Thursday, November 29, 2012

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligible for diversity visas, but were unable to either complete the necessary paperwork, pay the required fees, or afford the airfare to travel to the United States.

A co-conspirator paid the required fees of persons who were eligible for the diversity lottery and assisted them in completing their paperwork. In exchange, the applicants were required to falsely represent that other unrelated individuals were their spouses and/or children, so that those individuals could also obtain visas to enter the United States under the program.

Kouevi was responsible for coordinating the preparation of false documents used to support the fraudulent visa applications, and he tutored participants in the details of their false identities to prepare them for their interviews at the American Embassy in Togo. He also accompanied visa applicants to government offices in Togo and helped them acquire false passports, marriage certificates and similar documents required to support their visa applications. This included obtaining additional false evidence of purported relationships including fake wedding rings and fake wedding pictures. He quizzed the applicants about the details of their identities and otherwise coached them in how to successfully interview at the American Embassy. He then took them to the American Embassy for their interviews. In return, his co-conspirator helped him fraudulently obtain his own visa and paid his costs for the visa and airfare to the United States.

Kouevi was subsequently charged in a two-court indictment with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 37, and visa fraud, in violations of 18 U.S.C. § 1546(a). He was convicted on both counts and sentenced to 26 months imprisonment.
Kouevi contends that his conviction for violating 18 U.S.C. § 1546(a) should be reversed because the first paragraph of the statute he was convicted of violating does not criminalize activities involving authentic immigration documents. His argument attempts to distinguish between producing a counterfeit or fraudulent passport or visa and obtaining an authentic passport or visa by fraudulent means.

The Court held that the plain language of the statute reveals that the first paragraph of 18 U.S.C. § 1546(a) prohibits the possession or use of authentic immigration documents which are obtained by fraud.

Friday, November 09, 2012

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was challenging the dismissal of the § 2255 petition, did not move to dismiss the appeal as untimely. Instead, one month after the notice of appeal was filed, the government moved to enforce the appellate waiver and for summary affirmance.

The Court directed the parties to brief the issue of timeliness under Rule 4(b). The government challenged the appeal as untimely. The Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief and dismissed Mr. Muhammad's appeal as untimely. However, the Court "strongly encouraged" the government to file a motion to dismiss a criminal as untimely at the outset of the appeal in order to save the time and costs associated with ordering transcripts and preparing full briefs. Finally, the Court also noted, in dicta, that it also agreed with other courts of appeals that a court may sua sponte raise untimeliness under Rule 4(b).

Thursday, November 01, 2012

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its own and the district court’s jurisdiction., but otherwise deemed the government’s arguments waived. It held that a district court has subject matter jurisdiction to consider a second motion for relief pursuant to 18 U.S.C.A. § 3582(c)(2), based on a retroactive Guidelines amendment, as Congress did not clearly state its intent to limit jurisdiction to one motion.

Reaching the merits of Weatherspoon’s appeal, the Circuit found that his sentence, stated in the "c" plea, was not explicitly based on his Sentencing Guidelines range so as to permit a sentence reduction under Freeman v. United States. Here, the agreement provided for a fixed sentence of 120 months’ imprisonment. Looking to the "four corners of the plea agreement," the Court concluded that the agreement was not clear that the sentence was based on the Guidelines. The agreement did not in any way identify or rely on the range. Because the agreement was not explicitly based on his Guidelines range, the district court properly denied Weatherspoon’s motion.

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

 The Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009).   The district court here failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the request for a variance. Accordingly, the sentence was procedurally unreasonable.

With respect to Begin’s state-federal disparity argument, the Circuit found that state-federal disparities are NOT relevant under § 3553(a)(6), and the district court was not required to address that part of Begin’s argument.

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

United States v. Turlington, --- F.3d ----, 2012 WL 4237611 (3d Cir. Sept. 21, 2012) (published Oct. 16, 2012). In this case defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). The Fair Sentencing Act amendments reduced the maximum term of imprisonment for Turlington’s offense, such that it is now a class B felony, which would now permit only three years of imprisonment of revocation of supervised release.

The Circuit held that where an underlying offense was a class A felony at the time of conviction, but has since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), is still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction.

Tuesday, October 16, 2012

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

United States v. Ware, --- F.3d ----, 2012 WL 4216831 (3d Cir. Sept. 21, 2012). 
Defendants, each designated career offenders, were ultimately sentenced based on the crack guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010. In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2)."). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining "applicable guideline range" to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of "based on" in the federal statute as defined by Freeman. The government appealed.

 In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission's new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:
... Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)....
U.S.S.G. § 1B1.10 cmt. 1(A). Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of "based on" in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced "based on" a sentencing range that has been lowered, also requires any reduction be "consistent with applicable policy statements issued by the Sentencing Commission." Therefore, the plain language of the statute incorporates the Commission's statements which, although narrowing eligibility, do not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term "based on," but instead an additional limit on eligibility, therefore the meaning of the term "based on"—and the holding of Freeman—were not relevant.


Court Reverses in CP Case where Court did not View Challenged CP Evidence / Finds Unfair Prejudice

United States v. Cunningham, --- F.3d ----, 2012 WL 4075875 (3d Cir. Sept. 18, 2012).  Cunningham was charged in a three count indictment with receiving, possessing, and  distributing child pornography. Prior to trial, Cunningham filed a motion to preclude the government from showing the jury any of the child pornography videos recovered from his computer. He asserted that because he was stipulating that the government exhibits constituted child pornography the probative value of the evidence was diminished. The district court denied the motion, permitting the government to present "representative samples"and file names. The Court also directed the parties to meet and attempt to reach a stipulation and a joint cautionary jury instruction. The parties agreed to a stipulation advising the jury that the video files obtained from Cunningham’s IP address and physical address depicted real children under the age of 18 engaging in sexually explicit content.

After the government provided defense counsel with the video clips that it intended to present at trial, Cunningham filed another motion to limit the evidence, describing the extraordinarily violent videos in graphic detail. Cunningham objected to admission of the excerpts and alternatively proposed that the evidence should be to still images, absent any display of bondage or actual violence, absent any audio, and with faces obscured. In response, the government agreed not to use audio, but objected to the other limitations as an attempt to "sanitize" and mitigate the force of its evidence. The government proposed to present seven, several-second video clips.

The district court denied Cunningham's motion on the papers, without viewing the evidence, concluding that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Cunningham filed another motion to reconsider admissibility, arguing that his defense was that someone else had downloaded, possessed, and distributed the child pornography at issue, and, with the stipulation already made, there was little value in presenting the video excerpts. He also requested that the Court view the videos prior to ruling on his motion. The district court again denied the motion, stating that the descriptions of the video excerpts were sufficient for the court to rule.

Prior to voir dire, Cunningham requested that the district court advise all potential jurors that, if selected, they would "see a movie that shows a prepubescent minor being sexually penetrated by an adult," and "see graphic images of children, their genitals, and videos of illegal sexual acts, including oral sex, sexual intercourse, and graphic, violent, sexual images." Instead, the court advised and asked all of the potential jurors:

[T]his case involves an accusation that the Defendant received, possessed and distributed child pornography. During this trial you will be shown child pornography including graphic images and hear descriptions of computer files including graphic and offensive file names which will certainly be disturbing to most if not all of you. Regardless of your feelings on this subject matter and the graphic nature of the material presented, are you able to render a fair and impartial verdict based solely on the evidence presented in this court and my instructions to you on the law?

Some jurors were excused for cause. Other jurors were further questioned individually at sidebar, where more detailed information on the pornography was revealed, several of those were also excused.

During the trial the government presented two separate videos, containing seven video excerpts, including pre-pubescent children being bound, raped, and violently assaulted. Before and after each of the video excerpts were played, the district court read a cautionary instruction, which directed the jury to view the images in a fair and impartial manner. The jury convicted Cunningham on all counts.

On appeal, Cunningham argued that the district court erred in both failing to view the video excerpts before ruling on their admissibility and in failing to exclude or limit them given his stipulation to their criminal content. He further argued that the Court abused its discretion during voir dire by refusing to provide potential jurors with more detail describing the videos that would be presented during trial.

Procedural Error. The Circuit first found procedural error in the district court’s failure to view the challenged evidence. Relying on similar cases from the Ninth and Seventh Circuits, the Court found that the court "could not have fully assessed the potential prejudice" to Cunningham "and weighed it against the evidence's probative value" without looking at the video excerpts. Having read the written descriptions was not sufficient and should have "heightened the District Court's awareness of the need to see the videos to assess their prejudicial impact before it decided to admit them."

Substantive Error. The Court next held that the district court abused its discretion under Rule 403 by not limiting or excluding the video excerpts. The Court looked at both the elements of the charged crimes and the stipulations between the parties. Although limited by the stipulation, the Court found some probative value in the video clips, "a tendency to show that the offender knew the videos contain child pornography" and the persuasive impact of evidence. This minimal probative value, however, was subject to the law of diminishing returns, and the value of each clip was reduced by the one that preceded it. The aggregate risk of unfair prejudice was "tremendous," as the Circuit could tell just from the descriptions. Two clips in particular, caused the Court to conclude: "Even in the cesspool of evidence presented here, Excerpts 1 and 3 in the second set of video clips stand out. We will not repeat the description of them but note simply that their violent and sadistic character likely created "disgust and antagonism" toward Cunningham which risked "overwhelming prejudice" toward him." Therefore, the Court concluded, the district court abused its discretion in admitting those particular videos. Further, the Court could not conclude their admission was harmless.

Voir Dire. The Court rejected Cunningham’s argument that the district court abused its discretion by failing to publish the video excerpts to potential jurors, citing the district court’s efforts to inform the potential jurors of the graphic evidence to be expected and excusing those who indicated they could not be fair and impartial. The Court left it to the district court’s discretion on remand "to determine if more detailed information about the case would be advisable to ensure a fair and impartial jury."

Discovery for Organizational Defendants / Invited Error / Inconsistent Verdicts

United States v. Maury, --- F.3d ----, 2012 WL 4074565 (3d Cir. Sept. 17, 2012).  In a lengthy decision affirming convictions for organization and multiple individual defendants under the Clean Water Act, the Court addresses multiple issues and, in short, held: (1) Rule governing discovery rights of organizational defendants mandated disclosure only of the binding statements (Fed. R. Crim. P. 16(a)(1)(C)(i), (ii)), that related to alleged misconduct and not of all statements made by employees; (2) "invited error" doctrine applied and prevented defendants from objecting to district court's actions in giving the lesser-included offense and simple negligence instructions which they had requested; and (3) fact that the jury convicted defendants only of lesser-included offense of negligently violating the Clean Water Act, rather than any willful violation, and at same time found them guilty of knowingly participating in conspiracy to violate the CWA, was not necessarily inconsistent.

After an eight-month trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of violations of the Clean Water Act (CWA) and Clean Air Act (CAA), including conspiring to commit environmental pollution and worker safety violations, impeding their investigation, and substantive violations of the CWA and CAA. These offenses included unlawfully pumping contaminated water, burning drums of paint waste, and concealing several work-related accidents, one resulting in the death of an employee. Defendants raised multiple arguments both jointly and individually. The Court principally addressed the adequacy of pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure, the sufficiency of the jury instructions, and the alleged inconsistency of the verdict.

DiscoveryDiscovery in the case was contentious, particularly regarding statements of company employees. Initially, the district court granted a protective order allowing the government to defer production of discoverable statements by current and former employees until 30 days before the start of trial. Defendant’s subsequently filed several motions to compel discovery and also argued that, despite the protective order, they were entitled to all statements made by "co-conspirators," as the government intended to "bind" the company by the statements of those co-conspirators, as well as statements of employees whose conduct would bind the company. The Circuit noted that these requests did not concern the scope of Rule 16(a)(1)(C), but what Defendants were entitled to prior to 30 days before trial. The district court denied the motion to reconsider the protective order.

Consistent with the protective order, the government ultimately produced the withheld Rule 16(a)(1)(C) materials for 24 witnesses. Portions were heavily redacted, purportedly pursuant to the scope of Rule 16(a)(1)(C) which reads:
(C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:
(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

For employees who would bind the company under subsection (i), the government produced all oral statements that it intended to use at trial, and all written statements discussing issues on which the employee had the authority to bind the Company. For those who would bind the company because of their participation in specific conduct under subsection (ii), the government produced all oral and written statements discussing that specific conduct. Other statements from these individuals – statements unrelated to the charged conduct or observations of the conduct of others – were redacted. Defendants objected to the redactions, but did not object to the scope of the government's reading of Rule 16(a)(1)(C). Unredacted copies were produced as Jencks material prior to the testimony of each witness.

On appeal, Defendants argued that the district court erred in its reading of Rule 16(a)(1)(C) and deprived defendants of critical discovery, arguing that the discovery received under subsection (ii) was erroneously limited to statements by employees about specific misconduct, rather than any statements made by the employees. Finding that defendant’s did not preserve an objection to the actual scope of discovery under subsection (ii), the Circuit reviewed for plain error and rejected defendants’ claim.

The Court looked at the purpose of Rule 16(a)(1)(C), to apply the individual-defendant discovery rules to organizational defendants. Looking at subsection (ii), applying those rules to employees who engage in illegal conduct within the scope of their jobs and then make some statement about having done so, the Court held that the "conduct constituting the offense" and the ability "to bind the defendant in respect to that alleged conduct" contemplates statements regarding only the conduct itself. It is only in this context that the employee "speaks" on the behalf of the company. In addition, a broader interpretation would provide an organizational defendant with broader rights than those of individual defendants.

Jury InstructionsDefendants also challenged the district court's instructions to the jury, arguing that the court erred, first, in defining the mens rea for a misdemeanor violation of the CWA, and second, in refusing to include language stating that a showing of recklessness could not meet the mens rea for the charged offenses which required a "knowing" or "willful" violation.

Although the indictment charged felony (knowing) violations of the CWA, defendants requested that the trial court also instruct on the lesser-included misdemeanor offense, which penalizes negligent violations of the Act. In that regard, defendants requested that the court instruct the jury that a "person negligently violates the Clean Water Act by failing to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances." A simple negligence instruction.

On appeal, defendants objected to the simple negligence instruction arguing that a showing of gross negligence was required, based on the subsequently adopted Third Circuit Model Jury Instructions and Supreme Court decision in Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007), a case analyzing and comparing use of the terms "willful" and "reckless" in the civil and criminal provisions of the Fair Credit Reporting Act. The Circuit declined to find that Safeco – addressing an entirely different statute – constitutionally altered, or altered at all, prior caselaw addressing the CWA. Accordingly, defendants were barred from relief by the invited error doctrine, and in any event, would not have overcome plain error review.

The Court also rejected defendants’ assertion that, in addition to an instruction that negligence was not a valid theory of liability on the felony counts, the district court should have included an instruction explaining that "recklessness" was likewise not sufficient to prove "knowing" conduct for a felony conviction. The Court found that the district court was well within its discretion to decline out of concern about confusing the jury and because the required intent was already addressed in other instructions defining "knowing," "willful" and "intentional" conduct.

Inconsistent VerdictsThough charged with felony violations of the CWA, (§ 1319(c)(2)) , two defendants, Prisque and Davidson, were convicted of lesser-included misdemeanor or negligent violations (§ 1319(c)(1)(A)). The two were also convicted, however, of knowingly and willfully participating in a conspiracy with the specific objective of violating the CWA. Defendants argued that these verdicts were mutually exclusive and that the conspiracy convictions should be vacated. The Court declined, explaining that the two were convicted of multiple objectives underlying the conspiracy charge, and even if some degree of inconsistency existed between the misdemeanor convictions under § 1319(c)(1) of the CWA and the conspiracy under 18 U.S.C. § 371, the conspiracy conviction could still stand based on the jury's verdict on the remaining underlying offenses. The verdicts were not "fundamentally at odds with one another."

Friday, September 28, 2012

Court articulates factors for egregious and widespread violations of Fourth Amendment and whether consent is voluntary

In Oliva-Ramos v. Attorney General of the U.S., --- F.3d ----, 2012 WL 4017478 (3d Cir. Sept 13, 2012), an appeal from an order of removal and denial of the petitioner’s motion to reopen the proceedings, the Third Circuit remanded for proceedings to determine whether a 4:30 a.m. ICE raid into an apartment, with five or six armed officers, violated the Fourth Amendment and similar regulatory provisions. The officers presented an administrative arrest warrant for one person at the apartment of her sister. The subject of the warrant was not home, but the officers, with questionable consent by the sister, entered the apartment, woke everyone inside, questioned them, blocked their exit, kept them sitting down, and eventually arrested anyone who could not document he was legally present in the United States. The arrestees were handcuffed, placed in a van, and driven to other locations, while agents conducted more raids and filled the van with more people. An immigration judge ordered Oliva-Ramos’ removal and the BIA affirmed. While on appeal to the BIA, Oliva-Ramos submitted additional documentation, obtained through a FOIA request by a law school clinic, to support his argument that the team that conducted the raid engaged in a consistent pattern of constitutional violations. Although, in the immigration context, the exclusionary rule is only applicable where constitutional violations are “egregious” or “widespread,” the Third Circuit collected useful guiding principles to analyze if a defendant can document a pattern of improper conduct, including whether there were intentional violations of the Fourth Amendment, the seizure was gross or unreasonable and without plausible legal ground (e.g., initial stop is unusually lengthy, unnecessary and menacing use of show of force), there was illegal entry of homes, arrests occurred under threats, coercion, or physical abuse, and any seizures or arrests were based on race or perceived ethnicity. The Court remanded for consideration of these factors. The Court also remanded for a better record of whether, under the totality of the circumstances, consent was voluntarily given. Factors to consider included: the setting, the parties' verbal and non-verbal actions, the number of officers and displays of force, the age, education, and intelligence of subject, whether the subject was advised of her constitutional rights, the length of the encounter, the repetition and duration of questioning, and the use of physical punishment.

Monday, September 24, 2012

When Considering a Request By the Government to Modify the Terms of Supervised Release, a Court May Not Impose Any New Terms That Would Create a Greater Deprivation of Liberty Than Necessary to Achieve The Sentencing Goals Established in 18 U.S.C. §3553(a).

     In United States v. Murray, Nos. 11-3196, 11-3197 (3d Cir. September 5, 2012), the Third Circuit considered the question of when it is appropriate for a district court to modify the conditions of supervised release.  District courts have the authority under 18 U.S.C. §3583(e)(2) to change the terms of supervised release after proper consideration of the factors listed in 18 U.S.C. §3553(a).  Federal Rule of Criminal Procedure §32.1(c) requires that a hearing be held before any change in supervision conditions.  Also, the defendant has a right to attend the hearing with his attorney and present mitigating arguments.  The Third Circuit held, in this case, that a district court may only grant a request to modify the terms of supervised release when the changes will not result in a greater deprivation of liberty than is necessary to achieve the purposes of sentencing set forth in §3553(a). When approving new terms and conditions, the district court must explain how the changes are consistent with the goals of sentencing.  The appellate court also reiterated the purpose of supervised release is to promote reintegration into society, not to further punish defendants. 

    Turning to the facts of this case, appellant Charles Murray pled guilty to one count of illicit sexual conduct with a minor (18 U.S.C. §2423(b)) in the District of New Jersey and one count of possession of child pornography (18 U.S.C. 2252(a)(4)(b)) before the Eastern District of Pennsylvania.  He served an aggregate term of 95 months in prison for these offenses and was also sentenced to two concurrent terms of three years of supervised release.  Both federal courts imposed special conditions of supervised release related to the nature of his offenses.

    When Mr. Murray was released from prison, he relocated to a town near Pittsburgh and supervision was transferred to the Probation Office in the Western District of Pennsylvania.  Probation sought to modify the terms of supervision to include additional requirements.  Mr. Murray opposed the modifications and additions, arguing that he had not violated any of the existing terms and that Probation had not provided any reason why the original conditions were not sufficient. In granting Probation’s request, the district court simply stated that it did not find any “meaningful difference” between the existing conditions and the modified terms.  The district court then granted the request making only a conclusory statement that the new conditions comported with §3553(a) and would be “positive” for Murray.  

    On review, the Third Circuit first found that appellant’s relocation to another federal district was a qualifying “changed circumstance,” giving the district court authority to review Probation’s request for a modification of the terms and conditions of supervised release.  But the Third Circuit remanded the case because the district court’s ruling was too vague and conclusory, failing to discuss and apply the §3553(a) factors.  The appellate court ordered the district court to clarify why the new conditions were not greater than necessary to achieve the §3553(a) sentencing goals, especially since there was no suggestion that the original terms were not sufficiently effective. The Third Circuit particularly expressed the need for restrictions on access to sexually oriented materials depicting adults to be narrowly tailored, in light of the First Amendment.

Sunday, September 23, 2012

Weapons suppressed: random male observed in a conversation being shown a gun did not give reasonable suspicion to detain him, and subsequent flight did not elevate encounter to probable cause to arrest.

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012),, undercover officers were parked on a block in Newark, which was not found to be a high crime area, but in which there were two, recent unrelated incidents involving guns: two months before a shooting occurred, and one month before there was a domestic violence report of a man threatening a woman with a gun. The officers observed the defendant, whom they did not know, come out of a multi-unit building and stand on the porch. Two men approached, and the defendant walked down from the porch to speak with them. The conversation appeared ordinary and then one of the approaching men took from his backpack and showed to the defendant what appeared to be a gun. The officers approached and the men ran. The defendant ran into the building, up two flights of stairs, and attempted to enter his apartment. Officers tackled him in the doorway to the apartment and there were weapons in plain view. The Third Circuit reversed the District Court's denial of suppression. (McKee, J.) The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the defendant had looked at the gun a third party showed him and also engaged in a brief conversation. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspiciion to detain and investigate. Unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. Judge Hardiman dissented, finding the record supported the District Court's finding that officers had reasonable suspicion to believe the defendant was about to engage in a gun transaction, and so, coupled with the defendant’s flight, which given the circumstances could be interpreted as evidence of a guilty conscience, gave the police probable cause to arrest.

Thursday, September 20, 2012

The Prohibition Against General Sentences Does Not Apply to Non-Guideline Sentences.

United States v. Martorano, No. 11-2864 (3d Cir. September 5, 2012)

    George Martorano was charged with nineteen counts in relation to the wholesale distribution of drugs, including conspiring to distribute drugs and supervising a Continuing Criminal Enterprise (CCE). He pled guilty to all nineteen counts.   In 1998, he was sentenced to life in prison. The district court did not issue a sentence for each individual count, but rather imposed a general sentence of life imprisonment. Notably, life imprisonment exceeded the statutory maximum on 18 of the 19 counts; only the CCE count allowed for a life term.

     Mr. Martorano filed numerous appeals and post-conviction motions over the years. In this appeal, Mr. Martorano argued that under the Third Circuit’s holding in United States v. Ward, 626 F.3d 179 (3d Cir. 2010), his general sentence was illegal. In Ward, the Court reversed the 25-year general sentence, which exceeded the statutory maximum on 3 of the 5 counts, because there was not enough information to determine whether the 25 year sentence applied to all 5 counts. The Third Circuit rejected Mr. Martorano’s argument.

     Initially, the Third Circuit noted that it has never held that general sentences are "illegal per se." The Court further explained that Ward was based on U.S.S.G. §5G1.2, which requires courts to impose a sentence on each count. Ultimately, the Third Circuit agreed with the district court that the holding in Ward does not apply to general sentences imposed outside of the Sentencing Guidelines. Since Mr. Martorano was sentenced before the Guidelines took effect, his sentence was not governed by §5G1.2 and the holding in Ward was not controlling. He was therefore not entitled to relief and the sentence was affirmed.

     Although the Third Circuit acknowledged that it had never held general sentences to be per se erroneous, it did reaffirm its position that general sentences are problematic and that in cases with multiple counts a detailed sentence for each count is greatly preferred.

     The appellate court also rejected Mr. Martorano’s second argument that the general sentence violated the Double Jeopardy clause by imposing separate concurrent sentences for the conspiracy to distribute drugs count and for supervising a CCE count. The Court ruled that even assuming that the conspiracy charge was a lesser included charge of the CCE count, Mr. Marorano could not be granted relief on this theory because the higher sentence for the CCE sentence was still within the district court’s discretion.

Wednesday, September 19, 2012

Crack reduction cases: Court upholds denial of proportional reductions below amended guideline range to account for variance in original sentence

In United States v. Berberena (Sept. 11, 2012), , the Court affirmed denials of sentence reductions below the amended Guideline range in two crack reduction cases. When Amendment 750 to the Sentencing Guidelines implemented the Fair Sentencing Act by reducing the crack-powder disparity, the defendants moved for sentence reductions under 18 U.S.C. § 3582(c)(2). Both defendants had received below Guideline sentences. In making Amendment 750 retroactive, the Sentencing Commission also adopted a new version of U.S.S.G. § 1B1.10, the policy statement governing “Reduction in Term of Imprisonment as a Result of Amended Guideline Range.” As amended, §1B1.10 provides that “the court shall not reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A) (Nov. 2011). The one exception is for defendants who provided substantial assistance to the government. § 1B1.10(b)(2)(B) (Nov. 2011). Before the 2011 amendments, the Guidelines permitted proportional reductions in sentence to account for departures of any kind, although they were discouraged when a below Guidelines sentence was based on a variance. § 1B1.10(b)(1)(B) (Nov. 2007). Here, neither defendant had cooperated and the District Courts denied sentence reductions below the amended Guideline range. The Third Circuit rejected the defendants’ three challenges to the binding policy statement in § 1B1.10. First, the Court found the Sentencing Commission had the statutory authority under the Sentencing Reform Act (SRA), 28 U.S.C. § 994, to limit the sentencing reductions in 3582 proceedings. Next, the Court found that the policy statement did not violate separation-of-power principles: it was not an impermissible delegation of legislative authority, nor did it infringe upon the exercise of judicial authority because the Commission was appropriately situated within the judiciary. Finally, the Court found that the Commission was not required to comply with the Administrative Procedure Act’s notice-and-comment requirements when issuing policy statements.

Friday, August 31, 2012

More from Court on Hobbs Act Sufficiency

In US v. Powell, No. 11-2432 (Aug. 30, 2012), the Court looks again at sufficiency of the evidence to prove interstate commerce in a Hobbs Act prosecution. Powell and his co-defendant followed merchants from their businesses to their homes to rob them. The Court characterized the question on appeal as: whether a robbery of an individual in her home requires proof of a more substantial connection to interstate commerce than a robbery committed at a place of business. Here, because Powell specifically targeted his victims because they were business owners and he believed they would be in possessions of business proceeds, his crimes satisfied the Hobbs Act’s jurisdictional nexus. The natural consequence of this would be an actual or potential effect on interstate commerce. The Court also noted that the convictions could have been sustained under a "depletion of assets" theory.

Giving the Third Circuit model instruction in this case was appropriate (the defense had wanted an instruction that when the robbery takes place in a home, the effect on commerce must be substantial). In the Court’s view, this case demonstrates the hazard in adopting any bright-line rule about business v. personal premises in Hobbs Act cases. Each case must be decided on its facts, the Court notes, citing examples of cases that have not been held to fulfil the jurisdictional nexus.

See the Court's opinion earlier this week in Shavers for more on the Hobbs Act & ISC.

Court Rejects Third-Party Appeal; No Implied Right to Victim Appeal Under MVRA

In U.S. v. Stoerr, No. 11-2787 (Aug. 28, 2012), Stoerr’s employer, Sevenson Environmental Services, appealed the restitution order in his case, arguing that because it had voluntarily repaid Stoerr’s victim, the restitution order should have been to Sevenson, instead of the victim. The Court dismissed the appeal, finding that Sevenson, as a non-party, lacked standing to appeal.

Stoerr solicited and accepted kickbacks in his work overseeing a Superfund cleanup, and he passed the cost of the kickbacks on to victim Tierra, a company not receiving kickbacks, and to the EPA. When Sevenson learned of this, it compensated Tierra, and both brought a civil action against Stoerr and sought restitution in this proceeding. The district court denied restitution, holding that Tierra was the victim, and that Sevenson could pursue the civil remedy. The government moved to dismiss Sevenson’s appeal.

Sevenson acknowledged the presumptive rule that, as a non-party, it could not appeal; however, it argued that it was aggrieved, and should be permitted to appeal in this circumstance. The Court joined all the other Circuits to consider the question (DC, 8th, 9th, 10th, 11th) in holding that it would not permit a third party to disturb a defendant’s sentence. In so doing, it (1) held that the MVRA does not contain an implicit right to victim appeals (distinguishing the 6th Cir. case, Perry, which permitted a victim suit over a lien under the MVRA); and (2) noted that precedent on third-party appeals is generally in civil, not criminal, cases.

Court Rejects Challenge to USVI Gun Statute

In U.S. v. Fontaine, No. 11-2602 (August 28, 2012), a Virgin Islands case, the Circuit held that the local statute criminalizing unauthorized possession of an "imitation" firearm during a crime of violence was not void for vagueness. It also held that the government had proved its case against Fontaine.

The statute reads: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm . . . loaded or unloaded . . . shall be sentenced to imprisonment of not less than one year nor more than five years except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be . . . imprisoned not less than fifteen (15) years nor more than twenty (20) years.

Fontaine and an accomplice robbed two victims at gunpoint. Police arrested Fontaine nine days later, but never recovered the gun. Although Fontaine threated to shoot the gun during the robbery, when he pulled the trigger, it didn’t fire. There was thus no evidence of its operability, and the government was forced to proceed on the "imitation" prong of the statute.

Fontaine argued that the statute was vague. The Court dispatched this argument readily. It noted that the plain meaning of "imitation" gave ample notice who might be punished. Particularly in a case like Fontaine’s, where the imitation gun was used just like a real gun would be, the Court continued, a defendant could have no complaint.

Fontaine also argued that the government had the burden to prove that he was not "authorized" to possess an imitation firearm. The Court held that the statute should be read simply to require proof that the defendant is not authorized to possess a firearm. Persons who are not authorized to possess firearms are also not authorized to possess a firearm in a crime of violence or possess an imitation firearm in a crime of violence. Any other reading, the Court argues, would be absurd. (Perhaps not so absurd, given that Judge Cowen dissents on this point, in a 10-page opinion?)

Court Finds Proof of Witness Tampering Insufficient

In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.

On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate. (This opinion, and Powell, from a few days later, contain good discussions of the case law in this area, thanks to the strong challenges made by the defendants. Check them out for your next ISC case.)

The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.

The Court affirmed the admission of suggestive show-up identifications, ruling that the identifications were reliable enough to justify their admission. It affirmed the admission of testimony regarding a photo array and a lineup, finding neither to be unduly suggestive. It finds a cell-block "mishap" in which one defendant was seen by a witness who had not previously given a reliable description potentially grounds for suppressing the witness’ identification, but finds that admission of the ID was harmless error, given the other evidence against the defendant.

The Court also affirmed admission of 404(b) evidence of an investigation of a Post Office robbery in which the defendants were suspects. The evidence was properly admitted because (1) the government used it to support its witness tampering theory that a federal proceeding was foreseeable; (2) a related search uncovered evidence admitted in the government’s case in chief; and (3) it explained references in recorded calls admitted in the government’s case in chief.

The Court also affirmed the denial of a mistrial after a witness testified: "Having me testify right here, like I’m afraid for my life. By me saying what I said in this courtroom today, there’s no way possible I can stay in Philadelphia. Like that’s a known fact right there. That’s a given, like. For a fact, I know G Bucks [Shavers] is a killer." This was a single comment by a witness who was substantially impeached. The Court gave a stern curative instruction, and there was substantial evidence against Shavers.

The Court rejected a (plain error) Confrontation Clause challenge, citing Berrios, because the statement was not testimonial, it was made in a casual conversation.

Finally, an unincarcerated defendant has no privacy interest against admission of recorded phone calls with incarcerated defendants, particularly when he has been in the same prison before, and presumably knows the rules about recorded conversations.

Wednesday, August 22, 2012

Implied bias doctrine disqualifies jurors who are close relatives of the parties involved in a trial, but does not categorically impute bias to coworkers of key trial witnesses.

In U.S. v. Ricardo Mitchell, No. 11-2420 (3d Cir. Aug. 7, 2012), Defendant Mitchell was convicted on charges relating to his possession of a firearm with an obliterated serial number. During the judge’s voir dire, Juror No. 28 said that she was a "close cousin" of the prosecutor, and Juror No. 97 said that he was an employee of the police department who worked with Government witnesses. Neither party posed additional questions to the jurors, challenged them for cause, or used a peremptory strike, and both were seated as members of the jury.

Later that day, Mitchell filed a motion to strike Juror 97 for cause. The District Court denied the motion. The jury found Mitchell guilty, and he was sentenced to 15-years’ imprisonment. Mitchell appealed to challenge the presence of both Juror 28 and Juror 97 on the jury.

Addressing the doctrine of implied juror bias — a legal question focusing on whether an average person in the juror’s position would be prejudiced, regardless of actual prejudice — the Court held that it can disqualify jurors "whose connection with the litigation makes it highly unlikely that they can remain impartial adjudicators," citing its earlier dicta in U.S. v. Calabrese, 942 F.2d 218, 224 n.2 (3d Cir. 1991).

Because Mitchell first challenged Juror 28 on appeal – arguing that she should have been excused for cause because, as a "close cousin" to the prosecutor the law categorically imputes bias — the Court reviewed the issue for plain error. The Court observed that a juror’s "consanguinity is the classic example of implied bias," noting Chief Justice Marshall’s discussion in Aaron Burr’s trial for treason. See U.S. v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807). But the Court limited the parameters of the implied juror bias doctrine to "close" relatives, rather than distant relatives "whose relationship is sufficiently attenuated so as not to undermine the appearance of fairness in judicial proceedings." Here, the Court found that the record provided only a "bare-bones" description of Juror 28's relationship with the prosecutor, precluding a clear finding as to whether she was a close or distant relative. Therefore, the Court remanded to the District Court for an evidentiary hearing, and if Juror 28 were found to be a close relative, then seating her was plain error requiring a new trial.

As to Juror 97, the Court found that the District Court did not abuse its discretion in denying the motion to strike. The Court found no basis to "fashion a new category of implied bias for coworkers of police officers who testify as witnesses in a criminal trial."

In a partial dissent, Judge Jordan asserted that Juror 97 should have been presumptively excluded under the implied bias doctrine.





Evidence seized in warrantless search of house admissible where police had mistaken but reasonable belief that the house was abandoned, based on totality of circumstances.

In U.S. v. Harrison, No. 11-2566 (3d Cir. Aug. 7, 2012), Defendant Khayree Harrison was charged with possessing crack cocaine with intent to distribute. The physical evidence against him — a gun, scales, pills, and crack cocaine on a table next to the recliner in which he was sitting — was obtained when police surprised Harrison in his rented house, having walked through the open front door without a warrant. Harrison moved to suppress the evidence seized during arrest without a warrant as violating the Fourth Amendment right against unreasonable search and seizure. The District Court denied Harrison’s motion to suppress, finding that although Harrison had a reasonable expectation of privacy in his rented house, the police acted under the reasonable (but mistaken) belief that the house was abandoned. Harrison was convicted at trial and sentenced to 62 months’ imprisonment. On appeal, the Third Circuit affirmed the conviction, holding that the District Court properly denied the suppression motion.

The Court recognized that establishing that a person has lost his reasonable expectation of privacy in real property by abandoning it is difficult to establish, but not impossible. Circuit Judge Fuentes wrote that "[b]efore the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned." Although the Court found that Harrison had not actually abandoned the rented house and so did possess a reasonable expectation of privacy, for Fourth Amendment purposes the issue was whether the police officers' mistaken belief that the house was abandoned was reasonable enough, under the totality of the circumstances, to justify their warrantless entry.

The police testified that they had observed this particular house over several months to be in a dilapidated condition, its backyard full of trash and overrun by weeds, and the front door unlocked and open.

The Court stated that it would be unreasonable for police to assume that a house is abandoned solely because it is poorly maintained — there is no "trashy house exception" under the Fourth Amendment. But here, police knew that the house had a history as a drug den and had evicted squatters in previous months, so they were familiar with its condition: they observed that the only furnishing was a single mattress on the top floor, drug debris was littered throughout the house, human waste filled the bathtub and toilets, and there was no evidence of running water or electricity.

The Court concluded that "[i]t is one thing to infer that person has abandoned his expectation of privacy in his home based on a one-time observation. It is quite another to observe that same property in that same dilapidated condition with a front door that is always open over the course of several months . . . . Given the combination of the rundown exterior, the always open door, the trashed interior, and the extended observations over time, the police officers were reasonable in their mistaken belief that the house was abandoned."

Monday, July 30, 2012

Phrase in federal assault statute, 18 U.S.C. § 113(a)(3), stating "without just cause or excuse," is an affirmative defense, rather than an element of the offense

In United States v. Taylor, No. 11-2875 (3d Cir. July 25, 2012), the Third Circuit was presented with the question of whether, by including the phrase "without just cause or excuse," in provision of the federal assault statute covering assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), Congress intended to convert justification from an affirmative defense into an element of the offense for purposes of the statute. The Court ultimately held that the existence of just cause or excuse is an affirmative defense to a § 113(a)(3) violation which the defendant must prove by a preponderance of the evidence.

18 U.S.C. § 113(a)(3) provides, in pertinent part:

Whoever, within the special maritime and territorial jurisdiction of
the United States, is guilty of an assault shall be punished as
follows ... Assault with a dangerous weapon, with intent to do bodily
harm, and without just cause or excuse, by a fine under this title
or imprisonment for not more than ten years, or both.

Section 113(a) lists seven types of assault, but the phrase "without just cause or excuse" is only found in subsection (a)(3), assault with a dangerous weapon.

Although the Court found a dearth of case law on this point, it concluded that the existing case law, including two on-point Supreme Court cases, supported its conclusion that the statute's "without just cause or excuse" language sets forth an affirmative defense. The Court noted that the phrase "without just cause or excuse" appears in a distinct clause of the statute, set off by commas from the rest of the statute and sets forth an exception to the offense. Additionally, the existence of just cause or excuse does not disprove the elements of assault under § 113(a)(3), but provides a justification to the offense which the defendant bears the burden of proving. Accordingly, the Court concluded that the district court did not err in failing to charge "without just cause or excuse" as an element of the offense.

Friday, July 20, 2012

Unlicensed Distribution of Prescription Drugs Not an 'Aggravated Felony'

In Borrome v. Attorney General, No. 11-1975 (July 18, 2012), the Circuit applies the "categorical" approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs is not an "aggravated felony."

The case reaches the Circuit by way of a removal proceeding instituted against a citizen of the Dominican Republic following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin. The term "aggravated felony" is defined by the Immigration and Nationality Act to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Under the categorical approach, "we must look only to the statutory definitions of the prior offenses, and may not consider other evidence concerning the defendant’s prior crimes, including the particular facts underlying a conviction" (alteration and quotation marks omitted).

The "case hinges," the Court explains, "on the relationship between prescription ‘drugs’ and ‘controlled substances.’" The statutory provisions criminalizing the unlicensed wholesale distribution of prescription drugs — 21 U.S.C. §§ 331(g) and 353(e)(2)(A) — do not define a form of "illicit trafficking in a controlled substance" because "while some prescription drugs contain chemicals that are also regulated as ‘controlled substances’ under the [Controlled Substances Act,. 21 U.S.C. § 801 et seq.], many do not." By the same token, the prior conviction was not for a "drug trafficking crime" under § 924(c)(2) because § 924(c)(2) defines "drug trafficking crime" to mean any felony punishable under the federal controlled substance laws.

In the course of its analysis, the Court states that it "is well established that the aggravated felony enumerating statute at issue here, [8 U.S.C. § 1101(a)(43)(B)], does not permit departure from the categorical approach nor does it invite inquiry into the underlying facts of conviction." Accordingly, the defendant’s guilty plea under an indictment alleging the wholesale distribution of Oxycontin — a prescription drug containing the controlled substance oxycodone — did not turn the conviction into an "aggravated felony."

Monday, July 16, 2012

Grant of Rule 29 Motion Based on Sufficiency Grounds and Issued After Jury’s Guilty Verdict Reversed

In United States v. Claxton, No. 11-2552 (July 9, 2012), the Third Circuit addressed an interesting issue of whether a rational fact-finder could conclude beyond a reasonable doubt that the Defendant knowingly participated in a drug trafficking organization.

Claxton was indicted with other individuals for participating in a drug-trafficking conspiracy, in violation of 21 U.S.C. § 846. The indictment alleged that the conspirators, including Claxton, sought to possess large quantities of cocaine in order to distribute that cocaine for “significant financial gain and profit”.

At the jury trial, after the Government rested its case, Claxton moved for a judgment of acquittal under Rule 29. The district court expressed concern about the sufficiency of the evidence introduced by the Government, but reserved judgment on the motion and submitted the case to the jury. The jury found Claxton guilty. Claxton then renewed his motion for judgment of acquittal, which was ultimately granted. The Government appealed.

The Third Circuit stated that a finding of guilt in a conspiracy case does not necessitate direct evidence and can be proven by circumstantial evidence. The Court then went through a factual discussion of Claxton’s interactions and found that he was identified at trial as a drug-trafficker by another co-conspirator; he repeatedly did the organization’s bidding; he was entrusted to transport large sums of money; he visited the place where the money was laundered; and he frequented the place where the drugs were stored and the meetings of the organization occurred. The Court reasoned that the totality of the circumstances strongly suggested that Claxton was aware of his role in the conspiracy and had the requisite knowledge requirement.

The Third Circuit noted that specific pieces of evidence tipped the scales in favor of inferring knowledge as opposed to other cases in which a judgment of acquittal was upheld. Specifically, the court stated that Claxton’s participation involved multiple transactions; it was based on his membership to a well-structured organization; and he was placed at the organizational headquarters on several occasions by eyewitness testimony of a fellow “member” of the organization.

The Third Circuit reviewed the trial record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence. It found that although a jury reviewing the testimony of the co-conspirator could have simply concluded that Claxton “kept bad company”, the verdict instead reflected that the jury found Claxton knew what he was involved in, and the Third Circuit was bound by that determination, so long as it was not irrational. The Court determined that the jury’s verdict was not irrational based on the totality of the circumstances. Unfortunately for Claxton, the case was remanded for him to be sentenced.

Wednesday, July 11, 2012

Circuit Invalidates Waiver of Counsel at Trial Because Court Misinformed Defendant re Maximum Penalty

       In United States v. Booker (3d Cir. 7/2/12),, the defendant represented himself at trial following an on-record colloquy in which the judge made a mistake on the sentencing range as to one count, telling the defendant he faced a minimum of five years instead of twenty-five. He also failed to advise the defendant that the maximum was life and that it must run consecutively with other counts. The panel (Greenaway for majority) finds that the waiver was structural error and requires reversal on all counts.

       Using language that may be of some use in attacking other uninformed waivers, the court holds that the waiver was invalid regardless of what effect the misinformation might have actually had on the defendant:

It is the District Court that bears the burden of ensuring that a defendant is acting voluntarily and with the appropriate knowledge before relinquishing his rights. Peppers, 302 F.3d at 130-31. Because we have been steadfast in requiring district courts to uphold this obligation, we see no reason to engage in an after-the-fact, subjective determination of what information did or did not influence Booker?s decision.
Although our resolution of this case is grounded in our jurisprudence regarding waiver of the right to counsel, we have also espoused similar notions regarding waiver in the guilty plea context. See Jamison v. Klem, 544 F.3d 266, 274, 276-77 (3d Cir. 2008). In Jamison v. Klem, we held that a guilty plea was not knowing and voluntary where the trial court failed to advise the defendant of the mandatory minimum that he would face as a result of pleading guilty. Because we found the waiver to be defective, we vitiated the guilty plea and granted the petitioner a writ of habeas corpus.

Claudia VanWyk
EDPA Capital Habeas Unit

Plain Error Rule Applies to Review of Honest Fraud Jury Instructions Administered Before Skilling; Extraordinary Circumstances Required Review of Waived Sentencing Claim

In United States v. Ashley Andrews, No 11-1239 (Third Circuit, June 4, 2012), The Defendant, Ashley Andrews, was a contractor whose company, GRM, could not get a government contract to repair Virgin Islands sewers without a Virgin Islands business license, which in turn required a “tax clearance” letter.  To get the tax clearance letter, Andrews listed one Ohanio Harris, a Special Assistant to the Governor of the Virgin Islands, as the president of GRM on the February, 2002 application for the license. Andrews had been president of GRM until January, 2002— he resumed that office in March, 2002.  In March, 2002, Harris and Andrews went to neighboring Tortola, where Harris introduced himself to an American engineering firm as the Governor’s special assistant, vouched for Andrews to the firm’s president, and told the firm he could get a meeting with the Governor of the VI to discuss awarding sewer construction work. Harris later testified that later that day Andrews gave him $2500 in cash for his services, which he used to pay his home mortgage. Also at this time, Harris held himself out as a liaison between GRM and Andrews and the VI Department of Public Works.  Harris arranged for Andrews to meet with the Governor, and later, Andrews asked Harris for help in getting the contract. Harris said he would do what he could, and Andrews promised him a job with GRM. Further machinations resulted in GRM getting a sole-sourced contract for the sewers.

            Consumation of the deal however was conditioned on GRM getting performance and payment bonds for 100% of the contract price. GRM’s accountant contacted a New York lawyer who in turn put GRM in touch with a company that faxed an emailed application and related paperwork to GRM.  The accountant emailed the completed paperwork back a days later. The completed application contained numerous false statements about Andrews’ personal and GRM’s corporate financial condition. Only the construction contract signed by the Governor was now required for the issuance of the bonds. Ultimately, the Governor of the Virgin Islands signed the contracts,  but before the bonds were issued, the United States, probably sensing something wrong, successfully sought to enjoin enforcement of the contract. (The sewer project itself was the result of a consent decree arising from a lawsuit by the United States against the Virgin Islands.)  Andrews then submitted a post-termination claim for roughly one-fourth of the contract price (about $750,000) for the time and resources GRM had expended pursuing the contract. Once again, Andrews’ paperwork contained numerous false claims.

            In 2004, Andrews, Harris and GRM's accountant were indicted. Harris pled guilty, while Andrews and GRM’s accountant went to trial. Following a mistrial, at the second trial Andrews was found guilty all charges: one count of conspiracy, in violation of 18 U.S.C. § 371, four counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and 2, one count of program fraud, in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2, one count of making a false claim upon the Government of the Virgin Islands, in violation of 14 V.I.C. § 843(4), and one count of inducing a conflict of interest, in violation of 3 V.I.C. §§ 1102, 1103, and 1107. He was sentenced to 151 months’ imprisonment on the first six counts, and two years’ imprisonment, to be served with the first sentence, on the last two counts. He appealed.

            Andrews chief claim revolved around the §1346 charges, which were the subject of last year's Supreme Court decision on honest services fraud in United States v. Skilling, 130 S.Ct. ____ (2010). Because Skilling was decided after the trial, and there was thus no opportunity to object to the jury instructions, the standard of review of the jury instructions was plain error. Under plain error review, the Court said, it “may correct an error not raised at trial only if the appellant demonstrates that: (1) there was an error; (2) the error is clear or obvious; and (3) “the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings.’” (internal citation omitted). Slip op. at 11. Skilling met the standard for retroactive application: a case where a new rule constituted a clear break with the past. The Court concluded that even though the jury instructions were wrong under Skilling, they did not affect Andrews’ substantial rights, and did require reversal of his conviction.

            Skilling requires that juries considering honest services fraud be told the statute encompasses only fraudulent schemes to deprive another of honest services through bribes or kickbacks. It is legal error to not tell a jury of that limitation. 

            The Court’s first step in its plain error analysis was to determine whether the references to honest services fraud in the indictment and the jury instructions constituted Skilling error. The Government contended at trial that in addition to alleging bribes, Andrews schemed to defraud the VI of the honest services of Harris. However, before the jury was charged, all references to honest services in the wire fraud counts were removed, and that the jury charge reflected that change. Nevertheless, the court’s charge did contain references honest services fraud. A later narrowing instruction from the trial court did not cure the problem. Thus, the first prong of the plain error test was met. The Court then also concluded the second prong of the test was met: the error became apparent when the Supreme Court decided Skilling.        
            Andrews, however, could not surmount the third and last prong of the plain error test: he could not show that the error affected his substantial rights: Andrews could not demonstrate that the error was harmless, i.e., he could not show a reasonable probability that the error affected the trial. Even without the error, the Court concluded, Andrews would have been convicted of wire fraud: there was a clear alternative theory of guilt, supported by overwhelming evidence, that kept Andrews from showing that the conviction was the result of harmless error. In this case the Court found overwhelming evidence of bribes and falsehoods. The Court also noted that the jury was told to consider only the scheme to defraud that was charged in the indictment, which did not include honest services fraud. The Court concluded there was no reasonable probability that passing references to honest services fraud in the instructions, illegally or unfairly,  affected the jury’s verdict. Also, if the jury had been instructed that it could only find Andrews guilty of honest services fraud if it found the fraud bribery or kickbacks, it would have found him guilty of the wire fraud anyway.

            The Court also found the evidence sufficient to support the convictions. In particular, it swatted away Andrews' claim that he had no idea that his false statements would be transmitted by electronic means: that was something he could have reasonably and easily anticipated. 

            Andrews' one victory was one he did not seek: the government on its own raised the illegality of Andrews' sentence due to the lower court’s not imposing a separate sentence on each count. Even though Andrews waived this issue, “extraordinary circumstances” required consideration of the issue and remand for a new sentence, with instructions to impose a sentence on each count, because the 151 month sentence exceeded the maximum sentence for one of the counts. The error, even though never raised by Andrews, (he might have figured there was no point) affected his substantial rights and required correction. The matter was remanded for resentencing.                                                                                                                                                        

Friday, July 06, 2012

Definition of “Sexual Contact” under U.S.S.G. § 2G1.3(b)(4)(A) Does Not Require Contact with Minor Victim

In United States v. Pawlowski, No. 10–4105 (3d Cir., June 19, 2012), the defendant challenged his conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b). The defendant initiated an online communication on the social networking site "My Yearbook" with an individual portrayed as a 15 year old girl named "Ashley". Ashley was in fact a detective from the Allegheny County District Attorney's Office. During their online correspondence, the defendant inquired several times about Ashley's age. Initially, Ashley listed her age as 98, then later responded that she was 15 years old. Ashley also provided pictures of herself, which were in fact pictures of a female police officer during her teenage years. The court ruled that this evidence was sufficient to prove that the defendant believed he was communicating with a minor, as required under § 2422(b).

The Third Circuit also found that the sentencing court properly applied the two-level enhancement under U.S.S.G. § 2G1.3(b)(4)(A) for “sexual contact”. The court reviewed the definitions for the terms “sexual contact” and “sexual act,” as used under the statute and the guideline, to conclude that “sexual contact” does not require contact with the minor victim. Therefore, the defendant’s act of masturbation in front of his webcam during an online conversation with Ashley constituted “sexual contact” under § 2G1.3(b)(4)(A).

The court also rejected the defendant’s challenge to the government’s opening statement, in which the prosecutor informed the jury that defense counsel would “certainly present evidence and explain things.” The defendant argued that this statement improperly referenced his constitutionally-protected decision not to testify. The court, however, ruled that this “brief and isolated” remark did not constitute plain error because any harm inflicted by the remark was diffused by defense counsel’s response during his opening statement, as well as the trial court’s repeated clarification that the government bore the burden of proof.

Mixed Motives Jury Instruction Proper in Prosecution under Fair Housing Act, 42 U.S.C. § 3631

In United States v. Piekarsky, Nos. 11–1567, 11–1568 (3d Cir., June 18, 2012), two of several defendants charged in the brutal beating death of a Latino American, and subsequent cover up, in Shenandoah, Schuylkill County, Pennsylvania, appealed their convictions under the federal Fair Housing Act, 42 U.S.C. § 3631. The statute criminalizes conduct which interferes with, intimidates or injures an individual because of his race or ethnicity and his decision to reside in a certain area. The defendants claimed that the trial court erred by giving the jury a “mixed motives” instruction. The defendants maintained that such an instruction was legally insufficient to support a conviction under § 3631 because it allowed the jury to find them guilty based upon evidence of other motives in addition to racial animus. The Third Circuit cited other circuits to conclude that the statute’s use of the term “because” did not “connote exclusivity or predominance.” Therefore, the defendants’ possession of motives other than racial or ethnic intimidation would not render their conduct any less a violation under the Act. Consequently, the court ruled that the jury instruction for § 3631 was legally sufficient because it allowed the jury to find that the defendants possessed animus toward a protected class, and they had the specific intent to intimidate a member of that protected class from exercising his housing rights under the Fair Housing Act.

The Third Circuit also rejected the defendants’ claims that the evidence was insufficient to support their convictions. The court found that the evidence presented, which showed that the defendants hurled racial epithets immediately prior to, during and subsequent to the beating, evinced their intent to send the message that certain individuals were not welcome to reside in Shenandoah because of their race or ethnicity.

The Third Circuit also rejected the defendants’ argument that their federal prosecution violated the Double Jeopardy Clause, finding that the doctrine of Dual Sovereignty foreclosed the argument. Citing its ruling in United States v. Berry, 164 F.3d 844 (3d Cir. 1999), the court held that the “Bartkus exception” to the Dual Sovereignty rule did not apply because the defendants failed to show that state authorities acted as puppets in conducting a sham prosecution in anticipation of the federal proceedings.

Wednesday, June 27, 2012

Double Jeopardy and Due Process did not preclude trial on a bifurcated 922(g) count after the district court declared a mistrial on a 924(c) count.

The defendant in United States v. Figueroa, No. 11-2597 was charged with two counts of drug distribution, carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Figueroa admitted selling narcotics twice to an undercover officer. During the second sale, the officer testified that he saw a few inches of what he thought was a gun in Figueroa’s waistband. He could not be sure what the object was because it was dark outside. After that same sale, the police pulled over Figueroa’s girlfriend’s car, in which he was the passenger. During the stop, the police recovered a handgun from the glove compartment.  Both Figueroa and his girlfriend denied that they owned or even knew about the gun. At trial, the government prosecuted the 924(c) charge under the theory that Figueroa had a gun in his waistband during the controlled buy. They planned to prosecute the felon-in-possession charge in a bifurcated portion of the trial, adding the theory that Figueroa constructively possessed the gun in the glove compartment.

The jury convicted on the drug counts but was deadlocked on the 924(c) count. The district court declared a mistrial on that count, and originally thought a mistrial on the felon-in-possession count would also be proper. The jurors were dismissed. But the government argued that a finding of manifest necessity could not be made on the felon-in-possession count because the jury was never presented with that charge and its elements. The district judge had a court employee hold the jurors and researched the issue. The Court brought the jurors back for the bifurcated portion of the trial on the 922(g) charge, and the jury convicted. Figueroa appealed, contending that the district court’s decision to bring back the jury and hold the bifurcated felon-in-possession portion of the trial violated his Double Jeopardy and Due Process rights under the Fifth Amendment.

On the Due Process issue, the Third Circuit framed the inquiry as whether the jurors were susceptible to outside influences when they were originally told they were dismissed. If the jurors are “undispersed,” under the control of the court, and cannot discuss the case with others, they can be recalled. The Third Circuit explained that the district court judge did not allow the jurors to disperse and they were not exposed to any outside influences. Accordingly, the district court did not err when it recalled the jury to hear evidence and argument and deliberate on the felon-in-possession count.

Turning to Figueroa’s Double Jeopardy rights, the Third Circuit explained that a reprosecution is only barred by the Double Jeopardy Clause where a mistrial is required by manifest necessity. In this case, there was no manifest necessity for a mistrial on the felon-in-possession count because the jury had not even deliberated on that charge. Therefore, none of the Fifth Amendment’s Double Jeopardy protections were implicated in Figueroa’s case. The Third Circuit explained that, if anything, the district court’s actions were probably required to avoid prejudice to the government.

Tuesday, June 26, 2012

S.Ct.: No Mandatory LWOP for Juveniles

       In Miller v. Alabama, and Jackson v. Hobbs, Nos. 10-9646 and 10-9647 (June 25, 2012), the Court held that the Eighth  Amendmentforbids a sentencing schemes that mandates life in prison without possibility of parole sentences for juveniles; “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

Opinion (5-4) by: Kagan, with Kennedy, Ginsburg, Breyer and Sotomayor; concurrence by Breyer and Sotomayor; dissents by (a) Roberts, Scalia, Thomas & Alito; (b) Scalia and Thomas; (c) Alito and Scalia.

       “If ‘death is different,’ children are different too.” In this pair of  cases, one on direct appeal from Alabama and one on appeal from post-conviction review from Arkansas, the Supreme Court holds that mandatory sentences of life without parole (“LWOP”) for juveniles violate the Eighth Amendment’s prohibition on disproportionate sentences.  The majority stops short of a categorical ban on juvenile LWOP sentences, but requires individualized sentencing for juveniles in a manner similar to, and expressly drawn from, capital case jurisprudence.   The two  petitioners, Miller and Jackson, were both 14 at the time of the crimes.  They were both tried as adults and were both sentenced according to mandatory LWOP statutes.  

       In its Eighth Amendment analysis, the majority relies upon Roper v. Simmons, 543 U.S. 551 (2005) (holding the juvenile death penalty unconstitutional), and Graham v. Florida, 130 S.Ct. 2011 (2010) (holding juvenile LWOP sentences for non-homicide offenses unconstitutional), to establish that juveniles, in comparison to adults, have lessened culpability and greater capacity for change, and are therefore less deserving of the most severe punishment.  Factors showing that “children are constitutionally different from adults for purposes of sentencing” include “lack of maturity,” “underdeveloped sense of responsibility,” “more vulnerable . . . to negative influences and outside pressures,” “limited control over their environment,” and a less “well-formed” character.  The majority, as in Roper and Graham, cites to science and social science research, including the development of the adolescent brain.  Quoting Graham, “Life without parole forswears altogether the restorative ideal. It reflects an irrevocable judgment about [an offender’s] value and place in society, at odds with a child’s capacity for change.” Because mandatory LWOP statutes prevent the sentencer from considering a defendant’s youth or other factors related to youth, “these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”

       The majority relies heavily on death penalty jurisprudence, relying upon Woodson v. North Carolina, 428 U.S. 280 (1976) (mandatory death penalty statute is unconstitutional; Eighth Amendment requires individualized sentencing); Lockett v. Ohio, 438 U.S. 586 (1978) (Eighth and Fourteenth Amendments require that a sentencer in a capital case not be precluded from considering and giving effect to mitigating factors); Johnson v. Texas, 509 U.S. 350 (1993) (the sentencer in a capital case must be allowed to consider the mitigating qualities of youth).  The majority adopts from capital cases the requirement that the sentencer consider characteristics of the offender and the circumstances of the particular offense.

       For this case specifically, the majority states that the sentencer should have considered: Jackson was not the triggerman; his age affected his understanding of risk and willingness to walk away; his “immersion in violence” includes that his mother and grandmother both shot other individuals.  Miller, whose offense was a “vicious murder,” was high on drugs and alcohol at the time of the crime; his “pathological background” included physical abuse, neglect, a substance-addicted mother, foster care, and four suicide attempts, one at kindergarten age.      

       The majority addresses one of the primary concerns of the dissenters – the lack of a legislative consensus or a rarity in sentencing to show that “evolving standards” have moved beyond juvenile LWOP sentences.  Because over 2500 people are serving juvenile LWOP sentences nationwide, and 28 states allow mandatory juvenile LWOP sentences, it would be difficult to show that a national consensus has evolved against the practice, or that the practice is “unusual.”  Instead, the majority explains that those numbers are more relevant in categorical bar cases, such as Roper, Atkins and Graham.  The Eighth Amendment cases about the mitigation requirement – i.e., non-categorical cases – are not based in numerical evidence of a national consensus.  The majority also notes that the high numbers result directly from the mandatory nature of the statutes.  Finally, the majority argues, somewhat less persuasively, that the evidence of legislative intent is weak, because juvenile transfer statutes (trying kids as adults) are separate from the adult sentencing statutes allowing for LWOP.  
Although the majority states, “We think appropriate occasions for sentencing juveniles to this harshest possible penalty with be uncommon,” the first paragraph of the opinion indicates that a mandatory sentence of life with parole would be constitutionally permissible.  

       Breyer concurs to state that in felony-murder cases where the juvenile defendant did not “kill or intend to kill,” there should be a categorical ban on LWOP.

       Roberts, in dissent, argues that juvenile LWOP is not “unusual” in an evolving standards of decency analysis, because of the 2500  people serving such sentences, and because the direction of change has been toward harsher sentencing (for both juveniles and for LWOP in general).  He disagrees that Roper and Graham can be extended to this outcome, and labels the majority a “science and policy” decision.

       Thomas, in dissent, argues that an original reading of the cruel and unusual punishment clause does not include any categorical prohibitions or a requirement of individualized sentencing, noting that the post-Furman individualized sentencing line of capital cases is wrongly decided.

       Alito, in dissent, argues against the “evolving standards of decency” analysis, saying it is not tied to any objective indicia of society’s standards, and reiterates his quibbles with the outcomes in Kennedy v. Louisiana and Graham.

Maria Pulzetti, EDPA, Capital Habeas Unit

Third Circuit Finds Defendant Was Not Seized Where He Briefly Paused and Raised Hands Before Fleeing

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