Thursday, September 25, 2014

Once A Suspect is Arrested and the Scene Has Been Secured, The Exigent Circumstances Have Passed and The Fourth Amendment Requirement for a Search Warrant Reattaches.

            The existence of exigent circumstances is one of the few exceptions to the Fourth Amendment requirement for a search warrant prior to any search or seizure.  However, once the exigency is no longer present, a warrant is needed to continue the search.  In UnitedStates v. Mallory, (13-2025), the Third Circuit considered what factors demonstrate that the exigency has subsided. 

            In the early hours of the morning, officers were responding to a dispatch call concerning a group of men standing outside a four-story home; the group allegedly included a hooded individual armed with a gun.  The home belonged to Kamaal Mallory’s stepmother.  While outside of the house, Mallory was speaking with a police officer when they noticed a weapon in his waistband.  Appellant ran into the house and shut the door; officers pursued.  Officers cleared the home and the family members were ordered to wait outside under supervision of an officer.  The police then searched the home for Mallory and the weapon.  He was eventually found hiding in a locked bathroom, was placed under arrest, and handcuffed. While escorting appellant outside, officers searched another section of the home and found a revolver.  Mallory filed a motion to suppress the gun, which was granted by the trial court.  The Government appealed. 

            Initially, the appellate court addressed a few procedural issues.  First, Mallory challenged the appellate court’s jurisdiction to review the appeal arguing that the Government had failed to file a timely certification with its notice of appeal, as required by 18 U.S.C. §3731.  He further argued that the corrected certification was filed out of time.  The Third Circuit held that the clock begins ticking on the day an order is entered on the docket, not the day the decision is rendered.  Therefore, the appeal was timely because the error was corrected within the thirty day timeframe provided for in §3731.  Next, the circuit court determined that the proper standard of review for deciding the presence or absence of exigent circumstances is clear error for factual findings, but de novo review for deciding if those facts created a legal exigency justifying the warrantless search.  The Third Circuit further explained that exigent circumstances are reviewed under an objective standard, not based on the subjective intent of the officer. 

When determining if the warrantless search is justified, a court may consider, but is not limited to, the following factors:  (1)  the time that passes between the offense and the search;  (2) the nature of the offense; (3) whether the search occurred prior to or at the same time as the suspect’s apprehension; (4) if the premises/scene is secure; (5) whether there are other individuals in the house/on the scene that are unaccounted for; (6) whether the suspect or anyone present is being aggressive or otherwise threatening to the officers; (7) whether anyone present could reach and use the weapon; and (8) the intrusiveness of the search.  Based on these considerations, the Third Circuit held that in Mallory’s case, the exigency had passed and a warrant was required to continue any search of the house.  Mallory had been arrested and the house was secure; the family members were outside under the watch of other officers; after the initial flight, Mallory did not resist arrest when officers found him hiding in the bathroom; and there was no evidence that the family knew where the gun was or was going to move the weapon.  Therefore the exigency had passed with the intervening arrest and securing of the house, and the officers should have secured a warrant before searching further for the gun.  The Third Circuit upheld the suppression of the weapon. 

Friday, September 19, 2014

Convictions Under Pennsylvania’s Terroristic Threat Statute Are not Crimes of Violence.

Applying the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), the Third Circuit held in United States v. Brown (13-4442) that convictions for making terroristic threats (18 Pa. Cons. Stat. §2706) were not categorically crimes of violence for purposes of the career offender sentence enhancement (U.S.S.G. § 4B1.1).

While incarcerated on a separate state offense, Appellant Gregory Garett Brown mailed a letter threatening both a federal magistrate judge and a federal district court judge.  He pled guilty to mailing threatening communications in violation of 18 U.S.C. §876(c).  The PSR recommended Brown be sentenced as a career offender under §4B1.1(a), which had the effect of doubling his guideline range from 30 to 37 months, up to 77 to 96 months. The PSR identified four prior Pennsylvania state convictions that allegedly triggered the enhancement including: one conviction for aggravated assault, one conviction for retaliating against a judicial officer, and two convictions for making terroristic threats.  Mr. Brown agreed the aggravated assault was a qualifying offense, and the Government conceded that the retaliation offense did not qualify, so the dispute in this matter was whether the convictions for making terrorist threats qualified as predicate offenses under the career offender enhancement guideline. 

The Third Circuit found that the relevant Pennsylvania statue, 18 Pa. Cons. Stat. §2706, is an “overbroad” statute that criminalizes both conduct that qualifies as a crime of violence and conduct that would not be considered a crime of violence under federal law.  Because the state statute applies to such a broad range of conduct, under the precedent set in Descamps, §2706 is not categorically a crime of violence.  Moreover, the modified categorical approach for reviewing predicate offenses is not applicable when a statute provides for multiple versions of an offense but none of those variations is categorically a crime of violence.  Accordingly, the two state convictions under this statute did not qualify as predicate offenses and the enhancement could not be applied to Brown’s sentencing calculation. Therefore the circuit court vacated the sentence and remanded the case.

The holding in this case has the effect of superseding and overturning part of holding in United States v. Mahone, 662 F.3d 651 (3d Cir. 2011).

Rare case where Court, on direct appeal, remands for evidentiary hearing on IAC claim

(Rendell, Fuentes, Greenaway, C.J.s)

In Gov’t of V.I. v Vanterpool, No. 13-4400, 2014 WL 4473960, Vanterpool raised First Amendment challenges (facially vague, as applied, and overbreadth) to his convictions for harassment by telephone and written communication.  His attorney did not raise any First Amendment challenge to a statute that criminalizes “writing in a manner likely to harass or alarm.” The Court determined if the statute was unconstitutional, the District Court would have committed error in applying it, but it would only be reversible under plain error.  The Court had never ruled on whether a constitutional challenge can survive plain error review but found other Circuit cases “persuasive” that when a constitutional question is far from being “clear under current law,” it cannot survive plain error. (However, the Court would not rule out that a constitutional challenge could ever win under plain error review).  Nonetheless, here, the Court took the rare step of remanding the case for an evidentiary hearing on an ineffective assistance of counsel (IAC) claim while on direct appeal.  The Court explained it would remand the case because 28 U.S.C. §2255 would not be available for a defendant who was not in custody and had fully discharged his term of probation.  Thus, inability to seek habeas relief constitutes grounds to review ineffectiveness claims on direct appeal.  The Court examined the statute and concluded it swept up a wide variety of expressive speech and that the letters at issue in the case fell within that category.  Thus, if the attorney had raised a constitutional challenge, the statute likely would have been found unconstitutional, satisfying the prejudice prong of IAC.  The Court remanded for a hearing on the performance prong, to determine if a failure to challenge the statute was ignorance of the law or failure to perform basic research, rather than strategy.

For a Conviction of Distribution of Child Pornography Under 18 U.S.C. §2252, the Government Must Prove Images Were Downloaded or Obtained by Another Person.

The Third Circuit held in United States v. Husmann, (No. 13-2688), that in a prosecution for distribution of child pornography, the Government must establish that the illegal images were actually downloaded or obtained by a third party.   The act of uploading images and making them available on a shared computer file or a peer-to-peer network is insufficient to justify a conviction under 18 U.S.C. §2252(a)(2).  In reaching this decision, the appellate court noted that these types of computer sharing programs allow individuals to place materials in shared folders, but the transfer of materials is not automatic.  Instead, another user must download the materials to view them.  It is the actual downloading of the images that the Government must establish as part of its case. 

A central part of the opinion was the discussion of what definition to apply to the word “distribute” within the statutory context.   Ultimately, the circuit court adopted the “ordinary meaning of the word “distribute” and determined that “distribute” under §2252(a)(2) means to transfer materials to another person.  This decision was consistent with several other circuits, as well as military courts, that have ruled that distribution in violation of §2252 occurs only when another individual downloads the images.  In making this determination, the appellate court rejected the more expansive definition of distribution found in the Sentencing Guideline.  The Third Circuit explained that the meaning of distribution for purposes of an enhancement under U.S.S.G. §2G2.2(b)(3) had “no bearing” on the statutory definition of the term. 

            In this case, Appellant David Husmann was on supervised release for a prior child pornography conviction, when the monitoring software in his computer notified Probation that he had accessed pornographic sites.  A search revealed a large number of saved images, as well as two file sharing programs installed on the computer.  Appellant was charged with distribution and possession; additional counts for receipt of child pornography were dismissed prior to trial.  At trial, the Government was able to show that Husmann uploaded images onto the sharing programs, but could not show when the files were loaded and could not establish that the images were successfully downloaded onto another computer.  Based on the lack of evidence that anyone accessed the files, Husmann filed a Rule 29 motion for a judgment of acquittal.  The district court denied the motion and Husmann was convicted by a jury. However, the Third Circuit vacated the conviction because the Government failed to offer any evidence that the materials were ever downloaded by anyone else, and therefore failed to prove distribution.  Thus the denial of the Rule 29 motion was plain error. 

Tuesday, September 16, 2014

District Court’s failure to rule on a motion constitutes an implicit denial of that motion. Significant pre-arrest delay does not always lead to a speedy trial violation. Delays attributable to co-defendants’ motions can be considered against defendant in speedy trial claims.

United States v. Craig Claxton, Appeal No. 12-3933 (3d Cir. August 18, 2014)
Claxton and others were charged with a conspiracy involving the transportation of cocaine between the Virgin Islands (USVI) and the US mainland.  The first trial in the case started without Claxton because he could not be found.  Two defendants were convicted and a mistrial was declared for the rest.  Two other defendants took an appeal prior to retrial.  While that appeal was pending, Claxton was arrested.  Upon retrial, which now included Claxton, he was convicted.  Post-verdict, the district court granted Claxton’s JOA motion, but failed to rule on Claxton’s R.33 motion for a new trial.  The Third Circuit reversed the grant of JOA and remanded.  Claxton moved for safety-valve relief at sentencing.  Judge denied and sentenced Claxton to 120 months.  This is the second appeal in the case (for Claxton, at least).  Court made several rulings (not all of which are included here) in affirming the conviction and sentence:
1.               No Waiver
The Circuit decided that Claxton had not waived the issues raised in his Rule 33 motion (asking for new trial based on admission of drug evidence in violation of FRE 403 and violation of Brady/Giglio).  Under Rule 29(d), when a judge grants a JOA, the judge is also required conditionally rule on the motion for new trial.  The district court failed to do so in this case, but Claxton did not raise that issue in the first appeal nor did Claxton renew his motion for new trial upon remand.  The Circuit decided that the district court’s failure to rule on the motion constituted an implicit denial.  The Circuit also declined to fault Claxton for the district court’s failure to rule because Claxton had timely filed his Rule 33 motion.  Ultimately, however, the Circuit decided that Claxton’s claims of violation of FRE 403 and Brady/Giglio were meritless.
2.               No Statutory or Constitutional Speedy Trial Violation
The indictment was returned on 12/19/06.  Claxton was arrested on 4/23/08 in Florida.  His initial appearance in the USVI was on 7/16/08.  Claxton’s trial began on 5/24/10. 
Circuit said there was no violation under the Speedy Trial Act (STA).  Under the STA, if no severance has been granted, then a period of time excludible as to one defendant is excludible as to all co-defendants.  Thus, even if Claxton was not responsible for any interlocutory appeals or pretrial motions, the appeals of co-defendants and their pretrial motions all served to stop Claxton’s speedy trial clock.
The Circuit also found no constitutional speedy trial violation, distinguishing this case from Velazquez, decided earlier this year.  In Velazquez, 6.5 years passed between the indictment and the arrest of defendant.  The Velazquez court concluded that all four Barker factors weighed in favor of finding a speedy trial violation:  (1) the length of delay was sufficient to trigger a Barker analysis; (2) the gov’t was not reasonably diligent; (3) Velazquez diligently asserted his speedy trial rights; and (4) there was prejudice (in that case, presumptive prejudice due to excessive delay).  On the contrary, for Claxton, the second and the fourth Barker factors weighed in favor of the gov’t.  On the second factor, Velazquez was easily distinguishable because the investigators in that case were lax in trying to find Velazquez – they checked NCIC eight times over five years.  Claxton had moved, left USVI, and the agents found him due to their own police work in tracking his passport application.  Plus, the delay was much shorter.  Therefore, the gov’t was diligent in trying to locate Claxton.  Furthermore, there was no prejudice under the fourth factor because Claxton was at large and unaware of the indictment for much of the pretrial time; he was only incarcerated for 14.5 months of that time; much of that delay was due to his co-defendants’ actions; and there was no specific occurrence of actual (vs. presumed) prejudice.

3.               No Violation of Right to Impartial Jury
Claxton claimed the jury was tainted by pretrial publicity.  Two weeks prior to his trial, there was another related conspiracy trial which was reported in the press.  That trial included the testimony of some of the same witnesses and included an organizational chart that named Claxton.  The Circuit reiterated that pretrial publicity does not necessarily taint the jury as long as the jurors agree to be fair and impartial and consider only the courtroom evidence.  Also, both jurors who had any knowledge about prior case were excused.
            Claxton also claimed jury tampering.  One potential juror was offered a bribe and she shared that information with another person on the panel.  The district court conducted a voir dire of the two, they stated that it wouldn’t affect their judgment, and, most importantly, they didn’t participate in the deliberations.  Therefore, no error.

4.               Defendant Not Eligible for Safety-valve
Prior to sentencing, Claxton had a proffer session with the gov’t.  During the session, Claxton never offered any information about the crime of conviction nor did the government ask for such information.  Because Claxton did not satisfy 5C1.2(a)(5), the district court did not err in imposing the mandatory minimum.

Determining the “most appropriate” Sentencing Guideline for convictions

In United States v. Boney, Nos. 13-3087, 3199 (3d Cir. 9/15/14), the Third Circuit heard cross-appeals from following a sentence imposed as a result of a jury’s verdict of guilt for distributing more than 500 g of cocaine, witness intimidation, and solicitation to intimidate a witness. The Defendant was first arrested after he arranged to buy large quantities of cocaine from someone who turned out to be an informant. Following his arrest, the Defendant agreed to cooperate with the Government, but disenchantment with the DEA led him to seek out a hit man to kill the informant who caused his arrest. The Defendant had a few meetings with the hit man, and told him that if he could not kill the informant, to kill his son.  Alas, the Defendant had not improved his ability to assess potential co-conspirators— the hit man too was a Government informant— and the Defendant was arrested again, this time on the witness intimidation charges. The Defendant was sentenced to 220 months, and appealed his conviction. The Government cross-appealed the District Court’s application of the Sentencing Guidelines.

The Court made short work of the Defendant’s appeal of his conviction, dismissing his five issues in a single footnote. Its opinion concerns the Sentencing Guidelines issues raised by the Government. The Court found that the District Court incorrectly selected §2J1.2—obstruction of justice— for sentencing the Defendant for the conviction for 18 U.S.C. § 1513(a)(1)(B) (attempting to kill another person with intent to retaliate against that person for providing to a law enforcement officer information relating to the commission or possible commission of a Federal offense). The Government contended, and the Court agreed, that the “most appropriate” guideline (§1B1.2 Application Note 1) for determining the Defendant’s score was § 2A2.1 (Attempted Murder).  The District Court erred in looking to the testimony presented at trial, rather than the conduct charged in the indictment, for determining the correct guideline. This crime charged attempted murder, and not obstruction of justice, so the correct guideline was the one that related to attempted murder.

The Court had more bad news for the Defendant. The witness intimidation was charged, and the Defendant convicted, under 18 U.S.C. §373 (solicitation of a person to attempt to kill another with intent to retaliate for providing information to a law enforcement officer relating to the commission or possible commission of a Federal offense, as prohibited by 18 U.S.C. §1513(a)(1)(B)). Although the Sentencing Guidelines Statutory Index lists two crimes applicable to §373 (§2A1.5 (Conspiracy or Solicitation to Commit Murder) and § 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense and Guideline)), the District Court chose neither, again choosing  §2J1.2—obstruction of justice. The Court concluded that §2A1.5 was the “most appropriate” guideline, again, as the Defendant was charged and convicted of soliciting a murder.

The Defendant’s pre-sentence report had calculated the Defendant’s Guidelines sentencing range as 360 months to life, but the District Court had calculated the Defendant’s Guidelines sentencing range as 151-188 months. When sentencing the Defendant though, it varied upward and imposed a sentence of 220 months. The Court remanded the matter for resentencing.

Proper and improper application of cross-referenced Sentencing Guidelines and consequential enhancements

United States v. Solomon, No 13-3108 (3d Cir., 9/15/14), concerns the application of two Sentencing Guidelines sections, §§ 2C1.1(c)(1) (“Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions”) and 3B1.3 (“Abuse of Position of Trust or Use of Special Skill”).  The Court affirmed the District Court’s application of the first, but overturned its application of the second.

The defendant was a police chief who accepted money from a confidential informant to provide protection for a drug sale. After that transaction, the defendant agreed to provide protection for future drug transactions, and also to sell some law-enforcement restricted Tasers to the CI. After a few more transactions, and the transfer of the weapons, the defendant was arrested. He pled guilty to extortion under color of official right in violation of 18 U.S.C. §1951.

After applying his acceptance of responsibility and his lack of a prior record, the defendant’s initial guidelines range was 30 to 37 months. §2C1.1(c)(1) includes a cross-reference that requires, when the offense was committed for facilitating another crime, application of the offense guideline to a conspiracy to commit that offense if it is greater than the guideline initially determined.  In this case, the cross-referenced crime was conspiracy to traffic in cocaine, and due to the amount involved, the guideline level was 31. The government also asked the District Court to apply an additional 2 levels under §3B1.3 for abuse of a position of trust.  Over the Defendant’s objection, the District Court applied both.

The Court ruled that the §2C1.1(c)(1) was properly applied.  His extortion was committed to protect the commission of another crime. The defendant argued that since the crime was actually staged by the government, there was no other crime, and there were no drugs. Nevertheless, the defendant agreed to facilitate a transaction involving an agreed amount of drugs— real or not real—  and a comment in the drug crime guideline allowed the use of the agreed upon amount of drugs to determine quantity. The defendant’s argument that the actual crime was obstruction of justice, because he agreed to keep other law enforcement away from the transactions, was also to no avail, as the Court found his crime more akin to “facilitation”—  i.e., helping the transaction to occur— than “obstruction” or “concealment”, which it described as retrospective and occurring after the crime occurred.  Because §2C1.1(c)(1) was not ambiguous, the Court also refused to apply the rule of lenity to find that it did not apply to another criminal offense.

The defendant fared better though with his argument against the application of §3B1.3.  The Court accepted his argument that it could not apply to sentences originating under §2C1.1.  §3B1.3 applies a two level enhancement if the defendant abused a position of public trust in a manner that concealed or facilitated the offense.  §1B1.5(c) states that Chapter Three adjustments are determined in respect to the cross-referenced guideline, “unless otherwise provided.” Application note 6 of §2C1.1 prohibits the use of the abuse of trust enhancement. The Court rejected the argument that the abuse of trust enhancement should be applied to the guideline for the cocaine transaction, which contains no such limitation.  Even though the defendant was sentenced under the drug transaction guideline, that was due only to §2C1.1, and therefore its limitation on the enhancement survived the cross-reference. The matter was therefore remanded for resentencing without the two level enhancement.

Image from Yale Law Journal.

Friday, September 12, 2014

Alleyne error (924(c) count where defendant sentenced for brandishing but only charged with use) is not structural and was harmless

(Rendell, Fisher, and Chagares, Circuit Judges) (Fisher, majority; Rendell, dissent)

       United States v. Lewis, Appeal No. 10-2931, 2014 WL 4413535, was remanded from the Supreme Court for further consideration in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that facts increasing a mandatory minimum must be charged in an indictment, presented to a jury, and proven beyond a reasonable doubt.  

        Here, Lewis was charged with using and carrying a firearm during a crime of violence (indictment and jury instructions) but sentenced for brandishing a firearm, resulting in a consecutive seven-year, instead of five-year, term of incarceration.  The Third Circuit held that this Alleyne error is not structural and is reviewed for harmlessness when properly preserved.  The Court explained there is a strong presumption that constitutional errors are harmless, see Neder v. United States, 527 U.S. 1 (1999), and that the most analogous error, Apprendi v. New Jersey, 530 U.S. 466 (2000) (relating to facts not proved to a jury that increase the statutory maximum), was not structural.  The Court also rejected Lewis’s (1) due process argument, reasoning reversal is not necessary where an indictment fails to charge an element of the offense, (2) automatic reversal argument, distinguishing cases where no criminal conduct was alleged, and (3) constructive amendment argument, because the difference between use and brandishing changed proof with respect to a particular statutory subsection, not the entire theory of the case. 

As for harmlessness, the Court framed the substantial rights inquiry as whether “the sentence would have been the same absent the failure to submit [the brandishing element] for a jury determination.”  The Court found the grand and petit jury would have found brandishing: (1) the allegations in the indictment, that the “defendants pointed firearms at the customers and employees” satisfied the brandishing element; and (2) a victim testified to the petit jury that a gun was pointed at him and put to his stomach. 

       In dissent, Judge Rendell emphasized that Alleyne did not discuss structural or harmless error and would vacate the sentence as either structural error or not harmless.  Because this was a sentencing error, indeed Alleyne remanded for resentencing consistent with the jury verdict, the majority should not have looked at whether the charging and trial errors were harmless and should not have substituted judicial fact-finding for what the constitution required the grand and petit jury to find.  Instead, the question is simply whether Lewis was prejudiced by his unconstitutional sentence; he clearly was.  Judge Rendell also found this specific type of constitutional error, a defective indictment, which defies analysis by harmless error standards and presents special difficulty in assessing prejudice, was structural.

Thursday, September 11, 2014

Govt's 2 questions regarding post-arrest silence violated Fifth Amendment and were not harmless

  (Rendell, Chagares, and Jordan, Circuit Judges)   

    In United States v. Shannon, Appeal No. 13-2389, 2014 WL 4401054, the Third Circuit reversed a jury verdict (WDPa) for conspiracy to distribute and distribution of five or more kilograms of cocaine, because the government’s questioning of Shannon about his post-arrest silence violated his Fifth Amendment right to remain silent. On cross-examination, a defendant opens himself up to such questioning in the limited scenario where he claims to have told police the same version of events upon arrest. However, this contrast with post-arrest silence must be “blatantly inconsistent,” not simply ambiguous. If there is a constitutional violation, the court applies harmless error analysis, asking whether the government can prove beyond a reasonable doubt that the error did not contribute to the verdict.

     At trial, over a Fifth Amendment objection which was summarily overruled, the government asked Shannon why he had not come forward earlier with his exculpatory version of the facts. Shannon then said he told his lawyer his version of events. The Court found that the government’s argument that the issue was not preserved “actually borders on frivolous” and a defendant does not specifically need to cite Doyle or Miranda when making this objection. Similarly, the Court found that the government’s arguments were “badly strained” and that the transcripts could not “comfortably bear” the government’s interpretation that Shannon opened the door. The Court found the government’s two questions regarding post-arrest silence violated the Fifth Amendment and the error was not harmless. The case was largely circumstantial, not overwhelming, and without the thousands of wiretaps or other sources corroborating Shannon’s link to the conspiracy, Shannon’s credibility “was likely important to the outcome of the case.”

     Although the Court focused on the Fifth Amendment, it also discussed other rulings in an extensive footnote. As for the District Court’s 404(b) and 609(b) ruling that two prior convictions over twenty years old should be admitted, judges are reminded they should “hesitate to admit twenty-year-old convictions when that evidence looks like propensity evidence.” With regard to an Allen instruction, judges are reminded that the model jury instructions are not binding and use of a different instruction is not necessarily erroneous. Judges should be careful when highlighting the need to dispose of cases and the burden involved in calling a new jury.

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...