiting for the federal government to proceed with its case, while federal prosecutors intentionally delayed prosecution in order for the state court case to proceed against Battis. It was not until September 18, 2006, when the state court dismissed the state charges against Battis on speedy trial grounds, that federal prosecutors finally began to proceed with their case.

Battis filed a motion to dismiss the federal case on speedy trial ground, but the motion was denied by the district court. His case proceeded to trial and he was ultimately convicted of being a felon-in-possession. On June 23, 2008, he was sentenced to 120 months imprisonment. On appeal, the Third Circuit weighed the four Barker v. Wingo, 407 U.S. 514 (1972) constitutional speedy trial factors anew and determined that Battis's constitutional speedy trial rights had been violated. First, the Court calculated the length of the delay as 45 months, measured from the date of the federal indictment through the beginning of the trial. The Court affirmatively ruled that a defendant's arrest on related state charges does not trigger the speedy trial protection for a subsequent federal charge. The length of this delay was more than sufficient to trigger speedy trial protection. Second, the reason for the delay, weighed against the government. The Court found that the government’s justification, deference to the state’s interest in prosecution, failed in this case because while an "initial delay to allow the state to proceed may have been valid, there came a time when the federal Government should have taken some action to proceed in light of the state authorities' inaction."

The third factor, whether defendant asserted his speedy trial right, weighed in the defendant’s favor. The Court noted that Battis notified authorities on four occasions that he wanted his federal case to proceed, and addressed three requests for a speedy trial to the court. Notably, federal counsel made a request within weeks of being appointed. Finally, the Court held that "prejudice will be presumed when there is a forty-five-month delay in bringing a defendant to trial, even when it could be argued that only thirty-five months of that delay is attributable to the Government" and that in this case the government was not able to rebut this presumption. Battis's preparation for the state case during the delay did not alleviate any prejudice even though the charges in the state case were based on essentially the same facts as the federal charges, as this did not address the reason for presuming prejudice-that the delay undermines the basic reliability of the trial and the concerns of Battis's counsel in the two cases, and their resulting investigative efforts, would necessarily have been different. Moreover, the threat to the reliability of a trial is especially high where, as here, the delay results in the defendant's not being appointed counsel for three years after indictment.
The Court thus concluded that Battis was presumptively prejudiced by the delay, that all four factors of the Barker test weighed against the government, and that Battis was unconstitutionally deprived of his right to a speedy trial.

Congratulations to the Defender Association of Philadelphia's Federal Court Division on this tremendous win!

Friday, December 04, 2009

Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well

The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served. The Court had previously so held in U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007). But in Manzella, rehabilitation was the only justification given, whereas the district court in Hoffa cited rehabiliation as well as incapacitation. The Court saw no distinction, holding that the plain meaning of 3582(a) prohibits the use of rehabiliation as "a factor" in imprisonment descisions.

The Court again pointed out, as it did in Manzella, that rehabiliation can play a role in fashioning the overall sentence (including probation/release conditions, program recommendations during imprisonment, etc), but just not in determining the fact or length of any imprisonment portion of the sentence.

Sunday, November 22, 2009

PA Simple Assault = crime of violence under knowing/intentional part of statute

In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v. Begay, 128 S. Ct. 1581 (2008). But the Court did rule that simple assault committed knowingly or intentionally does qualify as a crime of violence. It remanded for a resentencing hearing at which the district court is to determine whether Johnson’s prior conviction for simple assault was for the part of the statute charging knowing and intentional conduct, as opposed to reckless conduct.

Johnson was charged with being a felon in possession of a firearm. At sentencing, the Court enhanced the guidelines range by counting Johnson’s prior simple assault conviction as a "crime of violence" under USSG § 4B1.2(a)(2). The Third Circuit in US v. Dorsey, 174 F.3d 331 (3d Cir. 1999), had ruled the simple assault does qualify as a crime of violence, even though the offense can be committed recklessly.

On appeal, the Circuit, in a lengthy footnote, explained that under Begay, only "purposeful, violent and aggressive" conduct can count as a crime of violence. This "suggest[s] that a crime committed recklessly is not a crime of violence," as nearly every other Circuit has already held. The government on appeal conceded the issue, explaining that the Department of Justice position now is that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence." Thus, the government conceded that Dorsey is no longer good law in light of Begay.

Normally such a concession would make the Court’s resolution of the issue easier. But here, for reasons that are not made clear in the opinion, the Court took the government’s concession as a reason not to resolve the issue. Instead, the Court ruled that knowing or intentional simple assault would qualify as a crime of violence, and it remanded to the district court to determine under the "categorical approach" whether Johnson’s conviction was under this part of the statute. If not, then in light of the DOJ’s concession, the prior conviction as reckless simple assault cannot count as a crime of violence. The Court made clear that this categorical determination is not a factual one but instead solely a question of what part of the statute Johnson actually pled guilty to: "[W]hat matters is the mens rea to which Johnson actually pleaded guilty," and not the facts in the Presentence Report suggesting the conduct was intentional.

Most likely, the Court’s reason for not expressly resolving the recklessness issue is because the same issue is currently pending in two other cases before the Court, and this panel wanted to leave the issue for resolution in one of those cases.

Thursday, November 05, 2009

For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U.S.C. § 371 in two separate jurisdictions for the conduct underlying this fraudulent scheme. Specifically, in 2002, the Southern District of New York indicted the defendants for conspiracy to commit an offense against the United States, namely securities fraud, based upon their misuse of corporate funds for personal expenses. In 2005, the Middle District of Pennsylvania charged the defendants with conspiracy to defraud the United States via income tax evasion, based upon their failure to pay income tax on monies they illegally obtained from Adelphia. The defendants argued that the Pennsylvania indictment violated their rights under the Fifth Amendment’s Double Jeopardy Clause. Relying upon Blockburger v. United States, 284 U.S. 299 (1932), the Third Circuit joined the majority of circuits to rule that 18 U.S.C. § 371 proscribes one offense which may be committed two ways. (Judge Rendell in dissent, however, relied upon Blockburger to find that § 371 creates two separate offenses.) The court also reiterated that the Clause prohibits the government from splitting a single conspiracy into several prosecutions. Citing United States v. Liotard, 817 F.2d 1074 (3d Cir.1987) and United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the court ultimately remanded the case to allow the lower court to determine whether the defendants entered into two separate agreements or only one.

The defendants also challenged the Pennsylvania prosecution for the substantive counts of tax evasion on grounds of collateral estoppel. Specifically, the defendants argued that, since the New York jury found them not guilty of some of the wire and bank fraud counts, the jury must have believed that the monies obtained by the defendants from Adelphia were loans and not income. However, the court recognized that the New York jury acquitted the defendants on only a few of the enumerated transactions. Consequently, the government could prosecute the defendants in Pennsylvania for tax evasion in relation to the remaining transactions.

Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty

The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for “honest services” fraud under 18 U.S.C. §§ 1341, 1343 and 1346. The defendants ran the Ben Franklin Technology Center (hereinafter “BFTC”). The purpose of BFTC was to administer funds provided by the Commonwealth of Pennsylvania for other organizations in an effort to foster the development and commercialization of new technology. One of BFTC’s clients during the course of this fraudulent scheme was the U.S. Navy. The government indicted the defendants for defrauding BFTC of their honest services by misusing BFTC funds for personal expenditures and thwarting the efforts of subordinate employees to investigate their actions. The indictment also charged the defendants with depriving the U.S. Navy of the honest services of BFTC. In essence, the government sought to extend the honest services fraud theory to non-public officials. The court ultimately concluded that both public and private officials owe a fiduciary duty to the public. Specifically, the court determined that, as public officials owe a duty to protect the common good, private officials have a duty of protection as well, albeit a duty that is based primarily upon economic concerns. The court concluded that the defendants owed a fiduciary duty to BFTC by virtue of their status as corporate officers. The court ultimately ruled that this fiduciary duty could serve as the basis for the charge of honest services fraud under 18 U.S.C. §§ 1341, 1343 and 1346, where the defendants were charged with executing a fraudulent scheme which breached this fiduciary duty and deprived BFTC of their honest services.

However, the court ruled that, while the indictment sufficiently alleged that the defendants committed honest services fraud against BFTC, the indictment did not sufficiently charge that the defendants committed honest services fraud against the U.S. Navy. Unlike BFTC, the defendants’ relationship with the Navy did not create a fiduciary duty. To the contrary, the relationship between the defendants and the Navy was merely contractual. The court ruled that the government must allege more than a breach of contractual obligations in order to charge a non-public official with honest services fraud.

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court’s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1.3. Prior to 2003, the Third Circuit had interpreted U.S.S.G. § 4A1.3 to permit a downward departure from a defendant’s career offender status if the court found that the career offender designation over-represented his criminal history. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit had ruled that, in the absence of a definition for the term "departing" as used in § 4A1.3, this section permitted a downward departure to both the criminal history category as well as the offense level. However, in 2003, the Sentencing Commission amended § 4A1.3 to provide a specific downward departure where the defendant’s criminal history category substantially over-represents the seriousness of his criminal history or his likelihood of recidivism. The 2003 amendments also provided a definition of the term "departure" as used in the amended version of § 4A1.3. Pursuant to the 2003 amendments, § 1B1.1 now provides a definition of the term "departure" that specifically addresses the downward departure provided in § 4A1.3. The definition provided in the current § 1B1.1 for the term "departure" as used in § 4A1.3 addresses only the assignment of the criminal history category. The court in Grier concluded that the 2003 amendments superseded Shoupe.

Also, the government had argued that Shoupe was no longer good law after United States v. Booker, 543 U.S. 220 (2005) and United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The court, however, concluded that Shoupe was not impacted by Booker and Gunter because a consideration of Shoupe departures falls squarely within Step Two of the three-step process mandated by Booker, namely, formally ruling on any departure motions.

Wednesday, October 21, 2009

Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same. The Court affirmed the convictions of the organization, Stop Huntingdon Animal Cruelty ("SHAC"), and six individuals charged: the President of SHAC, the Campaign Coordinator for SHAC, the web creator/manager for SHAC, the Seattle branch manager for SHAC, a SAC activist who coordinated protests, and a SHAC Huntingdon campaign organizer in NJ.

A complete recitation of the facts from the Court’s 60-page opinion is not possible here. In brief: Huntingdon Life Sciences is a research corporation that performs testing for companies bringing products to market. Its labs use animals as test subjects. After animal abuse inside a Huntingdon lab in England was documented in the late 1990s, animal rights organizations began targeting the company. One of those organizations was Stop Huntingdon Animal Cruelty - UK ("SHAC-UK").

In the wake of an a brutal assault on its Managing Director by a member of SHAC-UK, Huntingdon relocated its financial base to the United States, where laws better protected the confidentiality of its shareholders, whom SHAC-UK had begun to target in the England. When a Huntingdon branch opened in New Jersey, SHAC formed a branch there, as well.

SHAC targeted Huntingdon, companies that were involved with Huntingdon, and people who worked for both Huntingdon and the affiliated companies. Its primary tool was its website, through which members coordinated protests. It posted the names, home addresses and home phone numbers of employees on the website. The web-page also included pages describing: (1) upcoming "direct action" – protests such as the activities at issue in this case; (2) previous "accomplishments" – for example, acts of vandalism committed by protesters; (3) "top 10 terror tactics," like smashing windows and firebombing cars; (4) how to evade investigators through techniques like encryption; and (5) "electronic civil disobedience" – such as inundating websites with email to crash servers or using "black faxes" to exhaust toner. The government’s evidence showed the cyberattacks cost Huntingdon $400,000 in lost business, $50,000 in staffing costs for repairs, and $15,000 in computer replacement costs.

Constitutionality of the AEPA: Void for Vagueness: The AEPA prohibits travel in interstate commerce or use of the mail or other facility in or interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise that intentionally damages or causes the loss of property used by the animal enterprise (or conspiracy to do so). Defendants argued that the terms "economic damage" and "physical disruption" were not clearly defined," and included activities protected by the first amendment. The Court rejected these arguments because (1) "physical disruption has a well-understood common definition; (2) legal protest, such as letter-writing, which might cause an ancillary physical disruption is exempted from the statute; (3) defendants’ behavior – including encryption, evasion techniques, and even concessions on the website that some activities were illegal – suggests they knew their activities were illegal; and (4) the "intent" requirement means that the government must establish that the actor meant to disrupt the functioning of the enterprise, which alleviates vagueness concerns (citing Gonzales v. Carhart, 550 U.S. 124, 149 (2007)).

As-Applied Constitutional Challenge to AEPA: All parties agreed that, to the extent they advocated humane treatment of animals, the postings on the website fit within the rubric of the First Amendment. The question was whether they were directed to inciting or producing imminent lawless acting and likely to produce such action. Put differently, did they constitute a "true threat." Much of the speech did not. But the Court found the postings encouraging electronic civil disobedience and the dissemination of the personal information of Huntingdon employees was "more problematic."

Regarding the electronic civil disobedience, the Court held that the postings "encouraged and compelled an imminent unlawful act that was not only likely to occur, but provided the schedule by which the unlawful act was to occur. This type of communication is not protected speech." It found "ample evidence" to demonstrate that the individual defendants coordinated and controlled and participated in such activities.

Regarding dissemination of names and protests against target employees, the Court held that the defendants used past incidents to instil fear in future targets. For example, using photos of assault victims at protests. Viewed in context, the implied threats against target employees were not conditional and rightly instilled fear in the listeners, converting them to "true threats." The Court gave examples of particular instances in this category involving each defendant.

Definition of "Animal Enterprises": Defendants argued that the protest activity against companies associated with Huntingdon was not directed at "animal enterprises." The Court disagreed, finding that the "ultimate object" of the conspiracy was Huntingdon.

Actual v. Intended Loss: Defendants argued that the district court erred in instructing the jury that it could convict them for intended loss. The Court did not decide this issue, instead finding that any error would have been harmless because the government proved an actual loss in excess of the statutory threshold.

Sufficiency of Evidence/Conspiracy: Defendants challenged the sufficiency of the evidence to prove that they acted for the purpose of causing physical disruption to Huntingdon and to intentionally damage or cause the loss of Huntingdon’s property. The Court conceded that there was no direct evidence to prove a conspiracy between the defendants, but found "ample circumstantial evidence from which the jury could have inferred their agreement," to accomplish these unlawful goals. Judge Fisher dissented on this point, noting "I fail to see any evidence of an agreement to cause physical disruption to Huntingdon – as opposed to other non-animal enterprise companies affiliated with Huntingdon – or to cause damage or loss to property used by Huntingdon.

Stalking: The defendants also challenged their stalking convictions. One argued that he only intended to harass and embarrass the victims and make their lives miserable. He contrasted this type of infliction of emotional distress with the statute’s requirement that he intend to put his victims "in reasonable fear of death or bodily injury." The Court found that the invocation of the the website’s references to extreme acts of violence, coupled with protesters' use of ultimatums, went beyond harassment and embarrassment. Another defendant argued that the victims’ fears were unreasonable. The Court dismissed this argument for the same reason, adding that this particular defendant had personally threatened to burn one victim’s house down. The web administrator argued that the evidence was insufficient to convict him of any stalking-related counts. The Court found that the jury could reasonably have concluded that he aided and abetted the stalking because the website was a primary tool in it.

The Court also summarily rejected a variety of other challenges in this complicated and hard-fought case.

Tuesday, October 13, 2009

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.

(1) Federalism Challenge

Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requisite federal interest element, nor states any basis for its enactment beyond the Chemical Weapons Convention. On appeal, Bond asserted that 18 U.S.C. § 229 violated constitutional principles of federalism because it was not based on a valid exercise of congressional authority, it did not require proof of a federal interest, it was vague and overbroad, and it failed to provide fair notice of the conduct covered by its terms.

The Third Circuit, in United States v. Bond, No. 08-2677, declined to reach the merits of Bond's federalism challenge to Section 229 because it concluded that private parties lack standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties. The Court also rejected Bond's vagueness claim, finding that, while the terms of Section 229 were certainly broad, a person of reasonable intelligence would know that Bond's conduct violated the statute and that the statute cast a wide net for obvious safety reasons and did not criminalize protected activities outside the permissible bounds of Congressional regulation.

(2) Appropriateness of "Special Skill" Sentence Enhancement

Bond also challenged a two-level sentence enhancement for use of a special skill. The Third Circuit affirmed the district court's application of the enhancement, finding that Bond's advanced degree in microbiology, her training in the development and application of biocides, and her position at a chemical manufacturing company, where she could research and steal chemicals unavailable to the public, all supported the enhancement. Bond's background and training facilitated her handling and deployment of the chemicals in a fashion thought to be most lethal and influenced her decision to use toxic chemicals as her weapon of revenge. Accordingly, the Third Circuit affirmed application of the special skill enhancement.

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count. On appeal, the Government conceded that Cesare improperly received concurrent sentences in violation of double jeopardy because bank robbery is a lesser included offense of armed bank robbery, but argued that the two separate $100 special assessments be left intact because special assessments are not punishment.

The Third Circuit, in United States v. Cesare, No. 08-2749, disagreed with the Government's position regarding the special assessments, holding that the entry of separate convictions, including separate special assessments, threatened the defendant with "potential adverse collateral consequences." As such, the two separate special assessments constituted impermissible double punishments offending double jeopardy. Accordingly, the Third Circuit remanded this matter to the district court with instructions to vacate the defendant's armed robbery conviction.

Monday, October 05, 2009

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – properly calculated defendant’s offense level as 23 and criminal history category as I, yielding a Guidelines sentencing range of 46 to 57 months' imprisonment. Then, in Gunter step two, the District Court granted the Government’s 5K1.1 one-level downward departure motion: that reduction yielded a Guidelines range of 41 to 51 months' imprisonment. The District Court imposed a sentence of 48 months: at the upper end of the custody range that included the one-level departure, but also within the original, pre-departure custody range. Defendant did not object to the sentence.

On appeal, defendant argued that he was entitled to re-sentencing because the District Court committed plain error by imposing a sentence that was two months higher than the bottom of the original pre-departure Guidelines range, without any indication that it was applying an upward variance under 18 U.S.C. § 3553(a). Defendant argued that the District Court erroneously failed to give effect to the one-level departure that it granted when it imposed a sentence above the bottom of the pre-departure Guideline range.

The Third Circuit agreed. First, at Gunter step two, the District Court was required to calculate a sentence below the bottom of the otherwise applicable Guidelines range by U.S.S.G. § 1B1.1, cmt. n.1.E (defining downward departure as a "departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence."). Quoting its earlier decision in United States v. Floyd, 499 F.3d 308, 312-13, the Court ruled that when a district court grants a downward departure, the sentence it imposes "must be less than the bottom of the otherwise applicable Guidelines range." Here, where the post-departure 41 to 51 months Guidelines range overlapped with the original pre-departure 46 to 57 months Guidelines range, the District Court’s Gunter-step two calculation required a sentence less than 46 months. The District Court could have imposed a 48-month sentence only if the District Court explicitly supported an upward variance in reliance on the § 3553(a) sentencing factors– but the District Court did not do so here.

The Court further held that this sentence was plain error, because the Guidelines definition of "downward departure" was unequivocal, and clearly explicated in Floyd. The Court further held that this error was prejudicial because it was unclear whether the District court intended to vary the sentence upwards, or whether it failed to realize that it did not give defendant the benefit of the departure that it had granted. Significantly, the Court emphasized that "very few procedural errors by a District Court will fail to be prejudicial, even when the Court might reasonably have imposed the same sentence under the correct procedure. . . . [and] an error of procedure is seldom harmless."

Tuesday, September 29, 2009

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts.

Both Starnes and George were prosecuted for asbestos related Clean Air Act violations and for related false statement violations. Both proceeded to trial by jury and, at its conclusion, moved for judgement of acquittal. Those motions were denied and each was convicted.

On appeal, the defendants first argued that the District Court erred in denying their motions for judgement of acquittal. The Court of Appeals, in reviewing the decision to grant or denya motion for judgement of acquittal exercised plenary review.

Starnes argued, as to the Clean Water Act violations, that the Government failed to present sufficient evidence that he was the "owner or operator" within the meaning of the statute. Third Circuit disagreed stating that in a civil enforcement proceeding, a "non-owner operator" is liable under the act "if he or she has ‘significant or substantial or real control and supervision of a project’" and that there is no difference in the criminal context. That based on the record, there was substantial evidence that Starnes "exercised significant control and supervision" over the project and that was sufficient to survive the motion for judgement of acquittal.

Second, Starnes and George both argued that the District Court erred in denying their motions for judgement of acquittal on the false-statement counts. Specifically that the Government’s evidence was insufficient as to "falsity" or "federal-government jurisdiction" - both necessary elements of a false statements violation. The Third Circuit quickly dismissed the arguments as to "falsity" indicating that both defendants arguments rested on the faulty premise that the defendants were charged and convicted of falsely representing the amounts of asbestos in the air samples taken from the site. To the contrary, the Government’s evidence was that the samples weren’t analyzed at all - a fact that went uncontested. As a result, the evidence was sufficient as to "falsity."

As to "federal-government jurisdiction" both defendants argued that the federal government lacked jurisdiction because the reports were sent to the Virgin Islands Housing Authority (VIHA), which wasn’t a federal agency. The Third Circuit quickly dismissed this claim as well stating that it’s enough that the statement pertains to a "matter in which the executive branch has ‘the power to exercise authority.’" In other words, the fact that the VIHA was funded by HUD was enough to satisfy "federal government jurisdiction."

George alone argued that the district court erred in denying his motion for judgment of acquittal on the false statement count because, as he put it, the Government failed to demonstrate that he had the "specific intent" to violate the false statements statute. The Third Circuit rejected this argument as well. In doing so, the Court noted that the statute identified the mens rea as "knowingly and willfully" rather than "specific intent." The Court was not willing to decide whether "specific intent" was "shorthand" for "knowingly and willfully." Rather, the Court chose to focus on the generally accepted definitions of "knowingly" and "willfully" and applied them to the statute at hand. The Court concluded that "knowingly" requires the Government to prove the defendant had "knowledge of the facts that constitute the offense." With analysis, the Court of Appeals eventually concluded that "willfully," as it is applied to the false statements context (§ 1001), requires the Government to prove the defendant had "knowledge of the general unlawfulness of the conduct at issue." Based on these standards, the evidence presented was sufficient to survive the motion for judgment of acquittal.

Third, both defendants challenged the district court’s decision to admit the testimony of a witness, David Dugan. The decision to admit or exclude evidence was reviewed for abuse of discretion. Dugan testified regarding asbestos samples he collected which had high levels of friable asbestos. The district court ruled his testimony was relevant to demonstrate dangerous levels of friable asbestos that were likewise present in buildings worked on by the defendants. The defendants, in turn, argued that the district court’s decision to admit this testimony was an abuse of discretion because the witness collected samples from a building they didn’t work on and his collection occurred at a much later date than the events that led to their prosecution. Again, the Court of Appeals disagreed with the defendants because the Government demonstrated that all of the buildings in the complex (including the ones worked on by the defendants and the one in which Dugan collected samples) were made of the same materials and had no structural changes - therefore a reasonable inference could be made that the buildings worked on had dangerous levels of asbestos. Consequently, the testimony was deemed admissible under FRE 401 and 402. Additionally, the Court of Appeals summarily rejected the argument that the testimony of Dugan was inadmissible under FRE 403 because there was no demonstration of "unfair prejudice."

Finally, both defendant’s appealed the district court’s determination of their sentences. The review of the district court’s sentencing decisions was for reasonableness under a deferential abuse of discretion standard. And as the Court of Appeals put it, these arguments were "readily dispatched." (FISHER, JORDAN, and STAPLETON, opinion by FISHER).

Monday, September 28, 2009

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris’ motion to vacate an order of civil contempt.

Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents. Following his indictment, he and his co-conspirators filed bogus financial documents that purported to create liens against the judges and prosecutors in their cases. The Government moved for a restraining order, which was granted. Despite the restraining order, the conduct of Harris and his co-conspirators continued.

A show cause hearing was held, at the conclusion of which, Harris and his co-conspirators were held in civil contempt and ordered to be incarcerated until they stopped the activity involving the bogus financial documents. Harris’ co-conspirators ceased the activity - Harris did not. Consequently, his incarceration on the contempt order began thereafter in April of 2004. Several months later, Harris went to trial on the underlying federal charges and was convicted on all counts. He was sentenced to 188 months imprisonment.

Still, after the conviction, Harris continued to send out bogus financial documents - as a result, he remained incarcerated on the civil contempt order for the past 5 years, which has tolled the commencement of his 188 month term of imprisonment.

In 2007 Harris filed a pro se motion with the District Court arguing the lack of jurisdiction of the federal courts - the District Court interpreted the motion to be one requesting the termination of the civil contempt sentence. That motion was denied in 2008.

On appeal, Harris argued that the contempt order was a de facto order of criminal contempt (rather than civil contempt) and therefore argued that it must be lifted for two reasons: 1) that the district court cannot continue to hold him after the termination of his initial criminal proceeding; and 2) that due process provides a temporal limitation on the district court’s contempt authority. The Third Circuit rejected both arguments.

As to the first argument, the Court of Appeals held that the termination of the underlying proceeding did not render the contempt order moot - rather, the contempt order remains ripe until and when Harris ceases to harass the judges and prosecutors. Therefore the decision to deny the motion to vacate was not an abuse of discretion.

As to the second argument, the Court of Appeals refused to adopt Harris’ argument that his case was analogous to that of the recalcitrant witness who refused to testify - that the continued incarceration of one where there is "no substantial likelihood" they will ever comply, should cease. The Court held his circumstances distinguishable - that in his case, he held the keys to his release and that the Court would not "dissolve a lawful order ... merely because the contemnor persists in violating it."

The Court ultimately disagreed that the civil contempt order in Harris’ case became a de facto criminal contempt order holding that an "order of civil contempt will only become punitive if a contemnor is unable to comply with the order, or if the circumstances indicate that a court is maintaining the contempt for an impermissible punitive purpose." Here, Harris made the choice to continue the conduct - the civil contempt order is in place to coerce him to stop. Again, he has the keys to his release and the order does not, under these circumstances, violate due process.

In the concurring opinion, Judge DuBois, noted that when confinement pursuant to a civil contempt order ceases to become coercive it loses its remedial effect and becomes punitive and that under those circumstances the contemnor must be released and prosecuted for criminal contempt (with the right to a jury trial). Neither the majority nor Judge DuBois suggest a set time limit for release and subsequent criminal prosecution. Judge DuBois does, however, suggest that a district court in these circumstances must determine whether continued confinement continues to have the coercive effect - if not, then release and prosecute. (BARRY, SMITH, and DuBOIS, majority opinion by BARRY, concurring opinion by DuBOIS).

Rehearing Granted in Case Where Court Previously Held That Prior Conviction for Resisting Arrest Qualified as a Crime of Violence.

On September 25th, in United States v. Stinson, No. 08-1717, July 28, 2009, the Court of Appeals granted rehearing in a case where it previously held that a prior conviction for resisting arrest was a crime of violence under U.S.S.G. § 4B1.1(a). Argument is scheduled for October 8, 2009.

Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court’s denial of Thomas’ § 2254 petition.

While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court. Thomas asked and was given permission to proceed pro se. However, prior to trial, the trial judge refused some of his requests for production of witnesses and documents - as a result, Thomas declined to participate in his own trial. Consequently, jury selection, trial, and conviction all took place in his absence and in the absence of any counsel. On appeal, Thomas complained of a Sixth Amendment violation - i.e. the trial judge’s failure to appoint counsel in his absence and for conducting the trial in his absence. The Delaware Supreme Court affirmed the conviction finding no error.

Thomas then filed a 2254 petition. The District Court denied the petition but, in doing so, granted a certificate of appealability "to determine whether [Thomas’] right to a fair trial was violated when the [trial judge] proceeded with his trial in absentia without appointing counsel to represent him."

On appeal, the Third Circuit framed the issue as follows: "whether the Delaware Supreme Court committed constitutional error in allowing the case to proceed to trial with no one present for the defense." Initially, the Court held because this precise issue had never been before the Supreme Court, it could not be"contrary to" Supreme Court precedent. The Court then focused on the "closer issue" - whether the Delaware Supreme Court’s decision was an "unreasonable application of" clearly established federal law under § 2254(d).

The Court recognized a defendant’s right to proceed pro se, a trial judge’s ability to terminate self-representation in the event of "serious and obstructionist misconduct," and the trial judge’s ability to appoint stand-by counsel. In recognition of these rights, the Third Circuit, citing Faretta v. California, 422 U.S. 806, 835 (1975) and McKaskle v. Wiggins, 465 U.S. 168 (1984), the held that while Thomas proceeded pro se and the trial judge could have appointed standby counsel, the judge was not required to do so. That the core "Faretta right" is for a pro se defendant to maintain control over the presentation of his case and appointment of standby counsel can "erode" that right. So when Thomas voluntarily declined to participate in his trial in protest of alleged "constitutional violations," appointment of standby counsel would arguably have violated Thomas’ right to control his own defense - i.e. in the absence of Thomas, standby counsel’s participation over his objection would permit counsel to make or interfere with his tactical decisions, witness questioning, etc. Ultimately the Court concluded: "Given the weighty interests on both sides of the question - a defendant’s interest in controlling his or her defense against the public’s interest in fair and effective criminal trials - and the lack of guidance from the Supreme Court on this precise issue, we cannot conclude that the Delaware Supreme Court’s decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. " Both the majority and Judge Pollak in his concurrence, suggested that had this case come before them on direct appeal that the result would have been different. That counsel must be appointed in these circumstances. But under AEDPA, the result must stand. (SLOVITER, HARDIMAN, and POLLAK, majority opinion by SLOVITER, concurring by POLLAK).

Thursday, September 24, 2009

Brady Violations Compel New Trial in Capital Murder Case

In Simmons v. Beard, No. 05-9001 (3rd Cir. Sept. 11, 2009), a habeas proceeding arising from a capital murder conviction, the Third Circuit affirmed the district court’s grant of a new trial on the ground that the state prosecutors withheld several pieces of material exculpatory evidence in violation of Brady where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.

Wednesday, September 23, 2009

Writ of Audita Querela Under the All Writs Act Cannot Trump 28 U.S.C. 2255

The Third Circuit recently ruled that a federal prisoner may not seek relief via a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651, as long as his claim is cognizable under 28 U.S.C. § 2255. United States v. Massey, No. 09-1665 (3rd Cir. Sept. 11, 2009). This applies even if the client is unable to satisfy the AEDPA requirements for filing a second or successive § 2255 motion to vacate sentence.

Tuesday, September 15, 2009

Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity." United States v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009). The Court began by clarifying its prior holding in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). While Vargas's holding that it is not an abuse of discretion for a sentencing judge to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough, Vargas can no longer be read to prohibit a sentencing court's discretion to consider a fast-track disparity argument because such a disparity is warranted by Congress under 18 U.S.C. § 3553(a)(6). According to the Court, the fast-track issue is not confined to § 3553(a)(6), but, instead, a sentencing judge has the discretion to consider a fast-track variance under the totality of the § 3553(a) factors.

The Court rejected the Government's and other opposing Circuit's congressional policy arguments as "illusory," "superficial," and "an attempt to manipulate the advisory character of the Guidelines." It found that the fast-track departure scheme did not exemplify the Sentencing Commission's exercise of its characteristic institutional role in developing the Guidelines. Finally, it disagreed with the Government's argument that affording district courts discretion on this issue would create even more disparity.

With regard to what circumstances would justify a downward variance for fast-track disparity, the Third Circuit held that a defendant must establish: (1) that he would qualify for fast-track disposition in a fast-track district and (2) that he would have taken the fast-track guilty plea if offered. Because Mr. Arrelucea-Zamudio had met these requirements in his case, the Third Circuit vacated his sentence and remanded his case for the District Court to consider his fast-track disparity argument.

Mr. Arrelucea-Zamudio was represented by Assistant Federal Public Defender Maggie Moy and Research and Writing Attorney Julie McGrain of the Federal Public Defender's Office for the District of New Jersey (Camden).

Monday, August 31, 2009

Habeas Relief Granted in Decision Construing Pennsylvania Law of Conspiracy

In Robertson v. Klem, No. 07-2581 (Aug. 28, 2009), the Court considers a state prosecution resulting in consecutive sentences of five to ten years’ imprisonment for each of two alleged conspiracies to commit murder. The Court grants habeas relief on the ground that the evidence was insufficient under Pennsylvania law to support conviction of more than one conspiracy.

In an opinion by Judge Sloviter, the Court explains that the evidence at the state trial sufficed to permit a reasonable jury to conclude beyond a reasonable doubt that the defendant had conspired with a second man in the shooting of two persons during a single visit to their home. Focusing on the fact that there were two victims, the Pennsylvania Superior Court upheld consecutive sentences for two conspiracies. The Third Circuit, however, finds that analysis insupportable under Section 903(c) of the Pennsylvania Crimes Code, which provides that if "a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." Reviewing state law concerning how to determine whether there existed one or more than one conspiracy, the Court determines that "the Commonwealth failed to prove that the murders at issue, which involved the same conspirators, the same murder weapon, and occurred at the same time and place, were the result of separate agreements or conspiratorial relationships."

The Circuit finds the defendant stated a cognizable habeas claim: that he was denied his due process right "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." The Court then remands with directions that the district court fix a period of time within which state authorities must free Robertson unless he is resentenced on a single count of conspiracy.

Friday, August 28, 2009

"Departure" or "Variance," That is the Question

District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion. The remand follows the Court’s construction of the application note in a manner favoring the defendant.

Reaffirming that punctilious care in Guidelines calculations is essential even under an advisory regime – an approach from which the Second Circuit recently endorsed exceptions (opinion here) – the Court reminded that it "expressly distinguish[es] between departures from the guidelines and variances from the guidelines." "Departures are enhancements of, or subtractions from, a guidelines calculation based on a specific Guidelines departure provision," Senior District Judge Pollak’s opinion explains. "Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors." The distinction is of note because an "appellate court reviewing a variance for reasonableness does so by evaluating the district court’s analysis of the § 3553(a) factors, whereas an appellate court reviewing a departure must consult the relevant guidelines provision to determine whether the departure was appropriate."

Here, the defendant was convicted of possessing 6,350 photographs and 221 videos depicting children engaging in sexually explicit conduct. Under the Guidelines, this quantity of material called for the addition of five offense levels. While the range resulting from these and other adjustments was 97 to 121 months, the district court sentenced the defendant to 180 months after the government filed a "Memorandum Recommending Upward Variance." The record became confused as to whether the court was "departing" or "varying" due to the district court's consideration of Application Note 4 to U.S.S.G. § 2G2.2, which concerns how the number of images possessed by a defendant is to be calculated. The note contemplates circumstances where, for example, a single photograph depicts four different children, or a video is of significant length. The district court had read the note to direct that an "upward departure may be warranted if the Court determines the number of images substantially under represents the number of minors depicted."

The Circuit rules that the district court erred as a matter of law in its interpretation of the application note. Although the note uses the word "departure," the Court explains that this phrasing refers not to the "guidelines as a whole" but to "a procedure for counting images … in order to calculate a defendant’s Guidelines sentence." Thus, the note "could not have justified" a sentence above the correctly calculated range.

Even though the record might be read to show that the district court exercised independent discretion to select the 180-month term of imprisonment in furtherance of the sentencing purposes at 18 U.S.C. § 3553(a) -- i.e., that it varied rather than departed -- the Circuit holds that the erroneous interpretation of the application note cannot be deemed harmless. In "view of the possibility that the court intended to formulate a departure, rather than a variance … and given the court’s invocation of its erroneous interpretation … we cannot be confident that the court would have arrived at the same conclusion had it properly construed the Application Note." The Court thus vacates the sentence and remands.

Implying that it finds some credence in a mitigation argument, the Court also takes care to ensure the district court does not mechanically reimpose the same sentence on remand. "[W]e have certain reservations," the panel says, "about whether the District Court adequately addressed Brown’s argument that his personal history and characteristics – his age, poor health, lack of criminal history, strong family support, and admission of guilt – make his likelihood of recidivism minimal."

Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only

Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.

With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares that "when Congress fails to set the unit of prosecution clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Finding the statute ambiguous in its prohibition upon the possession of "any" firearm or ammunition, the Court holds that the defendant’s "possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1)."

The Court then confronts two previous decisions it acknowledges to be in "direct conflict" regarding whether dual punishments of the kind here affect a defendant’s "substantial rights," as required to support correction on plain error review. In 2008, the Court held in United States v. Miller (Blog post here) that the potential adverse collateral consequences resulting from each punishment, and the extra special assessment, make out the requisite effect. In its 2002 decision in United States v. Gricco, however, the Court had found no such effect when the district court erroneously failed to merge two convictions. Gricco’s rationale was that the "only immediate practical effects of the concurrent sentences" were "special assessments totaling $700 for each defendant."

Ordinarily, the Court’s Internal Operating Procedure 9.1 directs that the earlier Gricco decision be treated as controlling because it was decided first. But this week’s decision in Tann faults Gricco for not following, or even mentioning, two Supreme Court cases predating it. The Court therefore refuses to be bound by Gricco -- a decision authored by then Judge Alito -- and instead follows Miller, which it finds to have followed the high court’s precedents. Confronting IOP 9.1, the Court says that a "panel of our Court may decline to follow" a prior decision "without the necessity of an en banc decision whether the conflicting Supreme Court decision was rendered before or after our prior decision."

Concluding that the judgment imposing dual punishments on the same offense seriously affected the fairness and integrity of the proceedings, the court remands with instructions "to vacate the sentence on one of Tann’s convictions under 18 U.S.C. § 922(g) and to merge the two convictions under § 922(g) into one conviction."

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." This week, in United States v. Lychock, No. 06-3311, a panel flunks a sentence under that standard. The defendant, following conviction for possessing between 150 and 300 images of child pornography, had been placed on five years' probation and fined $10,000 when the Guidelines range was 30 to 37 months’ imprisonment. The Court vacates the sentence as both procedurally and substantively unreasonable.

Two leading factors in the Court’s analysis appear to have been the sentence of probation and the defendant’s apprehension in a "wider investigation into an international child pornography enterprise," which has led to the sentencing of numerous defendants in the District of New Jersey for very similar offenses. In an opinion by Judge Roth, the Court did not offer any general remarks concerning how probation figures within the rubric of sentencing purposes identified in 18 U.S.C. § 3553(a). It did, however, repeatedly describe the defendant’s sentence with phrases such as "so far below the range suggested by the Guidelines." Considering the "significant deviation," the Court held the district judge’s explanation insufficient and the sentence therefore procedurally unreasonable. With respect to substantive unreasonableness as well, the Court explained that the "extent of any variance from the Guidelines range" must be taken into account.

The significance of the international investigation’s netting of numerous New Jersey child pornography defendants relates to § 3553(a)(6)’s directive that district courts consider the need to avoid potential sentencing disparities among similarly situated individuals. The Third Circuit notes that the government "highlighted the within-Guidelines sentences several RegPay defendants had already received from other judges of the District Court." Because the sentence here was "far below the sentences given to similar offenders, consideration of this disparity deserves particular care." In this connection, the Court finds still to be instructive its 2007 child pornography precedent in United States v. Goff (Blog post here), quoting that opinion in concluding that the district court "did not give the Guidelines the consideration they are due."

Lychock also emphasizes that district judges must offer greater than usual elaboration when imposing non-Guidelines sentences on the basis of policy disagreements with the Sentencing Commission. Such disagreement "is permissible only if a District Court provides sufficiently compelling reasons to justify it." Here, the core of the district court’s policy analysis appears to have been that the "kind of psychological problem in persons who are drawn to this kind of material … is not going to be deterred by a jail term for an internet porno observer." The Circuit dismissed that analysis as a "conclusory statement of personal belief."

Friday, August 21, 2009

PA Escape (M2) is not a Crime of Violence

In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1.1. In so ruling, the Circuit recognized that its prior decision to the contrary in US v. Luster, 305 F.3d 199 (3d Cir. 2002), has been effectively overruled.

Hopkins was convicted of drug trafficking. At sentencing the district court concluded he qualified as a career offender because he had two qualifying predicate offenses under USSG 4B1.1. One of the prior convictions was for escape under Pennsylvania state law. The escape occurred when local police went to Hopkins' home to arrest him for failure to appear for a traffic violation. Hopkins ran out the back and was caught as he tried to jump over a fence.

Hopkins challenged the sentence on appeal, and the Circuit initially affirmed on the basis of its prior decision in Luster, which held that all escape crimes are crimes of violence. Hopkins filed a cert petition, however, and the Supreme Court vacated the judgment and remanded for reconsideration in light of its decision in Chambers v. US, 129 S. Ct. 687 (Jan. 13, 2009). Chambers held that the crime of failure to report to prison, which is defined as escape under Illinois law, does not count as a "violent felony" for purposes of the Armed Career Criminal Act, 18 USC 924(e).

On reconsideration, the 3rd Circuit concluded that Chambers "is in conflict with" Luster, and that the Court would have to "undertake to determine anew" whether the escape counted as a crime of violence. Examining the PA escape statute, the Court determined that as a second degree misdemeanor, escape consists of "unlawfully removing" oneself from official detention, and does not require force, threat or the use of a weapon. The Court then compared escape to the other crimes listed in USSG 4B1.1 as crimes of violence -- burglary, arson, extortion -- and concluded that it does not pose the same degree of risk of physical injury to another. Finding that escape involves conduct "materially less violent and aggressive than the enumerated offenses," the Court held that as a misdemeanor, it does not qualify as a crime of violence. The effect of this holding is to overrule Luster. The effect is also to reject Luster's "powder keg" theory, under which the potential for an offense to explode into violence was enough to qualify it as a crime of violence.

(See also the post below regarding US v. Polk, No. 08-4399 (Aug 12, 2009), in which the 3rd Cir held that possession of a weapon in prison is not a crime of violence, overruling its prior decision in US v. Kenney, 310 F.3d 135 (3d Cir. 2002).)

Practice tips:
This ruling means two things for practitioners:

1) PA escape as a misdemeanor does not count as either a "crime of violence" under USSG 4B1.1, or a "violent felony" under the Armed Career Criminal Act, 18 USC 924(e). The definitions of the two terms are almost identical, and the Supreme Court has made clear that the case law applying to the ACCA applies also to the Career Offender provision.

2) Practitioners should look back over their closed cases to identify any sentences in which the Career Offender or ACCA enhancement was applied based on a prior escape offense. In any such cases, the defendants should be contacted and advised to file petitions under 28 USC 2255 to vacate their sentences. These petitions should be filed by January 12, 2010 -- within one year of Chambers, otherwise they will likely be time-barred.

Wednesday, August 19, 2009

Materiality and filing of false claims with IRS

In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim." The Court went on to hold (3) that that indictment was nonetheless sufficient, in spite of its failure to use the term "material," because the factual allegations implied materiality, and (4) that the district court's failure to instruct on materiality was harmless in light of the evidence which showed beyond a reasonable doubt that the conspirators agreed to make materially false statements as part of the conspiracy.

Defendants were convicted of conspiring to defraud the US by obtaining payment of false tax refunds, in violation of Sect 286, and of multiple counts of making and presenting false and fraudulent tax returns to the IRS, in violation of Sect 287. On appeal they challenged the government's failure to allege materiality under either section.

(1) The Court held that Sect 287 does not require proof of materiality because the statute applies to the filing of a claim, "knowing such claim to be false, fictitious or fraudulent." While the word "fraudulent" implies the materiality must be proved, the use of the disjunctive "or" means that separate meaning should be given to the other terms in the list. Thus, the Court reads Sect 287 "to demand a showing that the claim was known to be either 'fraudulent,' which would require proof of materiality, or 'false' or 'fictitious,' which would not require proof of materiality. This means that materiality is not always required to establish a Sect 287 violation."

(2) The Court also held, however, that Sect 286 does require proof of materiality because it requires proof of a "conspiracy to defraud." Although this section does not require proof that the defendants actually made or presented any falsehoods, let alone material ones, the requirement that there be proof of conspiracy to "defraud" incorporates a materiality requirement. Sect 286 thus requires the government to prove an agreement to make false statements that would have a material effect on the government's decision to pay false claims.

(3) Turning to the sufficiency of the indictment, the Court held that although it did not specifically mention "materiality," the facts alleged in support of the allegation of fraud warrant an inference that the false statements the conspirators agreed to make as part of the conspiracy were material.

(4) Last, the Court held that the district court's failure to mention "materiality" in the jury instruction regarding Sect 286 was harmless error since the misrepresentations of names, addresses, and gross income on the fraudulent tax forms were unquestionably material.

The Court accordingly upheld the convictions and sentences.

Tuesday, August 18, 2009

Post-Begay, Possession of a Weapon In Prison Is Not Considered a “Crime of Violence” Under the Career Offender Guidelines

In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months’ imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers." Polk was charged with one count of possession of a prohibited object designed to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2), and pleaded guilty. At sentencing, the District Court determined that Polk’s offense constituted his third predicate "crime of violence" under the Career Offender Guidelines, resulting in a Sentencing Guidelines range of 37-46 months. Without the career offender enhancement, the Guidelines range would have been 27-33 months. Polk did not object to his career offender designation despite the fact that Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581 (2008), had been decided six months prior to his sentencing. The Third Circuit reviewed the District Court’s decision under the plain error standard.

First, the Court held that the District Court erred in sentencing Polk as a career offender because possession of a weapon in prison is not considered a "crime of violence." In United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), the Third Circuit held that possession of a weapon in a prison is considered a "crime of violence" under the "otherwise involves" clause of that definition in the Career Offender Guidelines. After the Supreme Court’s decision in Begay, however, Kenney is no longer good law. In Begay, the Supreme Court considered the "violent felony" provision of the Armed Career Criminal Act (ACCA) and held that "to qualify as a ‘violent felony’ under the ‘otherwise involves’ clause of this provision, an offense must (1) present a serious potential risk of physical injury and (2) be ‘roughly similar, in kind as well as degree of risk posed to the examples [burglary, arson, extortion, or use of explosives] themselves.'"

In Polk, the Third Circuit determined that Begay’s analysis of the "violent felony" provision of ACCA also applies to the "crime of violence" provision of the Career Offender Guidelines. In light of Begay’s applicability, the Court held that "possession of a weapon, even in prison, is not ‘roughly similar, in kind as well as in degree of risk posed," to the enumerated crimes of burglary, arson, extortion, or use of explosives." The Court rejected the government’s argument that Polk’s conduct constituted a crime of violence because the possessory crime occurred in the prison context where no permissible use exists for the possession of a weapon. The Court did not deny the inherent dangers of possessing a shank in prison, but concluded that possession "alone cannot transform a mere possession offense into one that is similar to the crimes listed" in the "otherwise involves" clause of the Career Offender Guidelines. Possession of a weapon is neither aggressive nor violent per se because only the potential exists for aggressive or violent conduct. But not even the serious potential for injury is enough to constitute a crime requiring a career offender enhancement.

Second, although the District Court erred in sentencing Polk as a career offender, that error alone was not sufficient to be characterized as "plain" because Polk did not object to the career offender designation at sentencing. The Court did not need to reach the issue of whether the error was plain, however, because it agreed with Polk’s secondary argument that his attorney was ineffective for failing to raise the Begay issue at sentencing. While defendants generally are not permitted to raise the claim of ineffective assistance of counsel on direct appeal, an exception is allowed where "the record is sufficient to allow determination of ineffective assistance of counsel, [and thus] an evidentiary hearing to develop the facts is not needed." In Polk, Polk's sentencing attorney "freely concede[d] that at sentencing he missed the arguable effect of Begay." Such an admission satisfies the Strickland test. Begay had been decided six months prior to Polk’s sentencing and prejudiced him because the result of the proceeding would have been different if Begay had been considered.

Friday, August 14, 2009

Child Porn: Circuit upholds use of relevant conduct and conditions of release

In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court’s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material.

The district court at sentencing determined Thielemann’s offense level under § 2G2.1, an increase of 10 levels, (offenses causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction), using a cross-reference to uncharged relevant conduct—codefendant’s molestation of a minor carried out at defendant’s inducement via the internet. The Third Circuit affirmed the use of relevant conduct in determining the offense level.

The Court also upheld both special conditions of supervised release. The restriction on possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution where the purpose is to rehabilitate, protect, and deter future conduct, because the offense conduct demonstrated that defendant previously used legal adult pornography to further his sexual interest in children. The restriction on defendant’s access to computers and the internet was also upheld, given the limitations of the restrictions and the fact that Thielemann’s utilized the internet to facilitate actual molestation of a child.

Tuesday, July 28, 2009

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offense level to 36 and his sentence to 270 months. However, the defendant appealed the partial grant of his motion, arguing that the district court should have treated the guidelines as advisory when adjusting a sentence pursuant to § 3582(c) and therefore granted him a greater reduction. The Third Circuit upheld the re-sentencing, thereby joining the majority of courts which have concluded that Booker does not apply to § 3582(c)(2) proceedings. The court relied on its reasoning in cases involving the determination of a defendant's eligibility for a sentence reduction under § 3582(c). Specifically, the court recognized that as § 3582(c) only serves to reduce a sentence reduction, not increase it, the constitutional holding in Booker does not apply. The court noted that Booker invalidated § 3553(b)(1), which does not cross- reference § 3582(c). The court also determined that Booker applies to full sentencing hearings-whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under § 3582(c)(2).

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not violated § 2422(b) if he used an adult intermediary to facilitate the attempted enticement. Relying upon the legislative history of the statute, policy considerations and common sense, the Third Circuit upheld the conviction. The court reasoned that, as the defendant was charged with an attempted violation of § 2422(b), his crime was complete when he demonstrated his intent to commit the crime and he took a substantial step toward its commission using a means of interstate commerce. The court concluded that the defendant demonstrated his intent to commit the crime via his emails and telephone conversations, and he took a substantial step toward its commission using a means of interstate commerce by arranging the rendevous and discussing how to avoid police protection via email and telephone.

Monday, July 27, 2009

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on January 7, 2005. Lee’s defense at trial was that the registration card showed that Martin/Lee had checked out days before the drugs were found. The hotel staff-person repeatedly testified that the card showed that Martin had checked out in well in advance of the search.

During deliberations, through a jury question, it became clear that the original registration card that had been received in evidence was two-sided, and that the flip side indicated that Martin had extended his stay through January 7th – the day of the search. Lee moved for a mistrial. The court denied the motion and gave a limiting instruction that told the jury that only the front part of the card was in evidence and the back should be disregarded. The Third Circuit reversed, finding that the failure to disclose the reverse side of the card interfered with Lee’s substantial rights and undermined confidence in the verdict. The district court therefore abused its discretion in failing to grant a mistrial.

The Court rejected the government’s argument that it had met its discovery obligation by giving counsel "access" to the exhibit. "Although it may be sound practice," the Court said, "defense counsel is not required to inspect every exhibit at trial to ensure that documents that appear to conform to the copies provided by the government are in fact identical." The Court also rejected the government’s argument that the jury should be presumed to have followed the limiting instruction. "[W]e will not blindly assume that a jury is able to follow a district court’s instruction to ignore the elephant in the deliberation room." Here, the case against Lee was otherwise relatively weak, the registration card was a critical piece of evidence, and the jury "was primed to see the information on the back of the registration card."

The Court limited the reach of its ruling, however. It held only that "[u]nder these highly unusual circumstances . . . it was clear error for the District Court to assume – at least without some inquiry – that the jury would be able to follow the Court’s instruction." It also noted that "undisclosed evidence that upsets a defendant’s trial strategy may be admissible if the defendant has some opportunity to adjust his trial strategy and respond to the new evidence."

The Court also addressed several evidentiary issues that would likely be at issue again at the new trial, ruling that (1) Lee had no expectation of privacy in Boyer’s person; (2) the affidavit supporting the search warrant established probable cause; (3) and Lee’s prior drug trafficking conviction was properly admitted as evidence that Lee intended to distribute any drugs in his possession.

Thursday, July 09, 2009

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealability as to three issues: 1) that the trial court’s "reasonable doubt" instruction was unconstitutional; 2) that the Commonwealth’s closing argument at sentencing was unconstitutional; and 3) that Thomas’s counsel was ineffective for failing to life-qualify the jury.

Thomas appealed the District Court’s denial of those three guilt-phase claims; the Commonwealth cross-appealed the sentencing relief on three grounds: 1) that the District Court applied the wrong standard of review; 2) that there was insufficient evidence that Thomas’s trial counsel failed to investigate mitigating evidence; and 3) that any deficiency by trial counsel did not prejudice Thomas. The Third Circuit affirmed the District Court’s denial of the guilt-phase claims, but vacated the District Court’s order granting sentencing relief, remanding for an evidentiary hearing on the extent of trial counsel’s investigative efforts to obtain mitigation evidence.

As a threshold matter, the Court addressed whether the AEDPA deferential standard of review applied to Thomas’s three claims, when they were "adjudicated on the merits" in the lower state court, but the appellate state court dismissed those claims entirely on procedural grounds, as waived. The Court held that in the § 2254 context, AEDPA deference is due only when the state court resolution of petitioner’s claim has preclusive effect, and here, the Pennsylvania Supreme Court’s dismissal on purely procedural grounds "stripped the PCRA court’s substantive determination of Thomas’s claims of preclusive effect." Therefore, because Thomas’s claims were not "adjudicated on the merits" in state court, the Court did not need to apply AEDPA deference, but rather, could review legal and mixed questions of law and fact de novo.

On the merits, first, the Court addressed Thomas’s argument that a trial court instruction on the definition of reasonable doubt that used the phrase "restrain from acting" rather than "hesitate to act" violated due process. The Court held that even though the trial court’s "restrain from acting" verbiage lessened "to some extent" the prosecution's burden of proof, it was "not enough to render its entire instruction unconstitutional."

Second, the Court addressed Thomas’s argument that the Commonwealth’s closing argument at trial improperly invited the jury to consider Thomas’s future dangerousness, and created an unacceptable risk that the jury erroneously believed that Thomas could be released on parole if not sentenced to death. After examining the record, the Court ruled that the Commonwealth’s closing argument was not improper.

Third, the Court addressed Thomas’s argument that trial counsel was ineffective for failing to life-qualify the jury. Noting that the Supreme Court has never imposed on trial counsel the obligation to life-qualify a jury, and that no relevant "prevailing norms of practice" required life-qualifying a jury, the Court found in reviewing the record no indication of a need to life-qualify the entire jury, and no evidence suggesting any probability that trial counsel’s life-qualifying the entire jury would have resulted in at least one juror voting to sentence Thomas to life imprisonment.

With respect to the Commonwealth’s cross-appeal, the Court, first, rejected the Commonwealth’s claim that the District Court improperly reviewed Thomas’s claims de novo, because the Court had found that there had been no state court "adjudication on the merits".

Second, the Court addressed the District Court’s conclusions that: 1) trial counsel was ineffective for failing to investigate and present mitigating evidence, and 2) that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently and therefore did not cure the prejudice resulting from trial counsel’s ineffectiveness in failing to investigate and present mitigating evidence.

In light of the presumption of effectiveness, the Court found that, as to trial counsel’s lack of mitigation investigation, the current state of the record – which it characterized as "sparse" – did not permit affirming the District Court’s conclusion that trial counsel was ineffective. But recognizing that further record development could establish trial counsel’s ineffectiveness in failing to investigate mitigation evidence, and that it was reasonably probable that such evidence could have persuaded at least one juror to vote against the death penalty, the Court remanded the case for a hearing on counsel’s investigative efforts.

Finally, the Court rejected the Commonwealth’s argument that a hearing was unnecessary because even if trial counsel was ineffective, Thomas was not prejudiced, as he waived his right to present mitigating evidence. The Court found that the record did not establish that Thomas knowingly and intelligently waived his right to present all mitigating evidence, and that he would have prevented trial counsel from doing so.

Friday, June 26, 2009

Citing Hodari D., the Third Circuit reverses District Court’s order suppressing evidence.

In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court’s suppression of evidence and remanded for further proceedings.

The facts of the case are as follows: Police officers responded to a dispatcher’s report of an anonymous caller’s observation of a "subject" with a gun at a specific location. Upon arrival at the location the officer’s observed five individuals standing on the front porch of a house. The officer’s exited their vehicle and without seeing any weapons, ordered the individuals to put their hands in the air. All individuals complied, except one - Waterman - who kept his hands in his jacket pockets. The officers, who still had not seen any weapons, removed their firearms and repeatedly ordered Waterman to show his hands. Waterman didn’t comply and, instead, entered the residence. Guns and drugs were subsequently discovered in the residence.

The district court suppressed the recovered evidence concluding that Waterman was "stopped" under Terry when the officers commanded everyone to put their hands in the air. That "stop" lacked reasonable suspicion and therefore was an unlawful seizure warranting suppression.

The Court of Appeals disagreed. Citing the Supreme Court’s decision in Hodari D., the Court noted that a "seizure"does not occur until one of two things takes place: either "physical force/contact" with the defendant or "submission to the assertion of authority." To establish "physical force" there has to be more than just of a "show of authority" - it requires the "application of force" or "laying on of hands." To establish "submission" there has to be more than just a "momentary pause or inaction," - it requires, at minimum, a suspect’s "manifest compliance with police orders."

The Court of Appeals concluded there was neither "physical force" nor "submission" and therefore there was no "seizure." While the Court held that officers drawing their firearms was a "display of force," it nonetheless fell short of the "physical force" required under Hodari D. Likewise, the Court held there was no "submission" because Waterman did not comply with the officer’s commands.

The irony was in the Court’s conclusion that, "had police officers effected a ‘seizure’ on the porch, Waterman’s rights would have been violated" under Hodari D. In other words, if he stayed on the porch and submitted to their authority, the recovered evidence would have been suppressed. But because he retreated, the recovery of evidence was lawful.

Monday, June 22, 2009

Court affirms denial of sentence reduction for eligible crack defendant

Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U.S.C. § 3582(c)(2), the district court found that consideration of the 18 U.S.C. § 3553(a) factors and the safety and welfare of the public made a sentence reduction inappropriate. On appeal, the Third Circuit ruled that: (1) the defendant was not entitled to an evidentiary hearing and the court did not abuse its discretion in failing to hold an evidentiary hearing; (2) the district court did not abuse its discretion by concluding that, despite the defendant's progress since incarceration, the nature of the defendant's crime, his criminal history, his use of firearms, and the need for deterrence and public safety made a reduction inappropriate; and (3) the defendant's unmodified sentence was substantively unreasonable.

Tuesday, June 16, 2009

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction. Instead, Petitioner stipulated at sentencing to a loss that exceeded $100 million. Near the end of Petitioner's term of imprisonment, the Government sought to remove Petitioner from the United States based on his commission of an "aggravated felony," namely, an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000 (8 U.S.C. § 1101(a)(43)(M)(i)). Petitioner argued that under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), both the "fraud and deceit" and "loss" elements of § 1101(a)(43)(M)(i) must have been found by a jury in order for him to have been convicted of an aggravated felony.

The Supreme Court in Nijhawan v. Holder, No. 08-495 (June 15, 2009) affirmed the Third Circuit's holding that the Immigration Judge could inquire into the underlying facts of the prior fraud conviction to determine whether the loss to the victims exceeded $10,000. Resolving a circuit split on the issue, the Court concluded "that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include [the $10,000 threshold]. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occassion." The Court found that a "circumstance-specific" approach, rather than a "categorical approach," was necessary because (1) the "aggravated felony" statute at issue differed from the ACCA statute at issue in Taylor by listing both generic and specific circumstance offenses, (2) subparagraph (M)(i)'s language, containing the words "in which" (modifying "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements "of" the offense, and (3) applying a categorical approach would leave subparagraph (M)(i) with little, if any, meaningful application. Finally, the Court rejected Petitioner's fairness argument, concluding that Petitioner and others in similar circumstances had the opportunity to contest the loss amount at both the sentencing and deportation hearings.

Tuesday, May 26, 2009

Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

United States v. Jones, No. 07-2798 (May 20, 2009).
The Third Circuit gives broad rein to a district court’s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (“VICAR”) statute. The defendant was charged with having joined in a retaliatory, drive-by-type shooting on the orders of higher-ranking members of the Double II Bloods gang in East Orange, New Jersey. One person was injured in the shooting but no one was killed. The defendant was sentenced to 22 years’ imprisonment after conviction of, among other offenses, conspiracy to commit murder for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)(5).

At voir dire, following the description to prospective jurors of separate charges brought against certain of Mr. Jones’s six codefendants but not Mr. Jones, all of the codefendants pled guilty. At least one juror, who was dismissed, learned of the codefendants’ pleas via media coverage. By this point, the jury selection process had taken “well over” a month, the court had “pre-qualified approximately 40 jurors out of a pool of approximately 360 based on a detailed questionnaire,” and more than 50 percent of jurors had been excused for cause due to bias against gang members. Following the pleas, the district court instructed jurors to limit their deliberations to the particular crimes charged against the defendant and not to speculate on how he came to be tried alone. The Third Circuit found no abuse of discretion in the district court’s rejection of Mr. Jones’s request to restart the voir dire process with a new jury pool. The court, it found, had made a “substantial effort” to ascertain jurors’ ability to be impartial, “particularly on specific issues,” and had instructed the jury “cautiously.”

The Third Circuit also rejected the defendant’s Rule 401 and 403 challenges to the admission of other gang members’ activities. These spanned a multiple-year period, whereas the charges against the defendant arose from a single incident on one date. Among the evidence admitted was an autopsy photograph of a murdered Double II Bloods member, the “brutal face slashing” of a Double II Bloods member by another member while in jail, and testimony concerning drug-running operations between New Jersey and New York City. The Third Circuit found no abuse of discretion in the district court’s determination that the potential for prejudice did not substantially outweigh this evidence’s probative value on VICAR elements going to the existence of a racketeering enterprise and a connection to interstate commerce. It noted that the government “took steps to pare down” evidence it had planned to introduce against other codefendants, whereby “a trial expected to last up to six months was reduced to five full days of testimony.”

Sentencing-wise, the Court found no procedural error in the district court’s failure to formally rule on the defendant’s motion for a downward departure for overrepresentation of his criminal history. It was sufficient that the government’s sentencing memorandum had acknowledged the “plausibility of a departure” and that the record did not indicate the district court to have thought it lacked discretion to depart. A second contention of procedural error, which the Court called “plausible … but ultimately unconvincing,” was a claim that the district court had given insufficient consideration to the disparity between the defendant’s sentence and that of a codefendant who had participated equally in the shooting incident. Although the codefendant received a sentence of only four years (compared with defendant’s 22), the Circuit held the district court to have given “meaningful consideration” to the disparity factor. The opinion is somewhat ambiguous as to precisely what record the district court made of its reasoning, but for its part, the Circuit notes that the codefendant had pled guilty, accepted responsibility, denounced his gang affiliation despite a “looming threat of violent retaliation,” and substantially cooperated with the government, including by testifying against Mr. Jones. The Third Circuit also found Mr. Jones’s sentence, which reflected a 44-month downward variance, not to be substantively unreasonable.

Mr. Jones fared no better on the one issue reviewed de novo by the Circuit, which was the sufficiency of evidence to support the existence of an agreement to commit murder and thus the conspiracy conviction. An agreement could be inferred from the government’s showing that the defendant, after previously pledging to kill for the gang, had been dispatched from an organizational meeting with a loaded gun and instructions to “kill” or “RIP” (meaning “rest-in-peace”) anyone found at the location of the shooting. The Court also noted that the defendant was “required to follow the orders of senior members,” acted in concert with a second gang member, and was watched over by a third member assigned to make sure the shooting was carried out.

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), , the ...