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. 


Third Circuit grants habeas relief because defense counsel was ineffective in failing to object to judge threatening perjury witness changed his testimony

  In Rogers v. Superintendent Greene SCI , --- F.4th ----, 2023 WL 5763346 (3d Cir. Sept. 7, 2023), available here , the Third Circuit rever...