In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

In Gov’t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant’s possession was a legal necessity.

Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm. At trial, Lewis testified that after falling asleep at George’s home, he awoke to find George sexually assaulting him. Lewis left, returning a few days later to collect some belongings. When Lewis arrived, George became enraged. He brandished a firearm, fired shots into the ground, and ordered Lewis to get into the passenger seat of George’s car. While George was driving, he began insulting George and jabbing the gun into his head. A struggle ensued, the gun fired several times, Lewis gained control of the gun and shot George in self-defense.

At the close of trial, the Government and Lewis submitted proposed jury instructions. Lewis specifically requested that a self-defense instruction be given on the murder charge, but not on the unlawful possession charge. The court instructed as Lewis requested. The jury acquitted Lewis for murder, but convicted for unlawful possession. The Appellate Division affirmed the conviction.

On appeal, Lewis argued that his unlawful possession charge should be vacated. Lewis argued that he possessed the gun only long enough to defend himself in the car, and therefore the court should have instructed the jury on the affirmative defense of temporary justified possession. Because this issue was being raised for the first time, the Court reviewed it for plain error.

The Third Circuit ruled that it was not plain error for the trial court to fail, sua sponte, to instruct the jury on the affirmative defense of justification. In reaching that ruling, the Court examined its decision in United States v. Paolello, 951 F.2d 537 (3d Cir. 1991). In Paolello, the court adopted a four-part test to detemine the availability of a justification defense for an unlawful possession charge. The evidence must support a jury’s conclusion that: (1) the defendant was under an unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4)there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. The Court further noted that this test must be applied restrictively, requiring a high level of proof to establish justification.

Applying the Paolello test to the record, the Court found that Lewis satisfied the first and second Paolello requirements. Discussing the third requirement, the Court agreed with Lewis that a jury could conclude that he could not have avoided the threat George posed without taking immediate possession of the gun while in the car. But the Court refined the third Paolello test to require that the defendant: (a) possess the firearm no longer than is absolutely necessary to avoid the imminent threat; and (b) must dispossess himself of the gun in an objectively reasonable manner once the threat has abated. Reviewing the record, the Court found that Lewis did not meet the third requirement because he did not immediately discard the firearm from the car, or hand the gun to police when he arrived at the police station – Lewis’s decision to discard the gun in a dumpster does not satisfy the dispossession requirement.

The Court thus concluded that under Paolello, as refined, the record evidence did not support a justified possession defense to the unlawful possession of a firearm charge. Therefore, there was no plain error in the trial court’s sua sponte failure to give the justification instruction.
　　

Third Circuit holds Fed. R. App. P. 4(b) not jurisdictional, and explicates the rule on questioning a defendant at trial on post-arrest silence.

In Gov’t of V.I. v. Martinez, No. 08-2694 (3d. Cir. Sept. 8, 2010) the Third Circuit clarified two rules, on procedural, one substantive.

The defendant was convicted in the Territorial Court of the Virgin Islands for kidnapping for rape. The Appellate Division of the District Court of the Virgin Islands affirmed.Martinez then appealed to the Third Circuit -- late. The procedural issue that the Third Circuit addressed was Martinez’s untimely filing of his notice of appeal.

The Court ruled that the time limitation in Federal Rule of Appellate 4(b), while a "rigid" deadline, is a claim-processing rule subject to forfeiture, and not jurisdictional. In other words, if a criminal defendant files a late notice of appeal, and the Government moves to dismiss the appeal for filing out of time, the Court will dismiss the appeal. But if the Government fails to make a motion to dismiss, or if the Government fails to respond to the Clerk’s Order requesting comment on possible lack of jurisdiction because of untimely filing, the issue is forfeited. In that circumstance, the Court will exercise appellate jurisdiction to address appellant’s claim on the merits.

The substantive issue that the Court addresed was whether the Government violated Martinez’s right to due process by questioning him on his post-arrest silence, contrary to the Supreme Court’s ruling in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Supreme Court held that once a criminal defendant recieves proper Miranda warnings, it is improper for the Government at trial to cause the jury to infer guilt from the defendant’s post-arrest silence. Doyle’s rule is subject to harmless error review.

At trial, Martinez’s testimony during direct examination provided an exculpatory narrative. The Government attempted to counter Martinez’s testimony by asking him whether he had told that exculpatory story to anyone before trial. Defense counsel objected.

The Third Circuit was especially troubled by the Government’s questions about whether Martinez had ever told "anyone" his exculpatory account: "[b]ecause the prosecutor placed no personal or temporal specifications on the questions, they might well have been construed as targeting Martinez’s post-arrest, post-Miranda warning failure to proffer his story to the police." But after a comprehensive examination of the record, the Court found – under harmless error review – that "[u]nder all the circumstances here", the error was harmless beyond a reasonable doubt.
　
　

Third Circuit Denies Victim Mandamus: district court did not abuse discretion in denying motion to allow victim's attorney to appear at sentencing.

Professor Berman's post on this interesting Crime Victims' Rights Act case, including a link to the Third Circuit's opinion, is available at http://sentencing.typepad.com/, in the blogging from Thursday, September 23, 2010. Short version: no abuse of discretion in denying motion to allow victim's attorney to appear at sentencing because district court recognized victim's right to be heard, and government was advocating for victim (e.g., by filing victim's request for restitution and attorneys fees).

New Impeachment Evidence Can Serve as Basis for New Trial When Evidence Suggests Defendant was Wrongly Convicted

In United States v. Quiles, Nos. 09-1667 and 09-1686 (August 17, 2010) , the Third Circuit affirmed the district court’s denial of a new trial based on a government witness’ subsequent indictment on sexual assault charges finding that this new evidence was merely impeaching evidence on an unrelated matter that did not go to the heart of the instant case.

Defendants were convicted of money laundering based largely on the testimony of a confidential informant who, following the trial, was indicted in an unrelated matter on charges of child rape and other sexual crimes. Defendants moved for a new trial under Fed. R. Crim. 33 and the district court denied the motion asserting the new evidence was inadmissible impeachment evidence citing United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000), that mere impeachment evidence could not form the basis for granting a new trial.

The Third Circuit applied a de novo standard of review and clarified their holding in Saada. The Court held that Rule 33 permits courts to grant a new trial "when the interest of justice requires it." The Court asserted that "evidence that is merely impeaching is unlikely to reveal that there has been a miscarriage of justice." However, when asked to grant a new trial solely on the basis of new impeachment evidence, if the defendant has demonstrated an exculpatory connection between the evidence and the offense or that the newly discovered evidence totally undermined critical inculpatory evidence, a new trial can be warranted. Determination of the strength and importance of the connection or significance of the newly discovered evidence with respect to a witness’ credibility, is for the discretion of the district court.

The Court further rejected the argument there was insufficient evidence to convict Gloria Quiles. The Court also rejected the argument that German Quiles’ sentence was excessive based on the lesser sentence of the co-defendants, holding the district court explained their reasoning and that co-defendants do not have the right to be sentenced equally.

Sex Offender Requirement to Admit Guilt as Condition of Parole Does Not Violate First Amendment, Due Process or Ex Post Facto

In Newman v. Beard, No. 08-2652 (August 16, 2010), the Third Circuit affirmed the district court’s dismissal of petitioner’s amended complaint which asserted that the Department of Corrections’ (DOC) requirement that sex offenders admit guilt as a prerequisite to entry into a treatment program, the completion of which is required to be eligible for parole under 42 Pa. Cons. Stat. Ann. § 9718.1, violates petitioner’s: 1) First Amendment right; 2) right to due process; and 3) the Ex Post Facto Clause of the Constitution.

Newman was convicted of two rapes and related sexual offenses. While serving his sentence, Pennsylvania enacted new legislation requiring sex offenders to complete a treatment program to be eligible for parole. A DOC regulation required all inmates to admit guilt in order to attend the program. Newman, who exhausted all his direct and post-conviction appeals, refused to admit guilt and thus was denied entrance into a treatment program and further denied parole.

The Court held that a prison regulation that impinges on an inmate’s constitutional rights is valid if it is reasonably related to a penological interest. The Court found that requiring admission of guilt, as a step toward rehabilitating a sex offender, is such a legitimate interest.

The due process claim failed substantively because refusal to admit guilt as a prerequisite for entry into a sex offender treatment program was not arbitrary and does not shock the conscience. Furthermore, the Constitution does not establish a liberty interest in parole that invokes due process protection. While Pennsylvania law guarantees a prisoner the right to apply for parole and have the application fairly considered, the Court found that the Parole Board gave the application all the consideration it was due, and that refusal to admit guilt can be considered in the decision to deny parole.

Lastly, the Court, assuming that § 9718.1 was given retrospective effect, held that the petitioner failed to demonstrate that the new law created a significant risk of increasing his punishment.

Rehabilitative Needs Can Be Considered to Determine Whether to Revoke Supervised Release and the Duration of Imprisonment Upon Revocation

In United States v. Doe, No. 09-2615 (August 16, 2010), the Third Court affirmed revocation of Doe’s supervised release and imposition of a 24 month term of imprisonment followed by an additional 12 months supervised release on the basis that Congress intended, in 18 U.S.C. § 3583(e), that District Courts should consider a defendant’s medical and rehabilitative needs in assessing whether to revoke supervised release and the duration of imprisonment that is appropriate upon revocation.

Doe pleaded guilty to possession with intent to deliver five grams or more of crack cocaine and was sentenced to 30 months imprisonment followed by 4 years of supervised release, the terms of which provided that Doe may not possess or use a controlled substance. Doe violated these terms on several occasions by testing positive for use of cocaine. Following a third petition on revocation of supervised release, the district court revoked Doe’s supervised release explaining to the defendant that "...I am doing it in an attempt to protect you from yourself." Doe appealed based on § 3582(a) which forbids a district court from imposing a term of imprisonment for the sole purpose of a defendant’s rehabilitation at the time of post-conviction sentencing.

The Court distinguished post-conviction sentencing from post-revocation sentencing and held that § 3582(a) does not preclude a district court from considering rehabilitative needs when revoking supervised release and requiring the defendant to serve the remainder of his sentence in prison.