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.

The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

              In United States v. Packer , 83 F.4th 193 (3d Cir. Sept. 26, 2023), , the ...