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.

Funds Held In Individual Retirement Accounts and Joint Bank Accounts Are Available Funds Under Under the Criminal Justice Act (CJA).

            The Third Circuit held in United States v. Konrad, -- F. 3d --, 2013 WL 5289087 (3d Cir. September 20, 2013) that individual retirement funds (IRAs) and jointly held bank accounts are considered available funds under the Criminal Justice Act, 18 U.S.C.  § 3006A(a).  

            In this case, Joseph Konrad was appointed a federal public defender to represent him against charges of making false statements to the Federal Aviation Administration.  Disparities in CJA 23 Financial Affidavit and in his disclosure during his presentencing report interview revealed that Konrad did not disclose the value of his home ($258,000), underreported the value of his retirement accounts by more than $20,000, and underreported his household monthly income by $4,300.  Additionally, Mr. Konrad and his wife had several large joint accounts. The district court found he had sufficient funds to pay for an attorney and with full disclosure would not have been entitled to the services of the federal public defender.  In reaching this decision the court ruled that the money in his individual retirement accounts could be considered in determining his ability to pay for legal representation.  The Third Circuit affirmed.  The circuit court noted that liquidity is a major factor in determining an individual’s ability to pay for an attorney.  Although funds withdrawn early from an IRA are subject to a penalty, they can still be liquidated.  Similarly, funds are considered available when a person has control over them and authority to use them.  Mr. Konrad had access to funds from the joint accounts with his wife, and discretion to use them.  Accounts where both holders have authority to use funds are different from money held in a spouse’s individual account.  Here Mr. Konrad had authority to use the funds in the account. Therefore, these funds were available for legal expenses.   
             Mr. Konrad was ordered to repay $6,000 for his legal services by the district court.   He argued that he should only have to repay an amount based on the CJA rate of $125 an hour.  The Third Circuit disagreed holding that the CJA rate was under market value for a criminal defense attorney, and since Mr. Konrad did not qualify for a court appointed attorney, he could not take advantage of the subsidized rate.  The district court’s order was affirmed. This holding is consistent with other federal courts.

Tuesday, September 24, 2013

Death of Habeas Petitioner Moots Petition

In William A. Keitel v. Joseph Mazurkiewicz, et al., No. 12-4027 (3d Cir. Aug. 30, 2013), Appellant Ketiel filed a petition for writ of habeas corpus under 28 U.S.C. 2254 in the Western District of Pennsylvania, after he had been found guilty of various crimes in the Pennsylvania Court of Common Pleas in 1998, and both his direct appeal and PCRA action in the Pennsylvania courts had been unsuccessful. The District Court denied his petition, and Keitel appealed. Shortly before the appeal was scheduled to be heard, the parties notified the Court of Appeals that Keitel had died. Appellees sought to dismiss the appeal as moot; Keitel's family wanted to continue the appeal to "clear his name."

The Court of Appeals vacated the District Court's order denying the petition, remanding with instructions to dismiss as moot. The Court held that Keitel, having died, was no longer "in custody", thus rendering his habeas petition moot.

Monday, September 16, 2013

Sentencing courts are not limited to charged conduct, but may consider defendant's actual conduct, in determining whether defendant violated his supervised release

In United States v. Khalil Carter, Nos. 12-3754 & 12-3755 (3d Cir. Sept. 13, 2013), the Third Circuit addressed the question of what evidence a sentencing court may consider in the revocation context for determining the grade of a charged violation. Appellant Carter was charged with two violations of supervised release. One, a new state conviction for access device fraud, was indisputably a Grade B violation. The other, new state convictions for misdemeanor endangering the welfare of a child and corruption of a minor, was also a B violation unless the district court found that the offenses constituted crimes of violence as forcible sex offenses, which would result in a Grade A violation of supervised release. A Grade B violation resulted in a sentencing range of 6 to 12 months, while a Grade A violation produced a sentencing range of 27 to 33 months imprisonment.

In making its determination that Carter's misdemeanor charges constituted crimes of violence, the district examined evidence including the victim's statement, Carter's guilty plea transcript, a toxicology report on the victim, testimony by the victim's mother, and an oral statement by Carter. The court credited the mother's testimony, which indicated that Carter had taken the 13 year old victim out to dinner, provided her with alcohol, made inappropriate comments, and touched her genitals while she pretended to be asleep. On this evidence, the district court concluded that Carter's conduct amounted to a forcible sexual offense and, under the Guidelines, a "crime of violence" and a Grade A violation of supervised release.

On appeal, Carter contested the determination that his misdemeanor offenses constituted a Grade A violation of supervised release because he had not been charged with a forcible sex offense. The Third Circuit rejected this argument, clarifying that a district court is not limited to the actual charges or convictions in determining the grade of a violation in the revocation context, but may consider the defendant's actual conduct. In fact, a revocation can proceed without charges even being filed. Accordingly, the sentencing court was permitted to rely on the facts presented at the revocation hearing in analyzing the nature of Carter's violation, and was not limited by the charges filed or the offenses of conviction.

However, in determining that Carter committed a forcible sex offense under the Guidelines, the district court failed to name the forcible sex offense that it believed Carter had committed. It was not enough for the court to say that Carter's actions were violent or forcible without pointing to a specific local, state or federal offense containing those same elements. Nevertheless, the Third Circuit found any error harmless because the sentencing court specified that a sentence of 37 months imprisonment was the appropriate sentence whether Carter committed a Grade A or B violation and listed a number of factors supporting that conclusion. Accordingly, the Third Circuit affirmed the sentence based on the district court's alternative sentence calculation and explanation.

Chief Judge McKee filed a concurring opinion, emphasizing that "[w]hen the basis of a supervised release violation is the commission of a new crime, the supervising court should not impose a sentence to punish the defendant for that new offense. Punishment is best left to the judge who is assigned to handle the new criminal case. The judge whose supervised release is violated should instead 'sanction the violator for failing to abide by the conditions of the court-ordered supervision,' ... and impose a sentence that will 'facilitate the integration of offenders back into the community.'"

Third Circuit abandons judicial use immunity for defense witnesses and finds that government's refusal to immunize co-defendant did not violate defendant's due process rights

In United States v. Quinn, No. 11-1733 (Aug. 14, 2013) (en banc), the Third Circuit joined every other federal Court of Appeals in rejecting the use of judicial grants of immunity for defense witnesses. Defendant Quinn was convicted after a jury trial for aiding and abetting co-defendant Shawn Johnson in an armed bank robbery. Quinn's defense was that he did not know Johnson intended to rob a bank teller at gunpoint. Quinn believed Johnson would testify on his behalf at trial, but Johnson, who was awaiting sentencing on the robbery charges, invoked his Fifth Amendment privilege and refused to testify. The district court refused to immunize Johnson and Quinn appealed.

On appeal, Quinn argued that the district court erred in refusing to immunize Johnson and that the government engaged in prosecutorial misconduct by postponing Johnson's sentencing until after Quinn's trial in order to induce Johnson not to testify. The Third Circuit has recognized two situations where a criminal defendant may be entitled to have a defense witness receive immunity for his testimony: (1) when the government acts "with the deliberate intention of distorting the judicial fact-finding process," in which case the charges are dismissed unless the government chooses to immunize the witness at a new trial, United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), or (2) where the testimonial evidence is "clearly exculpatory and essential to the defense case and ... the government has no strong interest in withholding use immunity," in which case the district court was permitted to grant judicial use immunity to allow the testimony. Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). The Court noted that it was the only Court of Appeals to permit the trial court to immunize a defense witness and held that it was overturning the portion of Smith that permitted judicial grants of immunity. In so holding, the Court found that the decision to immunize a witness was a core prosecutorial function and that continuing to authorize judicial use immunity impinged on the separation of powers between the Executive and Judicial Branches. Although the Court abandoned the judicial use immunity remedy created in Smith, it retained Smith's five-part test for determining whether the government's refusal to immunize a defense witness denied a defendant due process.

Applying both Herman's "deliberate distortion" prosecutorial misconduct test and Smith's "clearly exculpatory and essential testimony" test to Quinn's appeal, the Court found that the government engaged in no wrongdoing. Under the "deliberate distortion" test, Quinn provided no evidence that Johnson intended to testify on his behalf, but was dissuaded from that testimony by the government's motion to continue sentencing. In fact, Johnson took no position on the delay of his sentencing and informed that trial court that he would invoke his Fifth Amendment privilege if called to testify. Quinn fared no better under the Smith factors. While Smith (1) sought immunity in the district court and (2) Johnson was available to testify, he was unable to establish the remaining three factors, namely, that: (3) the proffered testimony was clearly exculpatory, (4) the testimony was essential, and (5) there was no strong governmental interests which countervailed against the grant of immunity. Here, Quinn offered no proof that Johnson would offer clearly exculpatory evidence. Accordingly, the Third Circuit held that Quinn failed to show a due process violation requiring reversal and affirmed Quinn's conviction.

Thursday, September 05, 2013

Bad cop who is convicted of civil rights violation “distributed” drugs when he planted drugs on those he arrested and thus court did not err in applying the drug trafficking guideline.

United States v. Figueroa, No. 12-3575 (September 3, 2013). Defendant Figueroa was a Camden police officer who, along with other officers, planted drugs on and stole money from people he arrested. After trial, he was convicted of civil rights violations under 18 USC §§ 241 & 242 and he was sentenced to 10 years. Third Circuit affirmed both conviction and sentence.

District court did not err in using the drug trafficking guideline to calculate the range. USSG § 2H1.1 applies to civil rights violations. Under § 2H1.1(a), the base offense level is the highest of certain options including "the offense level from the offense guideline applicable to the underlying offense." Here, defendant’s actions of planting drugs on individuals fit the meaning of "distribute" under 21 U.S.C. § 841(a) – transfer of a controlled substance from one person or place to another (statute carves out exception for cops lawfully engaged in law enforcement – but that exception doesn’t apply here). Because defendant committed the distribution of drugs in committing the civil rights violations, USSG § 2D1.1 applied. Also, the ten-year sentence, which was within the final guideline range, was substantively reasonable.

Third Circuit also affirmed a series of evidentiary rulings made by the district court: (1) Co-defendant’s out of court statement criticizing the way defendant wrote police reports was admissible as a co-conspirator statement in furtherance of conspiracy because co-defendant was commenting on defendant’s inability to write police reports in a way that would keep them safe from trouble. (2) Police reports offered by defendant were properly excluded as cumulative under FRE 403 because their proffered probative value, that they were false, had already been admitted by the witness. (3) Police officer’s testimony that the constitution required him to get consent forms signed prior to a search did not constitute improper expert testimony from a lay fact witness on an issue of constitutional law – there was no contemporaneous objection from defense and the officer was just testifying about police procedure.

District court’s jury instruction on the specific intent requirement of 18 USC § 242 was proper. Elements are: (1) defendant "acted under the color of law;" (2) deprived a person of civil rights; and (3) "acted knowingly, intentionally, and willfully." District court said that requisite intent is met if defendant intended to deprive someone of a legally recognized federal civil right OR acted "with reckless disregard of a constitutional requirement which has been made specific and definite." District court did not act improperly in rejecting the defense’s requested instruction that the government proves "that the defendant’s aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution." District court’s instruction was a proper statement of the law.

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...