Case summaries of recently decided Third Circuit criminal law cases and other relevant updates provided by Federal Defenders and CJA Panel Attorneys.
Thursday, October 21, 2010
Interior Dog Sniff of Open Car Not Illegal Warrantless Search
Citing the Eighth and Tenth Circuits, the Third Circuit determined that an interior dog sniff is not violative of the Fourth Amendment if the dog's actions are instinctive, and not directed, facilitated or encouraged by its handler. The defendant argued that the dog's sniffs of the interior of the car constituted a Fourth Amendment search because the dog's handler facilitated his entry into the vehicle. However, after a review of the record, which included a videotape of the traffic stop, the Court concluded that the dog acted instinctively and without facilitation by its handler. The Court ultimately ruled that the dog's interior sniff at issue was not a search under the Fourth Amendment, but merely a natural migration from its exterior sniff. The Court also noted that the search would have been deemed permissible because it is well settled that a dog's positive alert during an exterior sniff of a vehicle establishes the probable cause necessary to search the interior of the car.
PWID is Lesser-Included Offense of PWID Within 1000 Feet of School
The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.
One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.
CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable
During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website. In exchange for dropping the fraud charges, Lochmiller (at all times through counsel) provided authorities user access, and eventually administrator access, to the NAMGLA website. This ultimately led to a mass “take down” of NAMGLA users, including Christie, who was a moderator and “prolific” contributor to the site. A search of Christie's residence produced hundreds of discs, printed images, and a hard drive with thousands of images of child pornography. Composition notebooks with access and content notes on various child pornography websites also included references to Christie’s postings on the NAMGLA website. Agents also found a collection of children's toys in the house, which Christie (a bus driver) said were used to calm unruly children on the bus. Christie was convicted on all eight counts of the indictment with possession, receipt, and advertising of child pornography. At sentencing, Christie's total offense level was 45 and his criminal history category was I, producing a Guideline range of life imprisonment. The Court imposed a sentence of 1,080 months (90 years) imprisonment: the mandatory fifteen years on each of Counts 1through 6 pursuant to § 2251(e), to be served consecutively; the mandatory five years on Count 7, pursuant to § 2252A(b)(1), to be served concurrently; and five years on Count 8, pursuant to § 2252A(b)(2), to be served concurrently. The Court stated that Christie was “a remorseless promoter of materials depicting minors engaged in sexual conduct.” Christie raised several errors to his conviction and sentence. The Circuit affirmed.
Evidentiary Issues: First, he challenged admission of the case agent’s testimony that the FBI apprehended other users of the NAMGLA website on the same day he was arrested and that twenty-four of those users confessed to child pornography-related offenses. The Circuit held that the agent, as the lead investigator, had knowledge of the other arrests. The testimony was a relevant, non-hearsay response to demonstrate reliability, and did not violate Christie’s confrontation right. The Court next found two posts that Christie acknowledged submitting to the NAMGLA website and the composition notebooks from his home to be relevant and not unduly prejudicial. Evidence of the toys seized from his apartment was both irrelevant and prejudicial, but nonetheless harmless. The Court also rejected Christie’s argument that the district court improperly sensationalized the trial when it asked the agent whether people who visited the NAMGLA website did so to “get[ ] their kicks” and for “sexual gratification,” finding the question proper, although phrased less than ideally.
Outrageous Conduct: Christie also argued that the government failed to follow CI Guidelines in its handling of Lochmiller in that (1)the agent knew that Lochmiller was on probation but did not contact probation authorities; (2) the paperwork required to register a confidential informant had not been completed; and (3) although confidential informants are not supposed to engage in criminal activity without authorization and supervision, Lochmiller continued to run the NAMGLA website, and thus, the investigation amounted to outrageous government. He argued that the government’s lack of control over the CI compromised the integrity of the investigation, specifically the data on the NAMGLA website.
The Court began by noting that the CI Guidelines do not create rights for criminal defendants. Thus, the question was whether the government's conduct was so outrageous or shocking that it amounted to a due process violation. Without deciding, but assuming, that the CI guidelines applied to Lochmiller, there was no due process violation. The Court reasoned that the government here “did nothing to create or encourage criminal acts, and there is no evidence that the information Lochmiller gave was untrustworthy.”
Obtaining an IP Address: The Court next rejected Christie's argument that the acquisition of his IP address violated his Fourth Amendment rights as he did not possess a reasonable expectation of privacy, because the information “is voluntarily conveyed to third parties.”
Sentencing: Finally, the Court upheld the 90 year, 1080 month sentence as reasonable. Declining to address the argument that § 2G2.2 is inherently flawed and may produce unreasonable sentences, the sentence here is not unreasonable. The Court pointed to the thousands of images which demonstrated this was “not the routine case,” the fact that Christie helped to run a network that facilitated the trade of hundreds of thousands of unlawful images, that Christie expressed no remorse, and the court believed he was likely to reoffend.
Tuesday, October 05, 2010
Circuit Applies Skilling, Reverses Honest Services Conviction
Defendants here were convicted of three counts of mail fraud as part of a scheme to convey City-owned property in violation of 18 U.S.C. § 1341 and 2, one count of fraud involving a local government receiving federal funds in connection with the fraudulent sale of City-owned properties in violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of conspiracy to defraud the public of Defendant James's honest services in violation of 18 U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371. At trial, the District Court instructed the jury that honest services fraud did not require a scheme to defraud another to obtain money or property, and could instead be based on a violation of the duty of honest, faithful, and disinterested service. The Circuit here reversed.
The Court rejected defendants’ arguments that (1) the evidence in support of the honest services charge had an improper spillover effect; (2) the evidence was insufficient to prove “scheme to defraud”; and (3) the district court abused its discretion in not severing the charges.
Circuit Affirms Inventory Search into Closed Containers
Mundy was stopped for turning without using a turn signal and for window tinting. He was stopped less than 1,000 feet from a high school. Mundy was unable to locate documentation for the vehicle, and neither a check on the VIN or the license plate number produced a record of an owner. The Bureau of Motor Vehicles reported no registration information. Mundy was placed in the patrol car and a tow truck was called. One of the officers began to search the interior of the vehicle and, using a key Mundy provided, opened the locked trunk. The only items in the trunk were a tool kit and a gray plastic bag containing a closed shoebox. The officer removed the shoebox and opened it. Inside, he found a brown paper lunch bag and two clear plastic zip-locked bags filled with a substance that appeared to be cocaine. Inside the paper lunch bag were four more clear plastic zip-locked bags, also containing a substance that appeared to be cocaine. The officer replaced the items, closed the trunk of the vehicle, placed Mundy under arrest, and recovered $1,107 in cash from his person. The officers then notified narcotics agents. They did not complete a Towing Report listing the items found during the search.
At the hearing on Mundy’s motion to suppress, the officer testified that he found the cocaine during a routine inventory search of Mundy's car. Philadelphia police policy provides that before a vehicle is towed, its contents must be inventoried in order to protect the police from claims of missing property and damage. Mundy argued that the officers did not have probable cause to search the vehicle, and that the inventory search policy did not sufficiently regulate the officers' discretion with respect to closed containers found in the vehicle. The District Court denied the motion to suppress, concluding that the search was conducted pursuant to a valid inventory search in accordance with departmental policy.
The Third Circuit affirmed, holding that the City police department's vehicle stop and impoundment guidelines, which implemented impoundment provisions of state Vehicle Code, provided sufficiently standardized criteria regulating the scope of inventory searches of automobiles, including closed containers found inside, notwithstanding that the policy did not specifically mention closed containers. The standardized criteria could adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or equivalent terms because the policy explicitly set out its objectives to protect owner's property and shield officers from claims of loss or damage, and sufficiently regulated the scope of the search.
Friday, October 01, 2010
Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo
In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U.S.C. s 2703.
In this case, the Government – without first obtaining a warrant or subpoena or consent of the cell phone subscriber – applied for a court order requiring disclosure of CSLI as authorized under Sec. 2703(c). The Magistrate Judge denied the application, concluding that nothing in the Act authorizes the Magistrate Judge to order a provider’s covert disclosure of CSLI absent a showing of probable cause under Federal Rule of Criminal Procedure 41. The District Court affirmed the Magistrate Judge’s denial.
Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.
United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses. The most significant legal challenge involved a willful blindness jury instruction.
Stadtmauer argued that the Supreme Court’s opinion in Cheek v. United States, 498 U.S. 192 (1991), precluded a willful blindness instruction. Cheek holds that criminal tax liability does not attach to a person who, in good faith, is ignorant of a legal duty, misunderstands that legal duty, or believes that such a legal duty does not exist. In accord with several other circuits, the Third Circuit concluded that a willful blindness instruction does not run afoul of Cheek, because where the evidence supports a finding that a defendant intentionally insulated himself from knowledge of his tax obligations, the defendant cannot claim good faith ignorance.
In addition,Stadtmauer also challenged as an abuse of discretion the District Court ‘s admitting lay testimony by his company’s accountant about Stadtmauer’s knowing that the tax returns were false. Specifically, this involved Staudtmauer asking the accountant “whether the returns were okay to sign”, which the accountant understood to mean whether the IRS would be likely to detect the problems with the returns. The Third Circuit held that while this was a close question under Federal Rule of Evidence 701, it was not an abuse of discretion, but even if it were, the error was harmless in the context of the record as a whole.
Two wins in the Third Circuit interpreting whether PA aggravated assault statute is an ACCA predicate: United States v. Marc Harris and United States v. Samuel Jenkins
United States v. Marc Harris United States v. Samuel Jenkins In United States v. Harris , -- F.4th --, 2023 WL 3494771 (3d Cir. May 17, 20...
Second Rule 404(b) Ruling of the Week: Convictions for Simple Possession of Cocaine Were Not Admissible to Prove Knowledge or Intent to Distribute in a PWID CaseThe Third Circuit issued another strongly worded precedential Rule 404(b) opinion today, explaining that the strictures of the rule are oft...
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Third Circuit reaffirms that sentencing courts must only give deference to Sentencing Commission's interpretation of genuinely ambiguous Guidelines' provisionsIn United States v. Malik Nasir , Appeal No. 18-2888 , the Third Circuit finally resolved defendant Malik Nasir's appeal after review be...