Friday, December 29, 2017

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits and splitting with the Seventh, held that “a traffic stop, followed by the issuance of a summons, is not an arrest.”  The court also rejected the government’s argument that defendant waived the issue by failing to object to a supplemental PSR addendum.

Monday, December 18, 2017

Court upholds search under "plain feel" doctrine and expands generic robbery definition

In United States v. Graves, No. 16-3995 (3d Cir. Dec. 13, 2017), the Court affirmed Shaun Graves's 100-month sentence for a single count of unlawful firearm possession.  In doing so, the Circuit rejected Graves's claims that he was subject to an unreasonable investigatory search.  More significantly, the Court held that Graves's two prior North Carolina robbery convictions qualified as "crimes of violence" under the Sentencing Guidelines, see U.S.S.G. 4B1.2(a)(2), because they were not broader than generic robbery, as defined by an overwhelming majority of states.

Harrisburg Police Officer Dennis Simmons stopped, handcuffed, and frisked Graves based on suspicion that he had participated in a nearby shooting.  Prior to the stop, Simmons observed Graves walking in a high crime neighborhood at night with another man, both of whom matched descriptions of the shooting suspects.  And when Simmons first saw Graves from his unmarked car, Graves lifted his hands above his head in a manner befitting "a drug dealer or someone who sells something illegal in the street," or someone inviting a physical challenge.  In the course of patting down Graves, Simmons felt several small hard objects in his Graves's pockets.  Based on his training and experience, Simmons suspected those items might be crack-cocaine.  Simmons removed the objects from Graves's pants and discovered they were a bullet and several packets of Depakote, a legal antidepressant.  Simmons and backup officers then placed Graves in a police vehicle, advised him of his Miranda rights, and questioned him.  Graves admitted that he had a firearm in his boot, which Simmons had missed in his patdown search.

The Court concluded that Officer Simmons had reasonable suspicion to stop and frisk Graves.  (Simmons's use of handcuffs, and the probable cause to arrest Graves after the patdown, were not challenged.)  Graves's presence in a high crime neighborhood, physical similarity with the suspect in a recent nearby shooting, and purportedly suspicious reaction to Simmons's unmarked vehicle established a reasonable basis to believe that Graves was armed.  Further, the Court held that, although Simmons was ostensibly searching for a weapon, he was permitted to search the inside of Graves's pocket upon detecting several objects that felt like illegal drugs.  Under the "plain feel" doctrine, because Simmons was still in the process of determining whether Graves was armed, he was free to remove this contraband from Simmons's pocket, despite knowing that it could not be a firearm.  Simmons would have been prohibited from searching Graves's pocket only if he had already completed the patdown for weapons.

Next, the Court affirmed Graves's sentence by concluding that North Carolina robbery qualifies as a predicate crime of violence under the career offender guideline.  In North Carolina, robbery can be committed by using or threatening de minimis force -- for example, by merely swiping a person's hand away from his or her belonging.  Presumably, this offense would not qualify as a crime of violence under the career offender guideline's force clause, U.S.S.G. 4B1.2(a)(1), because it can be committed without violent force capable of causing physical pain or injury to another.  United States v. Chapman, 866 F.3d 129, 132 (3d Cir. 2017).  The Court, however, determined that Graves's prior offenses qualify as crimes of violence because they are not broader than generic robbery, one of the offenses enumerated in U.S.S.G. 4B1.2(a)(2). 

To reach this result, the Court first had to settle upon the generic definition of robbery.  Graves urged the court to adopt the version in the Model Penal Code ("MPC"), a source the Circuit previously identified as "an ideal starting point" for generic-crime analysis.  United States v. Marrero, 677 F.3d 155, 165 (3d Cir. 2014).  Under the MPC's robbery definition, Graves's sentence would have to be vacated: unlike in North Carolina, where robbery may committed with minimal force, the MPC limits robbery to thefts involving the infliction or threatened infliction of serious bodily injury.  Graves's convictions, then, were broader than MPC robbery.

The Court, however, determined that the Model Penal Code ("MPC") does not control robbery's generic definition.  Instead, the Court embraced the government's argument: that the generic version should be the one adopted by the majority of the states.  Indeed, for the first time in its crime-of-violence jurisprudence, the Court held that state legislation is the "most important factor" for identifying a crime's generic definition.  That was especially so here, where a supermajority of 38 states, including North Carolina, do not condition a robbery conviction upon the use or threatened use of violent force.  The Court did note in a footnote that state statutes may not be dispositive where the states are closely divided on a crime's definition or legislative history indicates that Congress or the Sentencing Commission favored a particular generic result.  But in cases, such as this, where the MPC has been embraced by only a small minority of states, the majority state definition will control.     
Graves's sentencing holding may have long-term implications.  Most obviously, under Graves, many, if not most, prior robbery convictions will qualify as crimes of violence under the career offender guideline.  Graves also undermines defendants' reliance on the MPC for generic definitions of crimes, at least where the MPC diverges from the majority of state legislation.  All in all, Graves will make it harder for defendants in the Circuit to avoid career offender enhancements.    

Wednesday, September 13, 2017

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.

The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury from rendering multiple constitutionally sound convictions,” the Third Circuit reasons, “the state court was not unreasonable in sustaining those convictions based on the sufficiency of the trial evidence” — or at least not “so unreasonable as to put it ‘beyond any possibility for fairminded disagreement,’” the opinion elsewhere states, quoting Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).

Note: a defendant had more success last week on a double jeopardy challenge to conviction on multiple firearms counts under Virgin Islands law in United States v. Hodge, No. 15-2621. At the same time, Hodge rejected a variety of additional double jeopardy challenges, including one to multiple mandatory minimums under 18 U.S.C. § 924(c) where the defendant committed multiple crimes of violence during the same criminal episode.

In Wilkerson, the Court also renders several procedural rulings, holding that the defendant’s claim on direct appeal that Pennsylvania’s merger doctrine barred imposition of sentence on both counts sufficed to exhaust his federal double jeopardy claim; that the 14-day deadline for notice of a cross appeal in a federal civil case is not jurisdictional; and that the original, pro se habeas petition’s failure to state a subsequently raised Apprendi challenge rendered this claim untimely because it did not “relate back” to the defendant’s double jeopardy claim.

Thursday, September 07, 2017

Court Opens Door for Long-Timers Serving Mandatory Guidelines Sentences

In In re Hoffner–F.3d–, 2017 WL 3908880, the Court today holds that persons sentenced in the bad ol’ days of the mandatory Guidelines may proceed on challenges under 28 U.S.C. § 2255 to guideline enhancements resting on the same language held unconstitutionally vague in the Supreme Court's landmark decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The Circuit thus limits the sweep of Beckles v. United States, 137 S. Ct. 886, where the high court held earlier this year that Johnson’s constitutional rule, invalidating a 15-year mandatory minimum provided by statute, has no application where a defendant was sentenced pursuant to a higher range under the advisory Guidelines system that came to be in 2005. Today’s green light is of profound significance to many, albeit far from all, defendants sentenced under the “career offender” guideline, which commonly doubles and can even triple the sentencing range.

Formally speaking, the Court rules that Hoffner, a federal prisoner seeking leave to file a second or successive motion under § 2255, had made a "prima facie" showing that the applicable pre-filing requirements were satisfied for claims that Johnson rendered sentences under the mandatory Guidelines unconstitutional inasmuch as predicated on the "residual clause" found at U.S.S.G. § 4B1.2 from 1989 onward (until revised last year by the Sentencing Commission pursuant to Johnson). That is, a prisoner may go forward on a second or successive § 2255 motion where his sentence was enhanced based on a prior conviction for an offense that – in the language held unconstitutionally vague in Johnson – "otherwise involves conduct that presents a serious potential risk of physical injury to another." The prima facie showing entitles Hoffner and many similarly situated prisoners to pursue relief despite the usual bar on successive motions. Those motions will now be resolved in the first instance in the district courts, with the issue likely to return to the Third Circuit in the future.

Congratulations to Lisa Freeland and her colleagues in the Defender’s office in the Western District of Pennsylvania on emerging victorious from the house of horrors that is today’s ‘retroactivity’ doctrine.

Friday, August 18, 2017

Federal Court upholds RICO and wire fraud conviction for New Jersey political party official

In United States v. Ferriero, __F.3d.__, 2017 WL 3319283, 15-4064 (3rd Cir. Aug. 4, 2017), the Third Circuit upheld a RICO violation when a political party official arranged to receive a percentage of fees paid to a vender that he recommended to local offices during the course of his official duties.  The Court held that there is no requirement to prove an agreement to “undermine the integrity of a public action” when the RICO charges stem from the current version of New Jersey’s bribery statute.  The Court also found that a communication can be fraudulent and violate federal wire fraud law when it contains half-truths and omits critical information.  Furthermore, it found that the New Jersey bribery statute is neither overbroad nor unduly vague, and the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2015), did not impact the present conviction because that case dealt with “officials acts” and not “public issues.”

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).  The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”  Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force capable of causing physical pain or injury to another person” as set forth in Johnson v. United States, 559 U.S. 133 (2010).  The Court concluded that the “use of physical force” as used in the Sentencing Guidelines “involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”

Next, because Section 876(c) is a divisible statute, containing alternative versions of the crime, the Court applied the modified categorical approach.  Based on Chapman’s indictment, the Court focused on the second of the two versions of the crime, which has two elements: (1) “the defendant knowingly mailed a threatening communication;” and (2) “the communication contained a threat to injure the person of the addressee or another.”  The Court noted that the “threat to injure” element closely tracks the language in the force clause of the Sentencing Guidelines.  The Court rejected the argument that a threat to injure does not necessarily require the threat to use violent physical force.  The Court relied on Castleman and also concluded that beyond “the slightest offensive touching” which does not qualify as “physical force,” there is no minimum quantum of force necessary to satisfy Johnson’s definition of physical force.

Judge Jordan’s concurring opinion is significant.  He argues that the unfettered growth of the categorical approach is leading to a host of problems and not achieving its intended goal.  He is troubled by the requirement that judges must ignore real world facts.  He joins other judges who have urged that the categorical approach be reconsidered.  He proposes that judges be permitted to consider the facts of a previous conviction when those “facts are beyond fair dispute.”

Denial of Suppression Reversed Because of De Facto Arrest

In United States v. Wrensford, __ F.3d __, 2017 WL 3222511, No. 16-1373, No. 16-1395 (3rd Cir. July 31, 2017), the Third Circuit addressed the appeals of two co-defendants who were convicted of first degree murder and charges related to the illegal use and possession of a firearm.  In reversing and remanding the case as to one defendant and affirming as to the other, the Circuit provided guidance on the parameters of the Fourth Amendment and de facto arrests.  It also reaffirmed prior rulings regarding the standards for reviewing (1) motions for a mistrial based on non-unanimous jury verdicts; (2) refusal to give a voluntary manslaughter instruction; and (3) arguments that the evidence submitted at trial was insufficient to support a conviction.

In the most salient part of this opinion, the Third Circuit held that the police conducted a de facto arrest when they forcibly removed Wrensford from the place where he was stopped, brought him to a police station, and placed him in a cell without probable cause and without reading him his Miranda rights.  Further the identification that stemmed from that arrest was tainted.  The Court remanded the case to the district court to determine whether a Fourth Amendment exception would have nonetheless protected the identification and whether admission of the information during trial was harmless beyond a reasonable doubt.
The Court also found the district court did not abuse its discretion in denying motions for mistrial based on non-unanimous jury verdicts.  It reasoned that counsel’s failure to object to further polling of a dissenting juror, the interest in obtaining at least a partial verdict in a case involving multiple defendants and multiple counts, the Court’s supplemental jury instruction, and the lack of evidence that a juror’s will had been overborne during re-deliberation all weighed in favor of affirming the conviction.
Also proper was the district court’s refusal to give a voluntary manslaughter jury instruction because the evidence in the case did not indicate that the crime resulted from a sudden quarrel or in the heat of passion.  Finally, the Court reaffirmed its established holding that any review of the sufficiency of the evidence is highly deferential.  The evidence supporting Muller’s conviction—which included witness testimony placing Muller at the scene of the crime, an identification based on a valid photo array, and Muller’s confessional conduct when apprehended by law enforcement—was sufficient to uphold his conviction.

Wednesday, August 02, 2017

Government does not need warrant for cell tower information when complying with statutes allowing for court orders to cell phone companies for location information/ Religious Freedom Restoration Act cannot be used to violent crimes

USA v. Stimler, et al., No . 15-4053, 4094 and 4095 (3d Cir, 7/7/17)

The defendants were all Orthodox rabbis convicted of attempted kidnapping and conspiracy for a scheme of kidnapping and torturing Jewish men to convince them grant their wives  divorces under Jewish law. The panel opinion, in a Hebrew and Yiddish laden explication, described the ritual practices the Defendants believed Jewish law required or entitled them to  engaged in. “Observant” Jews (anyone familiar with the politics of Israel these past few months will understand the quotation marks) adhere to a doctrine that a wife cannot divorce her husband without his permission, not matter what the cause of her desire to leave the marriage. A rabbinical court can order Jewish men to give consent, but if the husband refuses, the court, outside of Israel where such courts have the power to order recalcitrant men jailed for failing to give consent, it is considered a mitzvah to get such a man to give consent, and the Defendants herein hired themselves out to perform such mitzvahs. Gey vays.

Learning of the scheme, the an FBI agent posing as a Jewish woman deprived  a Jewish  divorce for lack of her husband’s consent, met with one of the defendants who promised her “what we’re doing is basically gonna be kidnapping a guy for a couple of hours and beatin’ him up and torturing him . . ..”   Two of the defendants convened their court with a third rabbi and issued a judgment authorizing the use of force to gain consent. One of the defendants with the FBI agent then planned the kidnapping, and at the time and place of the planned kidnapping one of the court members and a third defendant met to surveil the area where it would occur. The FBI then arrested all of them.

The panel considered at length only three of the issues the defendants raised. First, it considered a challenge to evidence obtained pursuant to a court order the Government received under Section 2703(d) of the Stored Communications Act (SCA), compelling AT&T to turn over historic cell site location information (CSLI) generated by one of the defendant’s phones. The information gave the location of cell towers nearest the phone that relayed calls or messages from it. The Court, in a lengthy discussion, rejected the defendant’s challenge that pursuant to the 4th Amendment, a warrant was needed for the disclosure. Note that the United States Supreme Court has granted cert. on this issue in another case— if you want to preserve the claim, you can use this ACLU cert. petition filed in that matter for reference. It also rejected the defendant’s argument that the Government failed to establish the “reasonable grounds” necessary for a magistrate to order the disclosure of the cell tower information— the information provided about the kidnapping ring, how a co-conspirator implicated the defendant, and a description of the involvement of each defendant satisfied the statutory standard.  Judge Restrepo dissented from this part of the opinion, opining that a warrant is necessary for this information.

The defendants then challenged their convictions under the Religious Freedom Restoration Act (“RFRA”). The RFRA ““substantially burden[s] a person’s exercise of religion” unless the government can demonstrate, inter alia, that the burden is the “least restrictive means of furthering [a] compelling government interest.” Invoking the RFRA requires “making out a prima facie case by showing that (1) it possesses a sincerely held religious belief, and (2) the government’s conduct substantially burdened that belief. “ The burden then shifts to the government to show that the prosecution is the least restrictive way of supporting a compelling interest. The defendants failed to show that their actions overrode the government’s interest in preventing kidnapping and torture. Another religion based challenge to the district court’s ruling barring the introduction of evidence explaining Jewish marital law to negate the specific intent required for conviction failed too. The motive to perform a mitzvah could be the reward for a kidnapping, and in any event, religious motivation cannot negate the intent to commit a crime. The district court also correctly ruled inadmissible evidence that Jewish men who signed a Jewish marital contract impliedly consented to being kidnapped and tortured at the behest of rabbis. Such consent must be specific to have any meaning at all.

The defendants challenged the admission of certain co-conspirator statements. Some of the challenged statements were made in response to a challenge to the rabbis authority by one of their victims. As none of the defendants could have believed they were making statements to help a criminal prosecution, they were not testimonial, and thus not subject to a Confrontation Clause challenge. They were also admissible under F.R.E. 801. The statements were made to assert the authority of the defendants to act as they did, and were thus admissible.

Challenges to the sufficiency of the evidence and the alleged outrageousness of the FBI conduct of the investigation were also dismissed.

When sentencing for state crimes under the Assimilative Crimes Act, district courts must apply Sentencing Guidelines for crimes that are “sufficiently analogous” when elements of state and federal crimes are compared

USA v. Carolyn Jackson and John Jackson, No. 16-1200 (7/6/17, 3d Cir.)

In an 80 plus page opinion, followed by a 30 or so page impassioned dissent form Judge McKee, a panel overturned a sentence imposed following a trial of two defendants who, for actions committed on a military vase, were acquitted of federal assault charges but convicted of various New Jersey laws against child abuse for which there were no precise federal counterparts.  The government contended that the Court, had it followed federal sentencing guidelines, should have imposed a sentence in the range of 292 to 365 months. (The PSR had calculated a slightly lower range.) The defendants, wife and husband, received sentences of imprisonment of respectively 24 months (as well as three years of supervised release) and three years of probation (as well as 400 hours of community service and a $15,000 fine. The district court found no analogous sentencing guidelines, and the government appealed.

The panel noted the case was unusual because defendants are not usually sentenced in federal court for violating state laws, but under the Assimilative Crimes Act (“ACA”), state crimes committed on federal property or installations located in those states can be prosecuted in state court. The panel’s opinion never gives a straight recitation of the facts proved at trial, relying instead on snippets of the indictment and jury charges to discuss the defendants’ conduct. Basically though, they engaged in acts of assaulting foster children physically, withholding nourishment and timely medical treatment, and causing them to consume food and liquids that caused pain and suffering. The defense apparently attributed their actions to excessive but not cruel child discipline.

The panel began its analyses at U.S.S.G. § 2X5.1, which requires application of guidelines for “sufficiently analogous” offense guidelines. It adopted a “ballpark” or “plausible analogy” test to determine whether a state crime had an analogous offense for which a guideline could be applied. Its examination led it to conclude that the assault guidelines for 18 U.S.C. §113, which prohibits “[a]ssaults within the special maritime and territorial jurisdiction” to apply even though the defendants were acquitted of all parts of §113 charged against them. The differences between the convictions for the state crimes and §113 were not so great that guidelines for parts of that statute could not be used as guidelines for the state convictions. No fact finding was necessary to conclude that sufficiently analogous guidelines existed as the test requires only a comparison of legal elements. The guidelines that apply do not need to perfectly match the state crime. The panel thought little of the district court’s observations at sentencing, based on her experience as a state family court judge, that the interests of the state law differed from those vindicated by the federal laws the government thought required application of specific sentencing guidelines— her job, the panel implied, was merely to match the elements as best as possible, if possible. In this case, the panel ruled, it was possible.

The panel also directed the district court when resentencing to engage in the fact finding required for application of the Sentencing Guidelines and 18 U.S.C. §3553(1) factors. It also noted that the ACA sets the state sentences as setting the minimum and maximum sentences that could be imposed— the government’s proposed sentences did not exceed those.

Finally, the panel deemed the district court’s sentence not to be substantively reasonable, and found that no reasonable sentencing court would have imposed the sentence imposed by the district court, it being too lenient. With the remand, the panel also took the rare step of instructing the district court as to the panel’s assessment of the seriousness of the defendants conduct, the need for a sentence that will deter similar conduct, and how to assess the defendants’ military service and life as a spouse of a member of the military, and the defendants’ expressions of contrition, which the panel thought the district court attributed too much weight. The panel’s assessment of these factors were different than those of the district court, and will militate in favor of a higher sentence. The panel, in a final footnote, expressed displeasure with the government’s citations to press reports and expressions of shock by spectators to the sentencing. The panel reminded the government that a sentencing court should try to curry favor with public opinion, and a press report is not proof that a district court committed reversible error.

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...