Sunday, December 23, 2018

Gun suppressed for lack of reasonable suspicion despite match in clothing and race between fleeing suspect and man stopped nearby

In United States v.Bey, No. 17-2945 (Dec. 21, 2018), the Court reverses the denial of a motion to suppress, holding that while officers acted within the authority conferred by Terry v. Ohio in initially ordering the defendant to stop, his continued detention became unreasonable once officers “had a good look at his face and features,” which differed significantly from the description of the suspect under pursuit.

The episode began when police stopped a vehicle occupied by three black men for not coming to a complete stop at a stop sign. In seeking to ascertain each man’s identity, police noticed evidence of marijuana possession and decided to remove the occupants from the vehicle. Shortly thereafter, a gun was spotted near where one man had been seated, and that man took flight. Police launched a pursuit and, moments later, realized that meanwhile a second of the vehicle’s occupants – a man whom they had by this time identified as one Amir Robinson – had fled in the opposite direction. They called for backup, and an ensuing radio dispatch described a black man about 6’0” to 6’1” in height weighing 160-170 pounds and wearing dark blue pants and a red hoodie.

Over the next few minutes, an Officer Powell used a cruiser’s mobile data terminal to view a file photograph of Robinson, a 21-year-old, light-skinned African American man with a small patch of hair under his chin and a tattoo on his neck. Given the direction in which Robinson fled and what patrolling officers knew of the neighborhood, police suspected he might have sought to escape detection by blending in at a local bar. As Powell and a second officer approached the bar, a man wearing a red, hooded puffer jacket and black sweatpants exited and began walking in another direction. The police drew their guns and ordered him to stop and show his hands. The man complied and turned around, whereupon police beheld defendant Muadhdhin Bey, a 32-year-old, dark-skinned African American man weighing about 200 pounds with a full beard. In short order, officers said, they discovered a gun on Bey, which led to charges of unlawful possession after prior conviction of a felony.

Bey unsuccessfully moved to suppress the gun, arguing that the broadcast description was too generalized to support reasonable suspicion and, alternatively, that reasonable suspicion dissipated once he turned to face the officers and they got a good look at him. On appeal, the Third Circuit rejects the first argument but embraces the second.

In an opinion authored by Judge McKee and joined by Judges Vanaskie and Restrepo, the Court emphasizes with regard to Terry intrusions that the government carries the burden to show reasonable suspicion justifying “each individual act constituting a search or seizure.” With regard to the initial command to stop, the Court distinguishes the facts of United States v. Brown, 448 F.3d 239 (3d Cir. 2006), which held a description of two black suspects in an attempted robbery insufficient to supply reasonable suspicion justifying the stop of the defendant and a second black man three blocks away in Philadelphia’s center city. While the defendant and the second man matched the race and height of the two suspects, they were some years older and, unlike the suspects, had full beards.

The Court now explains that the stop in Brown “was based only on a generalized description of the suspect,” whereas here Bey “was wearing clothing similar to that worn by the fleeing suspect and he was where police expected to find that suspect.” But Brown cuts in the opposite direction, the Court holds, with regard to Bey’s alternative claim that reasonable suspicion dissipated once he turned to face the officers. At that point, officers “should have noticed the clear differences in appearance and age between the two men.” That made his continued detention unlawful.

The Court is not persuaded by the district court’s conclusion that because a photograph of Amir Robinson (the man who fled the traffic stop) introduced at the suppression hearing had been taken six months after the night Bey was stopped and arrested, the differences between Robinson’s appearance in the photograph and Bey’s appearance were not controlling. This line of analysis, the Third Circuit explains, improperly shifted to the defense what was properly the government’s burden. To the extent the image actually viewed by Officer Powell may have more closely resembled Bey, “the Government’s failure to produce that image fatally undermines its attempt to prove that the police acted reasonably in detaining Bey after they had a good look at him.”

Wednesday, December 19, 2018

Challenges to anonymous tip and ‘career offender’ designation fall short

In United States v.McCants, No. 17-3103 (Dec. 18, 2018), the Court rejects a Fourth Amendment challenge to a stop and frisk predicated on an anonymous tip and upholds application of the Sentencing Guidelines’ ‘career offender’ enhancement based on prior New Jersey robbery convictions.

As summarized by Judge Hardiman in an opinion joined by Judges Krause and Bibas, an unknown “caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, both of which were quickly confirmed by the police.”  The tipster reported that a man with braids and a red hat was “out here beating up his girlfriend … really bad right now” near the intersection of Grove and Williams in East Orange.  The caller also said “I think he has a gun,” then hung up without identifying herself.  Within a minute, an officer had responded to the reported location and spotted a man with dreadlocks and a red hat walking on Grove Street with a woman.  The woman showed no sign of injury.  Police searched the man and found a handgun, then placed him under arrest and recovered heroin, leading to gun and drug trafficking charges under 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a), (b)(1)(C).
In the course of its Fourth Amendment analysis, the Court reaffirms five factors it has previously articulated for assessing the reliability of anonymous tips, such as whether the information is relayed face-to-face, whether the tipster can be held responsible if allegations turn out to be fabricated, and whether the tip predicts what will follow.  Though several of the factors were lacking here, the Court reiterates that “a tip need not bear all the indicia – or even any particular indicium – to supply reasonable suspicion.”  In the Court’s view, the tip was less “limited and vague” than the one held to lack sufficient reliability in Florida v. J.L., 529 U.S. 266 (2000), where the caller reported that a young black man in a plaid shirt at a bus stop was carrying a gun.  In J.L., the Court states here, “the informant reported significantly fewer details and described potentially innocuous behavior without explaining why the informant thought the subject was committing (or was about to commit) a crime."

The Court also states that the East Orange caller’s use of 911 added to the tip’s reliability under the circumstances, and that proper deference to “law enforcement officers’ experiences and training regarding domestic violence” foreclosed the argument that the woman’s evident lack of injury dispelled reasonable suspicion.  For these points the Court draws heavily on Navarette v. California, 572 U.S. 393 (2014), which held an anonymous 911 caller’s report sufficient under the circumstances to establish reasonable suspicion of drunk driving even though police did not observe any erratic driving.

On the sentencing challenge, the Court holds N.J. Stat. Ann. § 2C:15-1 “divisible” without citing state decisional law, reading United States v. Peppers, 899 F.3d 211 (3d Cir. 2018), and United States v. Ramos, 892 F.3d 599 (3d Cir. 2018), to make it sufficient that on the face of the statute, each of three disjunctively worded subsections “requires different proof to sustain a second-degree robbery conviction.”  Construing transcripts of colloquies from the defendant’s prior cases, the Court determines that he pled guilty to the offense defined by subsection (a)(2) of the statute, which is violated when a person, in the course of committing a theft, “[t]hreatens another with or purposely puts him in fear of immediate bodily injury.”

This definition is a categorical match for a “crime of violence” under the career offender guideline at U.S.S.G. § 4B1.2(a) on each of two analyses, the Court concludes.  On the rationale of United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), the requirement that the defendant intentionally place another in fear of physical pain or injury means the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  Alternatively, the requirement that the defendant threaten bodily injury means the offense involves more than “de minimis force,” rendering it within the scope of “robbery” as that term is generically used in the guideline to enumerate one type of qualifying predicate.

Tuesday, December 04, 2018

Bridgegate Defendants: Court upholds wire fraud, and theft or bribery concerning programs receiving federal funds convictions, reverses deprivation of civil rights convictions.

U.S. v. Baroni, 17-1817, 2018 WL 6175668 (3d Cir. Nov. 27, 2018)

Defendants Baroni and Kelly were charged with conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, § 666(a)(1)(A); conspiracy to commit wire fraud, § 1349, and two counts of the substantive offense, § 1343; and conspiracy against civil rights, § 241, and the substantive offense, § 242. 

The charges stemmed from “Bridgegate”—the much covered scheme to impose gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie.  Under the guise of conducting a “traffic study,” Baroni and Kelly, among others, conspired to limit Fort Lee motorists’ access to the George Washington Bridge, over a period of four days, causing severe traffic jams and safety issues.

A jury convicted on all counts.  Defendants challenged only their various convictions.  The Court upheld the wire fraud, (§§ 1349 and 1343), and theft or bribery concerning programs receiving federal funds, (§§ 371 and 666), convictions, but reversed the deprivation of civil rights convictions, (§§ 241 and 242).  In brief, the Court held as follows:

I.  The evidence was sufficient to support the jury's finding that defendants obtained, by false or fraudulent pretenses, property of Port Authority of New York and New Jersey as required to support convictions for wire fraud.  The Port Authority had financial interest in its public employees’ time and wages, 14 Port Authority employees were used to realign traffic, Port Authority was required to pay toll operators and other employees overtime and other compensation, and defendants accepted compensation for time spent conspiring to defraud the Port Authority.  Time and wages of public employees of Port Authority of New York and New Jersey constituted a form of intangible property for purposes of wire fraud statute.  Included within the meaning of money or property, for purposes of federal wire fraud statute, is the victim’s right to control that money or property.

II.  The evidence was sufficient to support the jury’s finding that defendants fraudulently obtained, knowingly converted, or intentionally misapplied property, as required to support conviction for theft or bribery concerning programs receiving federal funds.  18 U.S.C.A. § 666.  Defendants forced the Port Authority of New York and New Jersey, which was interstate agency created by Congressional consent that received substantial federal funding, to pay unnecessary overtime to toll workers and divert well-paid professional staff away from legitimate Port Authority activities.

III.  The district court’s error in instructing the jury under § 666 that it did not need to know of the specific property defendants fraudulently obtained, knowingly converted, or intentionally misapplied, was harmless; there was overwhelming evidence that defendants knew of the property fraudulently obtained or intentionally misapplied, including the work of 14 of defendant’s subordinates who were public employees of the New York and New Jersey Port Authority.

IV.  The phrase “unjustifiable and wrongful,” as used in instruction to jury that “to intentionally misapply money or property means to intentionally use money or property of the Port Authority knowing that the use is unauthorized or unjustifiable or wrongful,” § 666, was not overbroad or ambiguous in trial for theft or bribery concerning programs receiving federal funds; other instruction in court’s charge foreclosed possibility that jury convicted defendants for lawful but imprudent conduct.

V.  The scope of statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States is limited to rights fairly warned of, having been made specific by the time of the charged conduct. 18 U.S.C.A. §§ 241, 242.  A due process right to intrastate travel was not a right that was fairly warned of in 2013, and thus defendants could not be convicted under statutes criminalizing violation or deprivation of any right or privilege secured by the Constitution or laws of the United States based on alleged violation of municipality's residents' right to intrastate travel in 2013. 

Circuit affirms denial of motion to suppress, but finds "possession in connection with another felony" enhancement applied in error

U.S. v. Hester, No. 16-3570, 2018 WL 6259314 (3d Cir. Nov. 30, 2018)

In this felon-in-possession of a firearm case, the Third Circuit affirmed the denial of a motion to suppress, but held that application of a sentencing enhancement for possession in connection with another felony was erroneous. 

Hester was a passenger in a car parked illegally in front of a corner store in Newark, New Jersey, at approximately 11:40 p.m.  Police observed the driver enter the corner store, which had a known history of narcotics sales.  When the driver returned to the car, a marked police car pulled up along the driver's side of the car, and an unmarked car pulled up behind it. The officers approached both sides of the car on foot, one approached the driver’s side window; three others approached and stood at the passenger's side of the vehicle.

The driver admitted that she did not have a driver’s license and that the car was not registered in her name.  Hester stated “We're good, officer. I can drive.” Hester then began to rise and exit the vehicle but, as he did so, one of the officers claimed to hear the sound of a gun hitting the floorboards, and another testified to seeing Hester drop a gun.  Hester attempted to run, but was apprehended. A gun was located at the foot of the passenger's seat. 

Hester was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  He moved to suppress the firearm, arguing that the police had seized him the moment that they parked, with lights flashing, alongside and behind the car, without reasonable suspicion. The district court denied the motion, concluding that the interaction with the police up until Hester's attempt to flee was a consensual encounter.  In the alternative, the District Court determined that, even if it assumed Hester had been seized when the officers boxed in the vehicle, such seizure was a Terry stop supported by reasonable suspicion because the car was illegally parked in front of a known narcotics front late at night in a high crime area.
Hester was convicted following a bench trial.  At sentencing, the parties disputed the applicability of a four-level enhancement for possession of a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B).  The Government sought the enhancement on the grounds that Hester's cousin had previously used the same firearm in an unrelated crime and had given it to Hester for disposal.  In support of this theory, the Government cited recordings of calls Hester made to relatives from jail in which he expressed regret that he had still been in possession of the firearm when he encountered the officers, having intended to dispose of it. The Government argued that this was tantamount to evidence tampering, a separate felony under New Jersey law. See N.J. Stat. Ann. § 2C:28-6.

The district court applied the enhancement, but then varied downward by four offense levels—the exact number added by the enhancement. Hester appealed both the denial of the motion to suppress and his sentence.

The Third Circuit held that the initial police contact in this case constituted a seizure rather than a consensual encounter, noting that when the driver reentered the idling parked car, it was no longer capable of simply driving away from the scene due to the change in circumstances signaled by the surrounding police cruisers.   Coupled with the subsequent directive to turn off the engine, the driver could not have felt free to drive away, and Hester likewise was not free to ignore the police presence and go about his business.  Further, the Court held that Hester submitted to the officers’ show of authority when he waited in the vehicle prior to and during questioning, before his momentary attempt to flee.  Finally, the Court found the officers had reasonable suspicion to detain the vehicle, including Hester, having seen “a vehicle illegally idling near a crosswalk, in front of a store with a known history of narcotics-related activity, close to midnight, in a high-crime area of Newark.” 

Regarding the Guidelines enhancement for use or possession “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), the Court concluded it did not apply for two reasons.  First, the government did not establish by a preponderance that Hester had committed New Jersey evidence tampering, which requires “alteration, loss, or destruction of the evidence itself.”  Second, the district court incorrectly interpreted the provision, as a matter of law, in finding that the possession itself occurred “in connection with” a subsequent felony offense, when there was no facilitation of a secondary offense – the two alleged offenses were coextensive.

Monday, October 15, 2018

Complete ban on computer and internet use not sufficiently tailored to the risks of the defendant and violated First Amendment norms.

In United States v. Holena, 2018 WL 4905748 (Oct. 10, 2018),, the Third Circuit vacated a total ban on computer and internet use as a special condition of supervision for a defendant who had been convicted of using the internet to entice a child to have sex.

Holena was originally sentenced to ten years imprisonment and lifetime supervision with the special conditions that he must: (1) get approval of Probation Officer before any internet use, (2) submit to regular searches of his computer and home, and (3) let the Probation Office install monitoring and filtering software on his computer. Holena twice violated supervision, first going online to update social-media profiles and answer emails, and then logging into Facebook without approval and lying about it. At the second revocation, the judge amended the special conditions to forbid possessing or using any computers, electronic communications devices, or electronic storage devices.  The Third Circuit agreed with Holena’s objection that the ban on computers was contradictory, more restrictive than necessary, and violated the First Amendment.

First, the ban on computers was contradictory: Holena was forbidden to possess a computer, but also had to seek approval from probation and install monitoring software. The Third Circuit rejected the government’s position that probation-officer-approval provision was an exception to the ban: due process requires fair warning/understandable conditions.

Second, the ban on computers was more restrictive than necessary. Courts consider four factors to determine if special conditions deprive a defendant of more liberty “than is reasonably necessary” to deter crime, protect the public, and rehabilitate the defendant: (1) the restriction’s length, (2) its scope, (3) “the defendant’s underlying conduct,” and (4) the proportion of the supervised-release restriction to the total restriction period (including prison). The fourth factor was given no weight here.

The lifetime duration of the blanket ban was presumptively excessive. The Court had trouble “imagin[ing] how [a defendant] could function in modern society given [a] lifetime ban” on computer use.

The scope of the computer and internet bans was too broad and not justified by the record. Under the least restrictive reading, Holena could not use any computer or cellphone without his Probation Officer’s approval, even with devices not connected to the internet and to do everyday tasks like “preparing a résumé or calling a friend for a ride.” Further, the Probation Officer had no guidance on approving internet use. On remand, the District Court should offer some categories of websites or a guiding principle on what is permissible, i.e., shopping, searching for jobs, news, maps, traffic, weather, websites where he will probably never encounter a child; and what is not permissible, i.e., social media, chat rooms, peer-to-peer file-sharing services, and any site where he could interact with a child. The District Court should also consider available filtering and monitoring software to determine if Holena can safely be allowed a smartphone, or if a non-internet-connected phone is necessary. Restrictions having nothing to do with preying on children are not tailored to Holena’s conduct.

Finally, the lack of tailoring also raises First Amendment concerns. Under Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (striking down law banning sex offenders from using social-media websites), blanket internet restrictions will rarely be tailored enough to pass constitutional muster because their “wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child.” On remand, the District Court must take care not to restrict Holena’s First Amendment rights more than reasonably necessary or appropriate to protect the public.

Wednesday, October 03, 2018

Third Circuit sets standard for granting an evidentiary hearing when moving for new trial based on newly discovered evidence and considers extent to which the Confrontation Clause entitles defendant to cross-examine government witnesses regarding cooperation agreements

A defendant's appeal after trial for drug trafficking provided the Third Circuit with the opportunity to clarify its limitations on cross-examination of government cooperators and its standard for granting an evidentiary hearing when a defendant moves for a new trial based on newly discovered evidence. In United States v. Noel, Appeal No. 14-2042 (3d Cir. Sept. 26, 2018), the defendant first argued that his Confrontation Clause rights were violated when the district court precluded him from questioning his cooperating codefendants on their specific sentencing exposure. Relying on prior precedent, the Third Circuit clarified that "there is no absolute right to inquire into the precise sentence a government witness might face absent his cooperation and and that a district court may limit the scope of cross-examination to more general inquiries about his expected benefits." The district court's limitation will be permissible under the Confrontation Clause unless the jury might have "received a significantly different impression of [the witness's] credibility" had it not been imposed. Whether a jury might have received such an impression is evaluated using the two-part test announced in United States v. Chandler, 326 F.3d 210, 219 (3d Cir. 2003), which asks: (1) whether the limitation “significantly inhibited [the defendant’s] effective exercise of her right to inquire into [the] witness’s ‘motivation in testifying’” and (2) if so, whether the limitation fell within “those ‘reasonable limits’ which a trial court, in due exercise of its discretion, has authority to establish.”

Here, the Third Circuit concluded that the single, narrow limitation imposed by the district court - precluding the defendant from inquiring about specific sentencing exposure, like mandatory minimums - fell comfortably within constitutional bounds. The defendant was permitted to explore the cooperation agreements, elicit information indicating that the codefendants faced "a considerable amount of time," and suggest that they were getting a significant benefit for their testimony.

Next, the Third Circuit considered whether the district court abused its discretion by denying defendant's motion for a new trial based on newly discovered evidence of juror misconduct without granting a hearing. The Court upheld the district court's decision, finding that the defendant failed to meet the two criteria necessary for granting a hearing on the motion. First, no hearing was warranted because the evidence was not newly discovered because it would have been discovered by reasonably diligent counsel if promptly investigated at the time of trial. The Court took this opportunity to clarify what standard district courts should use in determining whether counsel was sufficiently diligent. To satisfy the diligence standard, "counsel must conduct further inquiry once the circumstances alert her to the existence of additional information that has a reasonable possibility of proving material to the defense." Here, counsel was on notice before the problematic juror was ever impaneled of the existence of additional information that suggested a reasonable possibility of a conflict or bias based on the juror's responses at voir dire. Counsel could have, but did not, ask any additional questions or further investigate the juror. Accordingly, the evidence was not newly discovered and the district court did not err in denying the motion without a hearing.

Nor did the defendant meet the second criteria for a hearing because he failed to show “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred." The Third Circuit took the opportunity here to clarify what this showing requires. While the defendant need not provide literally incontrovertible evidence of juror misconduct, the evidence must still constitute “clear, strong, [and] substantial” evidence of a “specific, nonspeculative impropriety.” Conjecture is not enough. A district court does not abuse its discretion in denying a motion for a new trial without a hearing where the defendant “offers nothing more than speculation” of juror misconduct. Accordingly, the Court concluded that the district court did not abuse its discretion when it declined to hold an evidentiary hearing and denied defendant's motion for a new trial.

Sentence reduction relief unavailable where a statutory maximum displaces defendant's Guidelines range

Applying the Supreme Court's reasoning in Koons v. United States, 138 S.Ct. 1783 (2018), the Third Circuit, in United States v. Rivera-Cruz, Appeal No. 17-3448 (Sept. 24, 2018), ruled that a defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) where the statutory maximum sentence for his drug offense displaced his much higher Guidelines range. Relying on Koons, the Court found that Rivera-Cruz's sentence was not "based on" a Guidelines range where his Guidelines range of 324 to 405 months' imprisonment was set aside by the statutory maximum term of 240 months imprisonment. Having dropped out of the case, the displaced Guidelines range played no part in forming the basis of the district court's sentence, even where the district court explicitly referred to the initial Guidelines' calculation before announcing its sentencing decision. The Court found that the district court's reference to the original Guidelines range was made for the limited purpose of determining the number of offense levels by which to depart. The district court further specified that its reference to the Guidelines' range was done solely for the purpose of complying with Third Circuit precedent regarding the three-step sentencing process and not for purposes of reconsidering the range. Accordingly, the Court held that Rivera-Cruz did not qualify for a sentence reduction under § 3582(c)(2) because his sentence was not "based on" a Guidelines range.

Friday, August 31, 2018

Court upholds suppression based on Rodriguez

In United States v. Clark, 17-2739 the Court of Appeals held a traffic stop was impermissibly extended in violation of the Supreme Court's holding in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

In Clark the defendant was a passenger in a vehicle pulled over for several traffic violations, including driving without headlights at night.  The driver was using his mother's vehicle, who was not present.  The officer ran typical computer checks and determined the driver had several prior convictions for drug offenses.  The officer asked the driver questions about his criminal history, his whereabouts that evening, and to whom the vehicle was registered and where.  Although the driver could not find the registration card, he had his mother on the phone who, along with the driver, were trying to answer the officer's questions.  After some confusion the officer repeatedly told the pair he was asking these questions to determine if the driver was lying and continued to ask about his criminal history.  After the officer determined the driver had recently been released from prison he had him step out of the car to its rear where he began asking questions about his passenger, the defendant.  The officer then went to the passenger window and asked the same questions of the defendant - his answers about how long he's known the driver and where they'd been that night were inconsistent with those given by the driver.  The officer then observed an odor of marijuana from the passenger side and directed the defendant to step out for a pat down search.  At that point the defendant admitted he had a firearm in his waistband.  

Clark was indicted on a 922(g)(1) count and moved to suppress the firearm on the grounds the stop was impermissibly prolonged.  The District Court agreed.  Specifically, the District Court found the officers questions regarding the driver's criminal history, of which the officer already knew the answers based on his computerized checks, were not aimed at ascertaining it.  And that line of questioning prolonged the stop.  Further, it failed to find anything "suspicious" about the driver's behavior or "inappropriate."

The Court of Appeals upheld the District Court's findings.  In contrast to its recent opinion in United States v. Green, 897 F.3d 173 (3d. Cir. 2018), also a Fourth Amendment case involving a Rodriguez issue where a denial of suppression was upheld, the Court determined that not all police inquiries are alike.  In this case, inquiries about the driver's criminal history, which were aimed at determining if he was legally permitted to drive, was tied to the purpose of the stop or if the traffic stop had ended before that line of questioning began.  In this case, the Court found the officer's computerized checks verified information he gave which was the vehicle belonged to his mother.  Once the officer was able to confirm that information, the Court determined that was sufficient to demonstrate the driver had the authority to drive the vehicle and further questioning did nothing but prolong the stop.  

Of note, the Court of Appeals did not tackle how its opinion in Clark and the recent opinion in Green, which had different panels, reconcile with one another.  Both cases involved traffic violations with prolonged stops, involved driver's with criminal histories, and involved typical road-side questioning by police.

Monday, August 27, 2018

Court Rejects 2013 Precedent Granting Habeas Relief, Holds Confrontation Clause Not Violated

In Mitchell v. Superintendent Dallas SCI, No. 17-3118 (Aug. 23, 2018), the Court upholds the denial of relief to a habeas petitioner whose codefendant had prevailed on the very same claim in 2013. At issue was the admission of a third defendant’s out-of-court statements admitting his involvement in a robbery and murder for which all three were on trial, and claiming that the homicide was “the other two’s idea.” The statements were recounted by inmates to whom the third defendant reportedly spoke about the case in jail.

In Eley v. Ericson, 712 F.3d 837 (3d Cir. 2013), the Court determined that admitting the third defendant’s statements had violated codefendant Karim Eley’s Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968), which barred the admission at a joint trial of one defendant’s out-of-court statement inculpating both himself and another defendant. Several decades after Bruton, but still years before Eley, the Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause limits the admission only of “testimonial” hearsay, such as statements made to law enforcement officers seeking information about past events. The Commonwealth did not contend in Eley’s case that the third defendant’s statements to other inmates were not “testimonial” within the meaning of Crawford. Nor did the Court itself contemplate any such problem with Eley’s claim. It ordered that Eley be retried within 120 days or else released from custody.

But this precedent is of no help to codefendant Edward Mitchell, the Court now concludes: “[W]e are obliged to consider Crawford because it is a relevant precedent and the respondent squarely has raised the case even though we did not discuss Crawford when we granted relief to Eley.” The opinion notes that United States v. Berrios, 676 F.3d 118 (3d Cir. 2012), held Crawford to establish that the Confrontation Clause did not prohibit the introduction of surreptitiously recorded communications between two codefendants in a jail yard recalling their own and an additional defendant’s roles in the offense. The same was true in Mitchell's and Eley's case with respect to the third defendant's statements to other inmates. Accordingly, Mitchell could not show he “is in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), and was not entitled to habeas relief.

Convictions Affirmed in Prosecution that Took Down Philadelphia Traffic Court

In a decision resolving six consolidated appeals beginning with United States v. William Hird, No. 14-4754, the Court revisits the venerable question of what constitutes a scheme to obtain “money or property” within the meaning of the mail and wire fraud statutes at 18 U.S.C. § § 1341 and 1343. Holding a governmental entity’s lawful entitlement to collect fines and costs for traffic violations to qualify as “property” under the fraud statutes, the Court affirms.

The widely publicized prosecution began in 2013 with the indictment of five sitting and former judges of the Philadelphia Traffic Court, along with other defendants, for fixing tickets on the part of favored individuals. Several judges were acquitted of all fraud counts at trial, but two defendants pleaded guilty after preserving their right to appeal a denial of their motion to dismiss these counts as failing to state an offense. Affirming the motion's denial, the Third Circuit canvasses the line of precedent establishing that mail fraud and wire fraud are limited in scope to the protection of property rights. The Court ultimately foregrounds Pasquantino v. United States, 544 U.S. 349 (2005), which held that a scheme to evade import taxes on liquor smuggled into Canada supported conviction of federal wire fraud. Finding unrealized fines for traffic violations to be analogous to evaded taxes, the Third Circuit concludes that the indictment sufficiently charged a scheme to defraud the City of Philadelphia and Commonwealth of Pennsylvania of property within the cognizance of §§ 1341 and 1343. The fact that the favored individuals were never found guilty of a traffic violation did not foreclose prosecution because the very object of the scheme was to obviate judgments that would have imposed fines and costs.

The opinion also reviews the law governing perjury in violation of 18 U.S.C. § 1623, the only offense of which three of the traffic judges were found guilty, based on testimony they had given before a grand jury. On appeal, they contended the evidence was insufficient because the questions asked of them were fatally vague or their answers were literally true. Rejecting these arguments, the Court reaffirms that “precise questioning is imperative as a predicate for the offense of perjury,” but adds that on sufficiency challenges, “[o]ur review … is focused on glaring instances of vagueness or double-speak by the examiner” that “would mislead or confuse a witness into making a response that later becomes the basis of a perjury conviction.”

Thursday, August 23, 2018

'Serious Bodily Injury' Agg Assault Held Not to Qualify as ACCA Predicate

In United States v. Anthony Mayo, No. 16-4282 (Aug. 22, 2018), the Court holds that first-degree aggravated assault in violation of Section 2702(a)(1) of Pennsylvania’s Crimes Code does not qualify as a predicate “violent felony” for purposes of the 15-year mandatory minimum provided by the Armed Career Criminal Act.

Before Johnson v. United States, 135 S. Ct. 2551 (2015), the Pennsylvania assault offense was thought to qualify under the so-called “residual clause” of ACCA’s definitional provision, which looks to whether the elements of an offense ordinarily involve conduct presenting “a serious potential risk of physical injury to another.” Johnson having held the residual clause to be unconstitutionally vague, the Pennsylvania offense cannot qualify as a predicate unless it meets the ACCA’s alternative definition of a violent felony as an offense having as an element the use or threat of "physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i).

A person violates Section 2702(a)(1) if he causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to human life. Relying on authoritative Pennsylvania state precedent, Mayo concludes the offense does not necessarily involve the use or threat of physical force because a conviction may be obtained by proving culpable acts of omission such as failing to provide a child with food or medical care.

The Court rejects the government’s argument from United States v. Castleman, 134 S. Ct. 1405 (2014), which states that “‘bodily injury’ must result from ‘physical force.’” That decision, the Court explains, construed a different definitional provision and expressly reserved the question of whether the same analysis would apply to the ACCA. Furthermore, to hold aggravated assault as defined by Section 2702(a)(2) a violent felony would “conflate an act of omission with the use of force, something that Castleman, even if it were pertinent, does not support.”

The Court also distinguishes Chapman v. United States, 866 F.3d 129 (3d Cir. 2017), which concluded that the offense defined by 18 U.S.C. § 876(c), which proscribes mailing a communication containing a threat to injure the person of another, has the threat of force as an element. Mayo explains that while some offenses defined in terms of the causation of bodily injury “inherently involve the use or attempted use of ‘physical force,’ we have not said that bodily injury is always and only the result of physical force.” In the end, "because Pennsylvania aggravated assault under § 2702(a)(1) criminalizes certain acts of omission, it sweeps more broadly than the ACCA’s definition of ‘physical force.’”

Friday, June 22, 2018

Prosecutorial misconduct of systematically injecting inadmissible evidence into child pornography trial was plain but did not warrant reversal; application of obstruction of justice enhancement erroneous and warranted remand for resentencing, even where district court imposed a downward variance

United States v. WelshansAppeal No. 16-4106 (3d Cir. June 14, 2018), 2018 WL 2976804

Welshans challenged his conviction and sentence for distribution and possession of child pornography.

The Third Circuit rejected Welshans's argument that the prosecution violated his due process right to a fair trial by informing the jury that the files on his computer included deeply abhorrent videos and images of bestiality, bondage, and violent sexual assault of very young children.  At trial, the district court had admitted, with limiting instructions, two videos, without sound, which lasted two and a half minutes. The rest of the collection was excluded under Rule 403 and United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012). However, the government introduced exhibits which gave detailed paragraph-length descriptions of gruesome images and disturbing file names, and also elicited testimony from three agents that the images the jury saw were not the worst of what was recovered from Welshans. The government repeated these descriptions in closing argument. While the government is free to prove its case as it sees fit, its evidence remains subject to 403 limitations, whether the evidence is videos, as in Cunningham, or written or testimonial descriptions, as here. The Court agreed that the prosecutor’s misconduct was plain, but did not rise to the level of a constitutional violation. While the misconduct was pervasive, and any limiting instructions did not address the prejudicial descriptions, the misconduct did not so infect the trial with unfairness because it did not impact the jury’s credibility determination. The only contested issue in the case was whether Welshans knew there was child pornography on his computers, and his denial was overwhelmed by the evidence: 10,000 images and hundreds of videos on his computer with no explanation how they got there, as well as his conduct trying to get rid of those files while the police were en route.

The Third Circuit agreed that the obstruction enhancement was erroneously imposed. Application Note 4(d) to U.S.S.G. § 3C1.1 provides that not all acts of destroying or concealing evidence are obstruction, for example: “if such conduct occurred contemporaneously with arrest . . . it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it results in a material hindrance to the official investigation . . . .” Here, Welshans received a call from his aunt that police were on their way to his house and, in a panic, he began moving files on his computer into the recycling bin. Once law enforcement found the laptop, they removed its battery. The files were easily restored, and none were lost. The panel ruled that “material hindrance” requires an actual, negative effect, rejecting the government’s overly broad interpretation that anything that takes some “extra time” and might emerge as a trial issue is a material hindrance. (Also, the government only challenged this prong at oral argument, so the Court deemed it waived). Because the enhancement was applied in error, remand was necessary even though the district court had imposed a downward variance, because the Court could not “be sure” that the erroneous calculation did not affect the sentence imposed. Judge Fuentes dissented on the sentencing reversal, finding that contemporaneous should be more strictly defined as conduct occurring “just prior to arrest,” and conduct that occurred 40 minutes before agents arrived was not “just prior.” 

Second-degree aggravated assault with a deadly weapon (Pa) is categorically a crime of violence based on the elements clause of the career offender guideline.

United States v. RamosAppeal No. 17-2720 (3d Cir. June 15, 2018), 2018 WL 2994410

On the government’s appeal, the Third Circuit found that second-degree aggravated assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), has as an element “the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). Pennsylvania’s aggravated assault statute is divisible because it sets forth two alternate degrees of the offense and, within those degrees, the subsections “criminalize different conduct and set[ ] forth different (albeit overlapping) elements.” Thus, because the statute is divisible, the Court was able to consult a limited set of extra-statutory materials to establish Ramos's offense of conviction with certainty: second-degree aggravated assault with a deadly weapon. The minimum conduct sufficient to sustain that conviction was attempting to cause another person to experience substantial pain with a device capable of causing serious bodily injury. The Court concluded, “as a practical and legal matter,” an offender can "only do so by attempting to use physical force against another person.” (citing United States v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017)). The Third Circuit reversed the district court’s finding that Ramos was not a career offender, and remanded for resentencing.

Tuesday, June 05, 2018

Generic description of suspect sufficient to justify stop when analyzed under totality of the circumstances

In United States v. Foster, Appeal Nos. 16-3650 & 16-4225 (3d Cir. May 30, 2018), co-defendants challenged their convictions and sentences for being felons in possession of firearms. On February 5, 2015, a local barbershop employee called 911 to report two suspicious black males sitting in a Honda Accord in the shopping plaza's parking lot. When police arrived, the Accord promptly left the parking lot. The barbershop employee provided police with a picture of the Accord and its license plate. After running the plate, police learned that the Accord was reported stolen in an armed robbery. An email alert was sent to local law enforcement officers alerting them to the stolen vehicle and attaching the picture. The following morning, a police officer on routine patrol observed the Honda Accord sitting in the plaza parking lot with two black males inside. The officer left the lot briefly to call for backup and position himself to make a safe stop. When he returned, one of the men was standing outside the car and the other man was no longer in or near the car. The man standing next to the car, Defendant Foster, was fled from police, but was quickly apprehended and a gun was recovered from his person.

The second man, Defendant Payton, began walking away from the plaza. Another officer responded to a radio call regarding the Accord's missing second occupant. At the time he searching for the suspect around the plaza, the officer knew that he was looking for a black male and that two potentially armed and dangerous black males had been observed in a stolen Honda Accord the previous day. Within six minutes of the radio call, the officer observed Payton, a black man, walking calmly and leisurely along a road away from the plaza. The officer trailed Payton for about five minutes and radioed for a more detailed description of the suspect. Eventually, after seeing no other pedestrians in the area matching the general description of the suspect, the officer stopped and arrested Payton. A search of the Accord produced a rifle, duct tape, and gloves. 

(1) Reasonable Suspicion to Stop Payton

On appeal, Payton challenged the district court's decision denying his motion to suppress evidence discovered as a result of his arrest because the only identifying information available before he was seized was that a black male had fled the plaza parking lot. The Third Circuit rejected this challenge, holding that the district court properly considered the totality of the circumstances known to the arresting officer combined with his 14 years' experience as a police officer in finding reasonable suspicion for the stop. While the Court acknowledged that the general description of the suspect, viewed in isolation, would not support a finding of reasonable suspicion. But the Court would not ignore the context of the stop. Payton was observed within six minutes of the radio call walking less than 2/10 of a mile away from the plaza and the stolen car. No one else matching the description of the second occupant was observed anywhere in the vicinity. Furthermore, the arresting officer had more than 14 years experience, was familiar with the area, and knew from experience that it was unusual to see an unknown pedestrian walking down that stretch of road. Based on all these factors, the Court upheld the district court's finding of reasonable suspicion.

(2) Introduction of Barbershop Employees' Testimony

The Third Circuit also upheld the district court's decision to allow the introduction of the barbershop employees' testimony regarding their observations of suspicious behavior the day before the arrest. The government identified a permissible non-propensity purpose for admitting the testimony - that it was relevant to establish motive to rob the bank or jewelry store in the plaza because it showed the defendants "casing" the businesses. The evidence was relevant to the motive theory and not unduly prejudicial because it directly rebutted the defendants' own arguments regarding motive.

(3) Sufficient Evidence Supported Constructive Possession

Payton argued that the evidence was insufficient to support constructive possession of the rifle recovered from the Accord. The Third Circuit affirmed the jury's guilty verdict, finding that the evidence demonstrated both Payton's proximity to the rifle and a plausible motive for Payton to possess the gun - armed robbery. The evidence also established that Payton was in the driver's seat of the Accord on the day of his arrest. Finally, Payton's own evasive conduct - fleeing the scene and providing false identification information upon arrested - further supported a finding that Payton was connected to the rifle. 

(4) Sentencing Enhancements

The Third Circuit also upheld two sentencing enhancements applied by the district court because the defendants were unable to point to anything in the record disputing the accuracy of the factual findings relied upon by the district court in applying the enhancements.

Government's failure to file motion for reconsideration of suppression ruling within 30 days deprived Third Circuit of jurisdiction over interlocutory appeal

In United States v. Kalb, Appeal No. 17-1333 (3d Cir. May 31, 2018), the Third Circuit considered whether it had jurisdiction to hear the Government's interlocutory appeal under 18 U.S.C. § 3731 where the Government filed a motion for reconsideration of a suppression ruling after the 30-day time period for filing an appeal under § 3731. Defendant Kalb successfully argued for suppression of evidence obtained from him after police stopped his vehicle. The district court granted Kalb's motion to suppress on October 21, 2016 and filed a written opinion three days later. On November 29, 2016, the government filed a motion to reconsider. The district court denied the government's motion to reconsider on the merits, rejecting Kalb's argument that the government's motion for reconsideration was untimely because the government sought leave to review the transcript of the suppression hearing within the 30-day period.

Typically, the 30-day appeal period under § 3731 begins when a suppression order is entered on the docket. If the government timely seeks reconsideration of the order, however, the order is rendered non-final until the court decides the motion for reconsideration. The 30-day appeal period runs from an order denying a timely motion for reconsideration. On appeal, the Third Circuit concluded that the 30-day limitation period for filing an appeal under § 3731 is jurisdictional. It further concluded that the government must file a motion for reconsideration within § 3731's 30-day time period for the motion to keep the 30-day appeal period from expiring. Here, because the government's motion for reconsideration was not filed until the 30-day appeal period had elapsed, the suppression order remained final and the Court lacked jurisdiction over the government's appeal of the district court's suppression order.

Wednesday, April 04, 2018

Third Circuit Upholds Application of Sentencing Enhancements for Leadership Role and Conspiracy Relocation in Bank and Wire Fraud Conspiracy

In United States v. Thung Van Huynh, 884 F.3d 160 (3d Cir., March 6, 2018), Defendant pled guilty to participating in a bank and wire fraud conspiracy to purchase luxury wristwatches. Specifically, Defendant admitted to purchasing stolen identification and credit reporting information from prospective car buyers in order to create counterfeit driver’s licenses and credit cards. Defendant then gave the counterfeit driver’s licenses and credit cards to his co-conspirators so that they could obtain lines of credit at several financial institutions. The co-conspirators used the lines of credit to purchase the wristwatches. Defendant then sold the wristwatches to a fence in California for cash, which he used to pay his co-conspirators for their services and to cover other expenses of the fraudulent scheme.

In the plea agreement, the government reserved the right to seek an enhancement for Defendant’s leadership role under U.S.S.G. ' 3B1.1(a). However, the plea agreement did not discuss the application of the conspiracy relocation enhancement under U.S.S.G. '' 2B1.1(b)(10). Nonetheless, the plea agreement expressly stated that the government was not restricted in responding to the sentencing court’s questions regarding the application of any sentencing guideline.

The probation office concluded that these two enhancements applied, and the sentencing court agreed. Specifically, the sentencing court concluded that Defendant’s fraudulent scheme, involving several co-conspirators who facilitated or actually made purchases at dozens of jewelry stores across 16 states, was “extensive.”

Defendant challenged the application of both of these enhancements. In reference to the relocation enhancement, Defendant claimed that he did not move his fraudulent scheme from one jurisdiction to another in order to evade law enforcement officials, but merely operated the scheme in multiple locations. In reference to the leadership enhancement, Defendant claimed that he was an equal partner with another co-conspirator, and that he shared the proceeds of the scheme equally with the other co-conspirators. He also claimed that he did not exercise decision-making authority over the co-conspirators or the conspiracy’s profits.

The Third Circuit ultimately affirmed the sentence, concluding that the sentencing court did not clearly err when it applied both of the enhancements. The court ruled that the relocation enhancement was properly applied because Defendant targeted stores far from his home in California, primarily on the East Coast.  Defendant himself was stopped by law enforcement officials in Michigan and Texas while attempting to purchase wristwatches. Defendant also never targeted the same store twice, except for a single instance.

The Third Circuit also ruled that the leadership enhancement was properly applied, due to the “overwhelming evidence”  of Defendant’s “singular leadership role.” The evidence presented established that Defendant recruited the co-conspirators, obtained the supplies necessary for them to execute the scheme, identified the targeted stores, made the travel arrangements, and controlled the scheme’s finances.  

Defendant also claimed that the government had breached the plea agreement by failing to object to the sentencing court’s application of the relocation enhancement. The Third Circuit also ruled that the government did not breach the plea agreement because the language included in the agreement allowed the government fully answer any questions posed by the sentencing court regarding the application of the guidelines. Consequently, the plea agreement did not require the government to affirmatively object to the application of any sentencing guideline. In fact, when questioned by the court during the sentencing hearing, the government agreed with Defendant that the relocation enhancement did not apply.