Tuesday, October 28, 2014

Circuit Court grants habeas petition, finding trial counsel provided ineffective assistance of counsel regarding the availability of safety valve reduction and noting that the District Court’s statements during the plea colloquy did not alleviate counsel’s error.

United States v. Bui, No. 11-3795, 2014 WL 5315061 (October 20, 2014)

Dung Bui was indicted on the following four drug counts: (1) conspiracy to manufacture more than 1,000 marijuana plants, in violation of 21 U.S.C. § 846; (2) manufacturing and aiding and abetting the manufacturing of more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) using a house to manufacture and distribute marijuana, in violation of 21 U.S.C. § 856(a)(1); and (4) manufacturing and distributing marijuana "within 1,000 feet of the real property comprising Hampden Park, Reading, Pennsylvania, an athletic field owned and operated by the Reading School District," in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.

Bui pled guilty to counts one and four as part of a plea agreement because his counsel told him and his family that he was safety valve eligible and thus could get a reduced sentence. His counsel filed a §3553(f) motion for a sentence reduction, but later withdrew the motion, explaining that under United States v. McQuilkin, 78 F.3d 105 (3d Cir. 1996), §3553(f) did not apply to convictions under 21 U.S.C. §860 (count four). In his pro se habeas petition, Bui argued that (1) his guilty plea was induced by his counsel’s misrepresentations and, as result, was not voluntary or knowing; (2) the erroneous safety valve advice was ineffective assistance; (3) the District Court erred in receiving his guilty plea when there were no facts supporting whether Hampden Park was a school; and (4) by neglecting to explain the factual predicate for the §860(a) violation, his counsel was ineffective.

Applying the Strickland test, the Third Circuit agreed with Bui’s second argument that his counsel was ineffective. Under the first prong of the test (counsel’s errors were "so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment"), Bui’s counsel provided him erroneous advice regarding the applicability of the safety valve reduction. The Court also noted that counsel filed the 3553(f) motion, "which he apparently did not research until immediately before the sentencing hearing," and that his "lack of familiarity with an eighteen-year-old precedent and his erroneous advice based on that lack of familiarity demonstrate counsel's performance fell below prevailing professional norms required by [United States v.] Smack [, 347 F.3d 533 (3d Cir. 2003)] and Strickland."

Furthermore, the Court explained that "[u]nlike the majority of guilty plea cases, the District Court’s plea colloquy here did not serve to remedy counsel’s error." Many of the District Court’s statements "serve[d] to reinforce" counsel’s incorrect advice and "the District Judge never stated that Bui was ineligible for the safety valve reduction due to his decision to plead guilty to the §860 offense."

Bui satisfied the second prong of the Strickland test ("but for" the errors, the result would have been different) because there would have been no incentive to plead guilty if he was not going to benefit from the safety valve reduction. The Court did not reach the issue of whether Hampden Park was a school district, which was the basis of the § 860 violation, but noted that factual and legal arguments exist on whether the park is a school, and thus remanded.

The procedural history of this case is also interesting. The District Court found that Bui’s guilty plea was knowing and voluntary and thus the collateral-attack waiver was enforceable and that Bui did not establish prejudice. The Third Circuit granted Bui’s request for a certificate of appealability and appointed appellate counsel, who then filed an Anders brief.  The Court permitted counsel to withdraw and appointed new counsel. Notably, the government did not seek to enforce the collateral waiver, "acknowledging that ‘Bui’s appeal rises or falls on the basis of his claim that he should be relieved of his guilty plea, which included the waiver.’" See here and here for more on appellate waivers in the Third Circuit.

Friday, October 24, 2014

Good Faith Exception to Fourth Amendment Exclusionary Rule Applies to Pre-Jones GPS Surveillance

In United States v. Katzin, No. 12-2548, 2014 WL4851779 (3d Cir., Oct. 1, 2014), Defendants challenged the warrantless tracking by FBI agents via a GPS device. The agents installed the device onto Defendants’ van in December, 2010, after Defendants had been identified as suspects in a string of pharmacy burglaries. The GPS surveillance was conducted over the course of two days. Subsequently, the U.S. Supreme Court rendered its decision in United States v. Jones, 132 S.Ct. 945 (2012), in which the Court ruled that GPS installation and surveillance constituted a search that is subject to the warrant requirements of the Fourth Amendment. Citing Jones, the trial court in Katzin suppressed the evidence gathered via GPS. A panel of the Third Circuit affirmed the lower court’s ruling that a warrant was required in this instance. The panel also held that the good faith exception to the Fourth Amendment=s exclusionary rule did not apply, thereby upholding the district court’s suppression order. The Third Circuit sitting en banc, reached the opposite conclusion. Citing United States v. Leon, 468 U.S. 897 (1984), and Davis v. United States, 131 S.Ct. 2419 (2011), the court ruled that, as the police conduct occurred before the Supreme Court had issued its ruling in Jones, the good faith exception to the Fourth Amendment=s exclusionary rule applied to save the GPS evidence from exclusion.
The Third Circuit cited Herring v. United States, 555 U.S. 135 (2009), to conclude that suppression is warranted only where police are sufficiently deliberate and culpable that deterrence will be effective and outweigh the costs of suppression.  

The Third Circuit determined that suppression is unwarranted in these circumstances if, in light of the totality of the circumstances, the officers possessed an objectively reasonable good faith belief that their conduct was lawful. Pursuant to Davis v. United States, 131 S.Ct. 2419 (2011), the Court held that the agents acted in accordance with Abinding appellate precedent,@ namely the Supreme Court’s decisions in United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984). Knotts and Karo both involved the warrantless installation of a beeper onto a canister containing contraband, and surveillance of the suspects’ vehicles on public roads. Despite the factual dissimilarities between beepers and GPS, and the tracking at issue, the Court held that the agents’ reliance upon these Supreme Court rulings was objectively reasonable.  

In the alternative holding, the Third Circuit ruled that the existence of “binding appellate precedent” is not necessary to a finding of good faith. Davis happened to involve such precedent, but the good-faith issue is broader, asking whether agents had an objectively reasonable belief that they were acting lawfully. The Circuit answered that question in the affirmative here, based on the totality of the circumstances.


Wednesday, October 15, 2014


Appellants Ronald Salahuddin, a former deputy mayor of Newark, and Sonnie Cooper, a demolition contractor, appealed their convictions under the Hobbs Act, 18 U.S.C. §1951(a), for conspiring to extort under color of official right.  Specifically, Salahuddin was charged with using his office to obtain charitable and political donations, and to direct contracts to Cooper’s business.  There was also evidence that Salahuddin was a “silent partner” in Cooper’s demolition business.  The government used a confidential informant (“C.I.”) to gather evidence against the appellants.  The C.I., in turn, avoided prosecution on bribery and tax evasion charges.  Appellants were charged in a five count indictment, but were convicted only of the conspiracy charge.  They each raised numerous, separate issues on appeal, which the Third Circuit rejected in United States v. Salahuddin (13-1751).

            Salahuddin argued that conviction under the Hobbs Act required proof of an overt act. As a matter of first impression, the Third Circuit ruled that conviction under the conspiracy provisions of the Hobbs Act does not require proof of an overt act.  The appellate court applied the Supreme Court holdings in U.S v. Shabani, 513 U.S. 10 (1994) and Whitfield v. U. S., 543 U.S. 209 (2005), which stand for the proposition that when a statue is silent on the issue of overt acts, then proof of an overt act is not required.  While most circuits have ruled similarly, at least one circuit has required proof of an overt act.  On a related appellate issue, Salahuddin argued that the indictment was constructively amended because it included overt acts in the indictment, but the jury instructions did not require proof of those acts.  Initially the Third Circuit was unconvinced that the language in the indictment referred to overt acts.  More importantly, the Third Circuit rejected this argument because overt acts was not a required element of the offense.  

Salahuddin then argued that the government was required to show that at least one member of the conspiracy received a benefit from the conduct.  The Third Circuit rejected this argument.  The circuit court noted that a conspiracy charge differs from completion of an offense.  The fact that conspirators failed in their goal to obtain a benefit through extortion does not negate the conspiracy offense.  Therefore proof that defendants received the desired benefit is not required for conviction of conspiracy under the Hobbs Act.  

Additionally, Salahuddin raised several potential jury instruction errors.  First, he challenged his conviction on the basis that the jury was not instructed to find a quid pro quo arrangement between himself and the C.I. for the charitable donations to organizations supported by city officials in exchange for demolition work.  Since no quid pro quo requirement exists for cases involving non-campaign charitable donations, the trial court was not required to give such a jury instruction. Next, Salahuddin contended that in addition to the general unanimity instruction, the court should have sua sponte instructed the jurors that they needed to unanimously agree to facts supporting one object of the conspiracy.  The appellate court rejected this argument, finding that the trial court was not required to issue such a jury instruction.  Finally, Salahuddin challenged the jury instructions because the trial court did not initially provide the definition of extortion under color of official right when reading the jury instruction on conspiracy.  However, the trial court provided the definition moments later.  The appellate court found that the brief delay between the reading of the initial instruction and the definition was not plain error.

Appellant Cooper also raised several appellate issues, all of which were rejected by the Third Circuit.  First, Cooper challenged the denial of his Rule 33 motion.  Specifically, he argued that the evidence did not support the verdict because the C.I’s testimony was biased and false, and further the government did not provide sufficient evidence.  The Third Circuit affirmed the denial of the motion ruling that issues concerning the C.I.’s credibility were for the jury to weigh and decide.  Moreover, the jury was aware of the C.I’s motivations for testifying, i.e., his deal with the government.  Furthermore, in addition to the C.I’s testimony, the government provided recordings of the appellants which provided strong evidence against themselves. Finally, regarding evidentiary matters, the Third Circuit ruled that direct evidence was not necessary, but rather the charges could be proved through circumstantial evidence. 

Next, Cooper challenged the denial of his Rule 29 motion.  The motion was based on the same arguments made in support of the Rule 33 motion, plus he further argued that the jury’s not guilty verdict on the Hobbs Act attempt charge was inconsistent with the guilty verdict on the conspiracy charge.  The appellate court explained that the requirements for an attempt count are different from a conspiracy count.  Specifically, “attempt” requires evidence that the defendants took a substantial step toward completion of the extortion, while “conspiracy” does not require an overt act.   Also, it is possible to enter into a conspiracy, but not take a substantial step toward completion of the offense.  Therefore, the verdicts were not inconsistent. 

Lastly, Cooper argued that the trial court should have granted his motion to vacate the conviction based on “selective prosecution and outrageous government conduct.” This issue was waived because Cooper did not raise it before trial.

For all of the reasons discussed above, the Third Circuit affirmed the convictions of both Salahuddin and Cooper. 

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

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