Monday, December 02, 2013

Supervised Offender’s Waiver of Legal Representation at Revocation Hearing Sufficient under Totality of the Circumstances Standard

In United States v. Manuel, No. 12-4258 (3d Cir., Oct. 17, 2013), Defendant pled guilty to conspiracy as well as the substantive offense of mail fraud, involving a scheme to defraud investors in Defendant’s non-existent financial assistance programs. He was sentenced to 71-months imprisonment and three years supervised release. While on supervised release, Defendant committed several infractions, including illegal drug use and unauthorized employment. During his second supervision revocation hearing, Defendant petitioned the court to allow him to represent himself. The court conducted a colloquy with Defendant and ultimately granted his request. The court also granted Defendant several continuances to allow him to obtain additional documents and witnesses. Defendant ultimately presented witness testimony from his substance abuse therapist and employees from a halfway house to which he had been sanctioned. Nonetheless, the court revoked his supervised release term and sentenced him to two, consecutive 16-month jail terms. Defendant appealed this revocation sentence, arguing that the court’s colloquy was insufficient under United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), and therefore his waiver of legal representation was ineffective.

The Third Circuit disagreed, interpreting Peppers to apply only to a defendant’s right to self-representation in a criminal prosecution, not a supervision revocation hearing. The court recognized that the case cited by Defendant, Morrissey v. Brewer, 408 U.S. 471 (1972), specifically states that the "full panoply of rights" afforded a defendant in a criminal prosecution do not apply to a supervision revocation proceeding. Therefore, as the Supreme Court ruled in Gagnon v. Scarpelli, 411 U.S. 778 (1973), there is not constitutional right to legal representation at a supervision revocation hearing. Instead, Federal Rule of Criminal Procedure 32.1 governs due process in the context of a supervision revocation hearing. Consequently, the court was not required to perform the 14-point inquiry enunciated in Peppers. The Third Circuit concluded that a defendant has been afforded due process in accordance with Rule 32.1 if his waiver of rights is knowing and voluntary under a totality of the circumstances standard. The Third Circuit interpreted this standard to require only that the court inform the defendant of the charges against him, the evidence supporting those charges, the penalties he faces, the rights he possesses and the consequences of relinquishing those rights. As the totality of the circumstances indicated that Defendant had knowingly and voluntarily waived legal representation, the district court did not err.

Sentencing Court May Require Defendant to Deliver Sworn Allocution

In United States v. Ward, No. 12-1511 (3d Cir., Oct. 15, 2013), Defendant was a professor emeritus at the University of Pennsylvania’s Wharton School of Business. In 2006, he allegedly traveled to Brazil in order to engage in sexual relations with two minors. Upon his return to Dulles International Airport, Defendant was found in possession of child pornography and charged in the Eastern District of Virginia. A search of his office at the University of Pennsylvania resulted in the discovery of more child pornography involving his Brazilian victims, as well as email communications with the children. Defendant also attempted to acquire a visa for one of his Brazilian minor victims by providing false information during the visa application process. Defendant subsequently was indicted in the Eastern District of Pennsylvania with shipping child pornography and lying to a federal official. This indictment was superseded to add two counts of sexual exploitation of minors under 18 U.S.C. § 2251(a). Defendant pled guilty to all charges. He received a sentence of 15 years imprisonment in the Eastern District of Virginia, and 300 months imprisonment, lifetime supervised release, and a $100,000 fine in the Eastern District of Pennsylvania. The fine was imposed instead of restitution apparently because the Brazilian victim who was still a minor could not be located. Defendant appealed his sentence from the Eastern District of Pennsylvania on several grounds, including the court’s imposition of a $100,000 fine instead of restitution, and the court’s failure to impose separate sentences for the counts in the superseding indictment. During the pendency of this appeal, Defendant continued to contact his Brazilian victims, one of whom had fathered children. Defendant attempted to contact those children as well. Defendant also committed several prison infractions.

At his resentencing in the Eastern District of Pennsylvania, the court allowed Defendant to make a statement, but insisted that Defendant do so under oath, despite defense counsel’s objection. Defendant expressed remorse for his actions and requested a shorter sentence, in light of his age and recent diagnosis of leukemia. The court ultimately resentenced Defendant to the same 300 months in prison, but increased the fine from $100,000 to $250,000, reasoning that Defendant’s continued unlawful behavior warranted the increase. Defendant raised several challenges in this second appeal, including what he believed to be the court’s denial of his right to deliver an unsworn allocution at sentencing. Defendant argued that Federal Rule of Criminal Procedure 32 afforded criminal defendants this right. The Third Circuit disagreed, interpreting Rule 32 to require only that the sentencing court personally address the defendant and also allow him to speak or provide mitigating evidence. The court concluded that the sentencing court’s decision to place Defendant under oath did not prohibit him from presenting information in accordance with Rule 32. The Third Circuit ultimately ruled that the decision to require a defendant to deliver a sworn allocution is within the district court’s discretion. The Third Circuit rejected Defendant’s remaining arguments on appeal and affirmed the second sentence.

Thursday, November 07, 2013

After Descamps v. United States, Circuit Holds, Modified Categorical Approach Unaltered and Almendarez-Torres Undead

In United States v.Conrad Clinton Blair, No. 12-4427, the Court rejects an expansive reading of the Supreme Court’s recent decision in Descamps v. United States, 133 S. Ct. 2276 (2013). Instead, the Circuit holds, a district court considering whether predicate offenses were committed on different occasions may rely on information in the charging and plea documents regardless of whether that information was integral to an element necessarily found in support of the prior convictions.

Conrad Blair pled guilty in 1991 to four counts of first-degree felony robbery in violation of Pennsylvania law. His conviction on each count was entered on the same day. In his subsequent federal prosecution, the issue was whether this record triggered a mandatory minimum 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). That sentence is required when the defendant has “three previous convictions … for a … violent felony … committed on occasions different from one another.”

Blair first contended that the plea documents from his 1991 case left open the possibility that none of the counts could be deemed an ACCA predicate because he could have been convicted under 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(iii), which provides that a person is guilty of robbery if, in the course of committing a theft, he “commits or threatens to commit any felony of the first or second degree…” Since not all felonies of the first or second degree involve violence, this variety of Pennsylvania robbery would not be a “violent felony” within the meaning of ACCA. The Court rejected this argument based on a line at the bottom of each charging document labeled “felony committed or threatened,” on which appeared in Blair’s case the words “aggravated assault.” Reading “each charging document and guilty plea as a whole,” the Court concluded that these materials made it “clear” that Blair admitted to a robbery whose elements constituted a violent felony.

The Court also rejected Blair’s argument that the charging and plea documents could not be relied upon to conclude that each of the 1991 robbery counts was for an offense committed on a different occasion. Although the charging documents stated that the alleged robberies had been committed on three different dates, Blair submitted that this specification could not be consulted for purposes of the ACCA enhancement because the dates were not integral to any particular element of the offense. Accordingly, it could not be said that the commission of any robbery on the specified date was necessarily found by the court in adjudging Blair guilty as charged. See Descamps, 133 S. Ct. at 2288 (“[T]he only facts the court can be sure [were admitted or found by the jury] are those constituting elements of the offense — as distinct from amplifying but legally extraneous circumstances.”). That being so, Blair argued, the dates were not properly consulted in application of the “modified categorical approach” expounded in Descamps.

The Third Circuit rejected this argument under Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held that “the fact of a prior conviction” is exempt from the usual rule that any fact essential to greater punishment must be charged in the indictment and found by the jury on proof beyond a reasonable doubt. Almendarez-Torres, the Court instructed, “has not been narrowed and remains the law.…  Descamps and [Alleyne v. United States, 133 S. Ct. 2151 (2013)] do nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions.”  Stating that “the date of an offense is integral to the fact of a prior conviction,” the Court held that the question of whether predicates were committed on “different occasions” is subject to determination by a judge based on factual matter in the charging documents.  In Blair’s case, the listing of different dates, victims, and locations for the separate robbery counts was sufficient to support the conclusion that the predicates were committed on different occasions.

Thursday, October 31, 2013

GPS Searches Require a Warrant Based on Probable Cause, and the Good Faith Exception is Inapplicable in the Absence of “Immutable Authority or Information.”

The Supreme Court held in United States v. Jones, 132 S. Ct. 945 (2012), that attaching a GPS device to a suspect’s vehicle constitutes a search under the Fourth Amendment, because it is a trespass/invasion of personal property. In United States v. Katzin, No. 12-2548, the Third Circuit answered what the Supreme Court left open in Jones: that law enforcement must obtain a warrant based on probable cause before attaching a GPS device to a suspect’s vehicle. The Court had "no hesitation in holding that the police must obtain a warrant prior to attaching a GPS device on a vehicle," finding that "a physical entry upon and occupation of an individual’s house or effects for purposes of ongoing GPS tracking" is "highly disconcerting." Notably, the Court suggested that the duration of the GPS tracking likely does not matter.

The Court rejected the government’s contention that warrantless GPS tracking is a "special needs case," or a case where the suspect has a diminished expectation of privacy, such as a probation search. The government also argued that warrantless GPS searches are permissible on a finding of reasonable suspicion. Finally, it argued that if the officers have probable cause, warrantless GPS searches should be permitted under the Fourth Amendment’s automobile exception. The Third Circuit rejected both of these arguments, explaining that a GPS search is an ongoing and much broader endeavor than a Terry stop or an automobile search.

Equally as important: the Third Circuit’s rejection of the government’s invocation of the Fourth Amendment’s good faith exception to the exclusionary rule. First, the agents did not act in good faith reliance on binding authority under Davis v. United States, 131 S. Ct. 2419 (2011). There was no binding Supreme Court or Third Circuit precedent when the agents attached the GPS device to Katzin’s van, and there was only a 3-1 circuit split in the government’s favor nationwide. The Third Circuit made clear that good faith reliance on binding precedent applies only when police reasonably rely on "seemingly immutable authority or information."

The Court also considered whether the exclusionary rule should be applied under the "cost of exclusion vs. benefit of deterrence" analysis. The Court concluded that suppression was required because deterrence was needed and can be achieved. Instead of erring on the side of caution, the agents deliberately bypassed the warrant process and made a "reckless" extrapolation of the law. The Court emphasized that police and prosecutors may not rely on "self derived" rules.

Finally, the Third Circuit rejected the government’s claim that the van’s passengers (Katzin’s brothers) had no standing to object to the vehicle stop. The government wanted the Court to analyze the stop of Katzin, based only on information gleaned through the illegal GPS search, separately from that of his brothers. The government argued that the stop of the brothers was properly based on the probable cause developed through the use of the information obtained during the GPS search. The Third Circuit held that under United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), the vehicle stop must be treated as a single incident implicating the Fourth Amendment rights of all three brothers. All three of the van’s occupants therefore had standing to challenge the stop, and the evidence was properly suppressed by the district court.

Wednesday, October 09, 2013

Absent Federal Interest, Witness Intimidation Charges Cannot Stand/ Use of 42 U.S.C. §2241 to Attack Federal Convictions/ Remedies For Defendants Who Prove That Caselaw Their Actions Are No Longer Unlawful

In United States v. Willie Tyler, No. 12-1275 (3d Cir, October 3, 2013), the Third Circuit applying recent decisions of the United States Supreme Court, remanded a case challenging a 1995 conviction for witness tampering for a determination if the defendant should receive a new trial or be discharged.

Willie Tyler, his brother, David Tyler, and Roberta Bell were implicated in the 1992 murder of a witness against David in an Adams County, PA drug crime trial. The witness, who had made controlled buys from David, was found shot dead on the day she was to testify against him. The brothers and Bell were subsequently tried for murder in state court, with Willie being convicted of witness intimidation, David convicted of murder, and Bell acquitted of all charges. In 1995, the federal government charged her with witness tampering and intimidation, and she was convicted and sentenced to life imprisonment. When Willie was released from prison in 1996, he was similarly charged and convicted.

The witness had been cooperating with a tri-county task force as well as a local police force. At the time of her death she was no longer engaged in undercover operations, but she had been giving state and local authorities information about ongoing illegal drug activities. While the witness knew of David Tyler’s interstate and international drug activities, local authorities had planned to debrief her on her complete knowledge of his activities, and her information might have led to an investigation that involved federal authorities. There was no evidence that she been assisting in any other federal investigation or prosecution.

Willie Tyler (hereinafter “Tyler”) was convicted of witness tampering and intimidation in 1996, and after a direct appeal resulted in a new trial, convicted of witness tampering by murder and by intimidation in violation of 18 U.S.C. §1512. Several challenges, both on direct appeal and collateral attack, followed, none of them disturbing the conviction. In December, 2009, he filed a pro se petition attacking his conviction on the ground that the Supreme Court’s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) rendered his conduct non-criminal. That case held that that certain “official proceeding” provisions of §1512’s witness intimidation subsection, §1512(b)(2)(A) and (B), require that the Government prove a “nexus” between the defendant’s conduct and a particular federal proceeding. While that petition was pending, the Supreme Court decided Fowler v. United States, 131 S. Ct. 2045, 2952 (2011), holding that an “investigation-related communication” provision of §1512’s witness murder subsection, §1512(a)(1)(C), required that there be a reasonable likelihood that a witness’s murder was intended to prevent communication with a federal law enforcement officer or judge. The District Court treated Tyler’s petition as if filed under 42 U.S.C. §2241. It dismissed the petition, and he appealed.

The Court began by discussing the applicability and availability of §2241 in this case. Since the enactment of 42 U.S.C. §2255, there has been little call for §2242 in the federal courts, but it remains available for limited cases where §2255 is inadequate or ineffective. Since the Third Circuit has “held that a § 2255 petition is ‘inadequate’ when a petitioner asserts a claim of ‘actual innocence’ on the theory that ‘he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision’ and our own precedent construing an intervening Supreme Court decision, but is otherwise barred from challenging the legality of the conviction under §2255,” §2241 was available in this case. To support a claim that under the new caselaw he is actually innocent, a defendant must show that in light of all of the evidence, it is more likely than not that no reasonable juror would convict him. The Court then went on to discuss, in light of the superceding Supreme Court cases, whether the evidence supported Tyler’s conviction.

First, the Court considered whether Tyler’s conviction for tampering with a witness could be sustained under §1521’s prohibition on killing a person who prevents the attendance, testimony or other participation of a person in an official proceeding— the “certain “official proceeding” provisions of §1512. Arthur Anderson required that there be a nexus between the defendant’s conduct and a foreseeable particular proceeding. A defendant who lacks knowledge that his actions will affect a foreseeable federal proceeding lacks intent to obstruct it. In this case, there was no evidence that there was a foreseeable federal proceeding. Federal authorities had not even been contacted about Tyler in connection with anything the murdered witness had been doing.  A post-Anderson case, United States v. Shavers, 693 F.3d 363 (3d Cir. 2012), vacated on other grounds  (i.e., sentencing grounds announced in Alleyne v. United States, 133 S. Ct. 2151 (2013)) by Shavers v. United States, 133 S. Ct. 2877 (2013), decided after the district court’s dismissal of Tyler’s §2241 petition, held that the Government was required to “prov[e] that the defendant contemplated a particular ‘official proceeding’ that was foreseeable when he or she engaged in the proscribed conduct.” The Government did not prove that against Tyler, so the Third Circuit directed the district court to provide Tyler with an opportunity to establish his actual innocence of charges he interfered with an official proceeding.

The Court next discussed Tyler’s conviction for tampering with a witness who foreseeably would have communicated with federal law enforcement officers— “investigation-related communication” provision of §1512. The Court did not see such proof in the record before it. The Government had not established a reasonable likelihood that the witness had communicated with or was likely to communicate with Government officers.  All it established was that the witness had communicated with a state law enforcement officer, who in turn was going to further debrief her and then determine whether he would contact federal authorities. The jury that convicted Tyler was told that to convict him it only had to find that the state official might contact federal officials— under Fowler, that was not enough.

Finally, the Court remanded the case with directions to the district court. On remand, the district court is to hold an evidentiary hearing at which Tyler can prove his innocence. If he wants, he can rest on the record, and the Government can present additional evidence to prove Tyler’s guilt under Arthur Anderson and Fowler. If Tyler establishes his innocence on both prongs of §1512, his conviction is to be vacated and he is to be discharged. If the district court concludes that Tyler established his innocence on either the official proceeding provisions or investigation related communication provisions, but not both, in light of the jury’s general verdict, it has to conduct a new trial based only on the legally valid theory still standing against Tyler.

Application of Guidelines Enhancement for Sophisticated Money Laundering Was Not Error Even Though The Defendant’s Acts Were Not Those Listed in Application Note

In United States v. Fish, No. 12-3109 (3d Cir. 10/1/2013), the Third Circuit considered the application of U.S.S.G. §2S1.1(b)(3), that enhances a guidelines score by two points for sophisticated money laundering.

The appellant, Mordchai Fish, was caught up in a scandal involving charities and rabbis in the Syrian-Jewish Community in northern New Jersey.  A government informant approached Fish, a rabbi, with what he claimed were proceeds from a counterfeit handbag operation, and over time, got Fish to launder over $900,000.  Fish took the money the informant gave him and turned it over to Jewish charities and rabbis, and returned it, ostensibly free of noticeable stain, less a 10% commission. The meetings with the informant took place at various locales.  Fish gave the informant several SIM cards for his cell phone. A co-conspirator of Fish told the informant, while the scheme was active, that the money came from the diamond and jewelry business, though it did not.

Fish pled guilty to a single count of money laundering, 18 U.S.C. §1956(h). The government agreed, as part of the plea, that the applicable offense level was 21, but it was free to argue at time of sentencing for a two level enhancement under §2S1.1(b)(3). The District Court accepted the recommendation of the pre-sentence report that the enhancement apply. Fish appealed.

The first issue the Court dealt with was the standard of review of the application of §2S1.1(b)(3). Because there was no dispute over the District Court’s factual determinations, the Court reviewed the application of the enhancement for clear error.

Applying that standard, it found none.  To effect the scheme, Fish used multiple outlets for cash exchanges, multiple couriers and other participants, and multiple locations. He and his conspirator used secrecy to conceal underlying aspects of the scheme. He attempted to evade detection by the use of codes and untraceable electronic devices. Fish used multiple sources of cash to launder the money. Fish argued that none of these acts fit the examples of sophisticated money laundering described in the application note. Those factors though, the Court ruled, were merely illustrative, and not exclusive. Fish’s acts involved several types of transactions and sophisticated attempts to cover them up. The District Court did not clearly err in applying the enhancement.

Tuesday, October 01, 2013

True Threats, the First Amendment and the Internet.

Anthony Elonis was convicted of violating 18 U.S.C. §875(c), which prohibits transmitting in interstate commerce communications containing a threat to injure a person, based on numerous violent Facebook posts.  Elonis challenged his indictment and ultimate conviction for making threats, arguing the statements were not threats, but protected speech under the First Amendment.  The Third Circuit explored the true threats exception to the First Amendment in United States v. Elonis, -- F.3d --, 2013 WL 5273118 (3d Cir. September 19, 2013). 
            First, Elonis challenged the jury instruction which informed jurors that a statement was threatening if a reasonable person would have believed the statements were serious.  He argued that Virginia v. Black, 538 U.S. 343 (2003) required a subjective intent to threaten under the true threat exception to the First Amendment.  Specifically, he argued that Black requires the speaker to both intend to communicate a threat and for the statement to threaten the victim.  The Third Circuit ruled that the holding in Black was not that sweeping, and that limiting the definition of true threats, to only cover threats that a speaker subjectively intended to be threatening, would fail to protect individuals from the fear of violence and the disruption that fear causes, while protecting speech that the average person would find threatening. Accordingly, the appellate court found that true threats exception does not require a subjective intent to threaten, and Black did not overturn the objective test used to access threatening language in most federal courts. 

            Elonis next challenged the sufficiency of his indictment because it did not specifically include the allegedly threatening statements.  The Third Circuit found the indictment sufficient because it notified Elonis of the elements of the offense, the nature of the threat, the subject of the threat and the time of the violation.

            Additionally, Elonis challenged the sufficiency of the evidence for his conviction on two specific counts of the indictment.  One count involved a conditional threat.  The circuit court held that there is no rule that a conditional statement is not a true threat, if the words and the context of the statement show a serious expression of intent to cause harm.  For the second challenge, Elonis argued that the threat suggested past conduct, not a future intent to harm.  Although the statement referenced a past bomb, it also threatened the use of explosives against law enforcement “the next time” they knocked on his door.  A reasonable jury could find that the expressed intent to use explosives in the future constituted a true threat.   

            Finally, the Third Circuit found no error in the district court’s instruction to the jury that if it found the communication traveled over the internet, then it necessarily traveled in interstate commerce. 

Search and Seizure On International Waters.

         The detention and search of a vessel on international waters and the Fourth Amendment implications of that stop and search were addressed by the Third Circuit in United States v. Benoit, -- F.3d --, 2013 WL 5273102 (3d Cir. September 19, 2013).  Appellant Aundel Benoit was master of the Laurel, a ship boarded by the U.S. Coast Guard based on a tip that the she was being used to smuggle drugs. The tip had a complicated history – the Grenadian government tipped the British Virgin Island authorities, who passed the tip to the DEA, who contacted the Coast Guard.  After ordering the vessel to port and then to a boatyard, law enforcement found a substance that tested positive for cocaine, eventually uncovering 250 packages of cocaine weighing 250.9 kilograms.  Benoit was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine while on a vessel subject to U.S. jurisdiction and aiding and abetting possession with intent to distribute.  He raised a number of issues on appeal.     
            First, appellant challenged the search of the vessel on the grounds there was no probable cause to search the ship, challenging the reliability of the tip used to board the Laurel.  The Third Circuit noted that the Coast Guard has extensive authority to board ships and conduct safety and document inspections, and moreover, prevailing case law requires only “reasonable suspicion” for a more intrusive search.  While the Court agreed that the record did not explain the basis for the Grenadian government’s tip, it still found that the Coast Guard was reasonable in relying on the tip.  The appellate court noted that the tip came from authorities that the Coast Guard had a working relationship with in fighting drug trafficking and this partnership gave the tip a certain credibility.  The tip, combined with Benoit’s inconsistent answers to the Coast Guard about the ship’s voyage, gave rise to reasonable suspicion to support the search.

            Next, Benoit challenged the chain of custody of specific evidence obtained from Grenada, under the Mutual Legal Assistance Treaty (MLAT).  However the Court found no precedent for applying the exclusionary rule to the MLAT.  Additionally, the MLAT does not provide any private rights.  Moreover, Benoit offered nothing to support the allegation that Grenadian authorities had done anything improper with the evidence.  

            Third, Benoit challenged the denial of his motion for acquittal. Specifically, he challenged the chain of custody of the evidence.  However, the testimony from a DEA agent about delivering the evidence to a DEA lab and handing it over to an evidence technician, combined with the DEA’s forensic chemist’s testimony that when she received the evidence there were no signs of tampering, was sufficient to establish proper chain of custody.  He also argued the government failed to introduce the cocaine into evidence at trial.  However, the testimony of the chemist about testing the substance and finding it was cocaine made introduction of the cocaine itself unnecessary. Then, Benoit further argued that the government did not show that he knew about the drugs.  The Third Circuit found that there was sufficient circumstantial evidence, including the fact that Benoit was the owner of the Laurel and he had made specific alternations to the ship, to support the jury’s finding that the he knew about the drugs.  Also, given the relatively small size of the boat in comparison to the large amount of drugs found aboard, made it unlikely that the master of the ship did not know about the drugs. 
            Finally, the statement in the government’s summation that the Coast Guard “saved this country from 250 kilograms” of cocaine was harmless and the trial court's curative instruction to jury was a sufficient remedy.  The statement was not grounds for a mistrial. 


Friday, September 27, 2013

A Party May Not Preserve General Suppression Issues For Appeal, But Rather Individual Arguments Must Be Preserved With An Exacting “Degree of Particularity.”

In United States v. Joseph, -- F.3d --, 2013 WL 5273120 (September 19, 2013), the Third Circuit clarified the exactness with which an argument must be preserved for appeal, holding that raising a general issue is not sufficient to preserve an individual appellate argument.  Rather,  individual legal arguments must be preserved with an “exacting” degree of “particularity.”  In reaching this decision, the appellate court differentiated between the concepts of an “issue” and an “argument.”  Specifically, an issue is a broad concept or a question that may be addressed by multiple arguments or theories.  The only arguments that are preserved for appeal are the same arguments made before a district court.  Thus, raising one argument at trial does not preserve every possible argument that is related to an issue.

Akeem Joseph was arrested and charged with using counterfeit money at a Philadelphia club.  He made numerous statements to law enforcement both pre- and post-arrest.   Most damaging, he confessed to Secret Service after being Mirandized, and handed over incriminating text messages.  Prior to trial, Mr. Joseph filed a motion to suppress the counterfeit bills, the text messages and his confession.  To support the motion he raised both a Terry argument, for illegal stop and frisk at the club, and a lack of probable cause argument.   The probable cause argument was based on the arresting officers’ lack of expertise to know if the bills were counterfeit.  The motion was rejected and he was convicted.  

On appeal, Mr. Joseph again raised lack of probable cause for the arrest, but this time his argument was based on mens rea.  Specifically, he argued that the officer did not have sufficient evidence to establish that he had an intent to defraud at the time he possessed the counterfeit bills.  The Third Circuit found this was a completely new argument that was raised for the first time on appeal. The opinion notes that the two different theories presented by Mr. Joseph at trial and at appeal had different legal burdens and relied on different facts.  Therefore these were separate arguments.  When arguments are not based on the same legal rule and the same facts, they are not the same for purposes of preservation.  Because suppression arguments are waived if not raised at trial, Mr. Joseph could not make the mens rea argument on appeal.  The circuit court further explained that probable cause is a general issue; the specific arguments made to support the motion must be preserved individually.  Simply making a suppression motion below does not allow a party to then appeal under all possible suppression arguments.  In this case, the probable cause challenge at trial did not allow appellant to appeal the suppression decision based on a completely different theory

In sum, following this opinion parties are limited  on appeal to the specific arguments they made before the district court.  A specific suppression argument not raised below is deemed waived for purposes of appeal.

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

In United States v. Amos , ---F. 4th---, 2023 WL 8636910 (3d Cir. Dec. 14, 2023), the Third Circuit affirmed a district court's denial o...