Friday, June 28, 2019

Court of Appeals joins eight other Circuit Courts in finding legal innocence to be a valid basis for motion to withdraw guilty plea. But in doing so, affirms denial of motion because there was no credible evidence presented of innocence. Assertions alone are insufficient.

In United States v. James, No. 18-2569 (June 27, 2019), the Court of Appeals, through an opinion by Judge Jordan, affirmed the denial of defendant's motion to withdraw his guilty plea. 

The defendant was charged with two drug counts.  Pursuant to a plea agreement he entered a guilty plea.  During the colloquy, it was discussed that he had a third grade education, but also that he could read and write.  Months after the plea hearing he filed a pro-se motion to dismiss counsel for ineffectiveness.  In it, he argued he pled guilty to a crime he did not commit because 1) he was afraid  the judge and jury would not believe he was innocent; 2) his lawyer told him the judge was corrupt; 3) his lawyer did not explain the plea agreement; and 4) he did not understand the plea agreement due to his education level.  In response to the motion, defense counsel withdrew.  New counsel filed a motion to withdraw guilty plea but added it should be granted because the defendant was entrapped.  The district court found the defendant failed to demonstrate factual innocence, that his assertion of innocence alone was insufficient.  The court also found that an entrapment defense was an argument of legal innocence, not factual innocence - that only claims of factual innocence should be considered in this context.  The motion was denied and the defendant was sentenced to prison.

Preliminarily, the Court of Appeals considered the merits of the appeal despite an appeal waiver in the plea agreement - the language of waiver prohibited appealing a sentence but did not address appealing a conviction.  On appeal, the defendant first argued a claim of legal innocence is sufficient to withdraw a guilty plea.  Second, the defendant argued that the district court abused its discretion in weighing the withdrawal factors - i.e. "(1) whether the defendant asserts his innocence; (2) the strength of the defendant’s reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal."

As for his first argument, the Court of Appeals agreed that legal innocence is a basis to withdraw a guilty plea.  In doing so, the Court joined eight other Circuit Courts who ruled similarly.  It found,     "[i]f a defendant is not legally culpable, it stands to reason that he should be able to withdraw his guilty plea before sentencing because he is exempt from any punishment for the alleged acts constituting the crime, regardless of whether he committed them."  The Court continued however, that the defendant's assertion of entrapment, without factual support, was insufficient - that the defendant had to "present a credible claim of legal innocence."  So while the Court of Appeals found the district court's finding legally incorrect, they also found it to be harmless. 

As for his second argument, the defendant gave three reasons why he should have been allowed to withdraw his guilty plea.  First, he felt threatened and under duress if he didn't take the plea.  Second, his plea was not entered knowingly.  Third, his counsel was ineffective.  The Court of Appeals addressed each argument individually and found either they were assertions without factual support or were contradicted by the transcript of his guilty plea hearing.  Again, the Court of Appeals found the denial of the motion to withdraw was therefore within the district court's discretion.

The panel was Smith, Jordan, and Rendell.

Wednesday, June 26, 2019

Officer's pre-Miranda comment to defendant that his girlfriend would also be charged criminally was not the functional equivalent of interrogation which would warrant suppression of defendant's inculpatory response.

In United States v. Tyrone Greene, (No.18-2923)(June 25, 2019) the Court of Appeals through an opinion by Judge Hardiman affirmed the denial of the defendant's motion to suppression of evidence.

Greene and his girlfriend driving a van which was stopped for operating without headlights on.  When stopped the driver, Greene's girlfriend, could not produce a valid driver's license, proof of insurance, nor vehicle registration.  While speaking to her the officer smelled unburnt marijuana.  Then Greene acted "suspiciously" - he stood up and sat down in the passenger seat as if he was going to exit the vehicle.  He also reached for his waistband.  The officer removed him from the vehicle and patted him down.  When he did so the officer immediately recognized a package of marijuana based on plain feel alone, with no manipulation.  Greene was then placed under arrest, the van was searched, and found bullets were found.  Greene, was then searched again because he walking "unusually."  A firearm was recovered from him. At the station, the officer remarked that Greene's girlfriend would be charged as well for traffic and drug violations.  Greene then said he would "take the hit" for the gun and bullets so his girlfriend could be spared.

Greene was indicted on 922(g)(1).  Before trial, he moved to suppress both the seizure of the gun and bullets as well as his inculpatory statement.  The opinion focused its analysis on the Miranda issue only.  In that respect, Greene argued the officer's comment about his girlfriend's criminal exposure was the functional equivalent of an interrogated done pre-Miranda to elicit his statement.  In effect the officer's statement was coercive and warranted suppression.  The Court of Appeals disagreed, finding the officer's remark was not the functional equivalent of an interrogation, that Greene's response to the comment was unforeseeable, and it was gratuitous.  The Court also noted no  evidence that Greene was upset or overwrought or that the circumstances created coercive influence on him.  The Court affirmed the district court's denial.

As for the second suppression argument related to the seizure of the gun and bullets, the Court quickly dismissed based on the plain feel doctrine.

The panel was Hardiman, Porter, and Cowen.

Tuesday, June 25, 2019

Mandatory Consecutive Sentence for Aggravated Identity Theft Does Not Foreclose Enhancement of Underlying Sentence for Use of Device-Making Equipment in Stealing IDs

In United States v. A.M., No. 18-1120 (June 20, 2019), the Court holds that defendants subject to a mandatory two-year prison sentence for aggravated identity theft may still face enhancement of their Sentencing Guidelines range on other counts based on conduct relating to the identity theft.

By means of skimming devices and “PIN-pad overlays,” appellant A.M. captured victims’ account information and PINs from ATMs and then used the information to make counterfeit debit cards that allowed him to buy goods and withdraw cash. Following his indictment, he pled guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. The latter statute mandates a two-year consecutive sentence for stealing a “means of identification of another person” during and in relation to a range of enumerated federal offenses, including bank fraud. Commentary to the applicable sentencing guideline directs that in light of the consecutive sentence, the range on the underlying offense should be calculated without application of “any specific offense characteristic for the transfer, possession, or use of a means of identification.”  U.S.S.G. § 2B1.6 cmt. n.2.

Citing the commentary, A.M. argued that his sentencing range had been miscalculated on the bank fraud count by application of a two-level enhancement for the use of device-making equipment to create the counterfeit debit cards. See U.S.S.G. § 2B1.1(b)(11)(A)(i). The Court disagrees, reasoning that “using device-making equipment is different from possessing, transferring, or using ‘a means of identification.’” While such “equipment can be used to copy a means of identification,” it is “not itself a means of identification. The Guidelines bar only enhancements for using the latter.” Nor does the Court find persuasive A.M.’s argument that application of the enhancement punishes him twice for the same conduct. “His aggravated-identity-theft sentence punishes his use of customers’ stolen PINs and account numbers; his bank-fraud-sentence enhancement punishes his using equipment to make fake debit cards with that stolen information.” Citing cases from four circuits, the Court states that all are in accord with its construction.

Separately, the Court rejects A.M.’s contention that the district court erred in refusing to depart below the two-year mandatory minimum provided by 18 U.S.C. §1028A. While A.M. asserted that the government breached a plea agreement in declining to move for a downward departure pursuant to 18 U.S.C. § 3553(e), the Court reads the plea agreement not to have obligated the government to do so. Nor did the government’s motion for a Guidelines departure pursuant to U.S.S.G. § 5K1.1 authorize a sentence below the statutory minimum.

Monday, May 20, 2019

Sixth Amendment Speedy Trial Right not Triggered by Inmate’s Placement in Administrative Segregation for Investigation of New Crime

In United States v. James Bailey-Snyder, No. 18-1601 (3d Cir., May 3, 2019), Defendant, an inmate at FCI Schuylkill, was under investigation for weapon possession at the prison. During a search, prison guards discovered a seven-inch shank on Defendant’s person. While the FBI investigated the matter, prison officials placed Defendant in the Special Housing Unit (“SHU”).  Defendant was indicted ten months later for one count of possession of a prohibited object in prison. After several requests for filing extensions, Defendant filed a motion to dismiss the indictment based on violation of his constitutional and statutory speedy trial rights. Specifically, Defendant argued that the ten-month period between his placement in the SHU and the filing of the indictment was an unreasonable pre-indictment delay. The district court denied Defendant’s motion, ruling that placement in the SHU is not an arrest or accusation that would trigger the Speedy Trial clock. The Third Circuit agreed. In a matter of first impression, the Third Circuit ruled that an individual’s speedy trial rights under both the Sixth Amendment and 18 U.S.C. § 3161 do not attach to the period prior to arrest. The court determined that placement in the SHU was not an arrest, but was instead an administrative segregation administered under the policies and procedures of the BOP. As a result, Defendant’s proper recourse was submit an administrative challenge to the BOP.

Defendant also accused the government’s attorney of improper vouching. During closing arguments, the prosecutor attempted to rebut defense counsel’s challenge to the credibility of the two prison guards who had searched Defendant. Specifically, the prosecutor stated that it was conjecture for defense counsel to claim that the prison guards would risk their livelihoods to frame Defendant. Defense counsel objected to the statement, arguing that the prosecutor was attempting to argue facts that were not in evidence. The trial court overruled defense counsel’s objection. Citing United States v. Weatherly, 525 F.3d 265 (3d Cir. 2008), the Third Circuit ruled that the prosecutor’s statement was not improper vouching, but was merely a commonsense conclusion which did not require explicit supporting evidence on the record. The Third Circuit also noted that even if the prosecutor’s statement was deemed improper vouching, it was nonetheless excusable because it was a reasonable response to defense counsel’s allegation of perjury.

The Third Circuit ultimately ruled that there was no cumulative error and affirmed Defendant’s conviction and sentence.

Hobbs Act Robbery is Crime of Violence under 18 U.S.C. § 924(c), but Not Crime of Violence under the Career-Offender Guideline U.S.S.G. § 4B1.2

In United States v. Raul Rodriguez, Nos. 18-1606 and 18-1664 (3d Cir., May 1, 2019), Defendant pled guilty one count each of Hobbs Act robbery and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 1951(a) and 924(c). The district court ruled that the robbery was a crime of violence under § 924(c), but it was not a crime of violence under the career-offender guideline, U.S.S.G. § 4B1.2. The Third Circuit affirmed the district court’s decision. Citing United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), the court reiterated that, when a firearm is brandished during a Hobbs Act robbery, the robbery constitutes a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A). However, the court ruled that Hobbs Act robbery is not a crime of violence under the career-offender guideline. The Third Circuit initially concluded that Hobbs Act robbery did not qualify as a crime of violence under the elements clause of § 4B1.2(a)(1) because the statutory definition of the offense did not contain the requisite elements. The Third Circuit further determined that Hobbs Act robbery did not qualify as a crime of violence under the enumerated-offense clause of § 4B1.2(a)(2) because its statutory definition was broader than the two most closely-related enumerated offenses, namely robbery and extortion. Specifically, the court determined that the statutory definition of Hobbs Act robbery was broader than generic robbery and extortion as narrowly defined in the guidelines because the latter prohibit crimes involving force against persons, while Hobbs Act robbery prohibited crimes involving force against persons or property.

Note that this decision is unpublished, but its reasoning is persuasive and the briefing in the case may be consulted when litigating this issue before future panels of the Court of Appeals.

Tuesday, April 02, 2019

Drug Quantity Proof / Evidence at Sentencing

In United States v. Rowe, No. 18-1192 (Apr. 2, 2019), the Third Circuit vacated the defendant's conviction for distribution and possession with intent to distribute 1,000 grams of heroin because the evidence at trial was insufficient to establish the requisite drug quantity.  The Court also vacated the defendant's sentence because the evidence presented at sentencing was unreliable.  On remand, the the Court instructed that the district court should enter a judgment of conviction for possession with intent to distribute 100 grams of heroin and resentence the defendant without the government being permitted to introduce additional evidence on drug quantity.

The case began when the defendant was charged with distribution and possession with intent to distribute 1,000 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).  Under § 841(b)(1)(A)(i), an offense involving 1,000 grams or more of heroin is punishable by 10 years to life, whereas under § 841(b)(1)(B)(i), an offense involving 100 grams or more of heroin is punishable by 5 to 40 years.  Because the weight involved in the crime increases the statutory penalty, it is an element of the offense that must be proved to a jury beyond a reasonable doubt.  Here, the defendant conceded to distributing heroin, but claimed he had only distributed 200 grams, so the trial focused on the precise quantity involved in the crime. 

To prove its case at trial, the government relied on three key pieces of evidence and testimony: (1) a confidential informant who said that over the course of several months the defendant sold him over 1,000 grams of heroin in small amounts, and who also said he saw the defendant with numbered packages and a ledger of drug sales, (2) a DEA special agent who used his experience to analyze the defendant's drug ledger and to explain that a dealer who sells 200 grams of heroin likely has access to multi-kilogram quantities, and (3) the defendant's drug ledger.  At the close of trial, the district court instructed the jury that it had to decide "whether the government had proved beyond a reasonable doubt that [the defendant] distributed 1 kilogram or more of heroin."  The jury had the option of returning a conviction on the 1,000 gram charge, and also to return a verdict on a lesser-included 1000 gram charge.  It ultimately returned a guilty verdict for both drug weights.

At sentencing, the district court relied on a pre-sentence report calculating a total drug weight of at least 10 kilograms of heroin, resulting in a base offense level of 34 under U.S.S.G. § 2D1.1(c)(3).  This determination was based on a statement the defendant was alleged to have made at the time of his arrest, yet evidence of that statement had been excluded at trial and the government presented no evidence regarding the statement at sentencing.

On appeal, the defendant argued that there was not sufficient evidence to support his conviction for distributing or possessing with intent to distribute 1,000 grams of heroin, and that the district court was wrong to rely on the drug calculation in the PSR.  The Court agreed with both arguments.

First, the Court held that the evidence was insufficient to support the 1,000 gram verdict because "the Government did not present evidence of a single distribution involving 1,000 grams or more of heroin."  Instead, "the prosecutor mistakenly believed that distribution of 1,000 grams could be proven by combining several distributions that, in total, involved 1,00 grams of heroin."  The Court rejected the government's argument that the evidence was still sufficient to support a conviction for possession with intent to distribute 1,000 grams, explaining that "possession of 1,000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1,000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1,000 grams."  The Court observed that while the evidence showed that the defendant had distributed a total of 1,000 grams of heroin over the course of several months, it did not establish that he ever possessed or distributed 1,000 grams at any one time.  The Court therefore vacated the 1,000 gram conviction and remanded for the district court to enter judgment solely on the 100 gram verdict.

Second, the Court held that the district court had erred in relying on the PSR's drug calculation, which incorporated an alleged admission by the defendant for which the government had never presented any evidence.  Because the government typically gets only one opportunity to present evidence at sentencing, absent a compelling reason otherwise, the Court instructed that "the government will not be permitted to introduce additional evidence regarding drug quantity" at resentencing.

Saturday, March 09, 2019

Jurisdiction of the Virgin Island District Courts / Limitation on cross based on Rule 403

Ayala was convicted in the District Court of the Virgin Islands of federal Hobbs Act robbery and conspiracy, use of a firearm during the commission of the crime of violence, and Virgin Islands first degree robbery.  At trial, the evidence showed that on August 19, 2015, a jewelry store on St. Thomas, U.S.V.I. was robbed at gunpoint by co-defendants Thomas and Emmanuel. Another co-defendant, Miller, waited outside in a getaway car.  Ayala was in the front passenger seat.  Thomas, Emmanuel, and Miller testified about Ayala's role in the robbery: Ayala paid for their plane tickets from St. Croix to St. Thomas; reserved and paid for the hotel rooms; and, picked up and paid for the rental car.  After the robbery, she paid Thomas and Emmanuel for their work. 

At trial, Ayala raised the affirmative defense of duress.  She argued that two other men, Bogus a/k/a Bogie (“B”) and Waza a/k/a Muwaza (“W”), told her to participate in the robbery and that she only agreed because she feared for her life. Additionally, she feared for her brother, who was W’s cellmate.  During cross-examination, Ayala was permitted to question the government witnesses about B and W, but not their reputations for violence, in support of her defense based on Rule 403. 

Ayala raised five issues on appeal which the Circuit ruled on as follows:

1. Pursuant to congressional grants of jurisdiction in 48 U.S.C. § 1612(a) and 18 U.S.C. § 3241, the District Court of the Virgin Islands can adjudicate federal criminal offenses in cases in which the United States is a party;

2. The Court further held that a judge of the District Court of the Virgin Islands may serve past the expiration of the judge’s ten-year term, until the President nominates and the Senate confirms a successor, and the fact that the term of the presiding judge had expired did not render the convictions invalid;

3. Next, the Court addressed whether convictions for both Hobbs Act robbery and Virgin Islands first-degree robbery violated the Double Jeopardy Clause.  Because the federal charge contains an interstate commerce element, whereas the VI robbery offense requires the display or threat to use a dangerous weapon, each requires proof of an element the other does not, and therefore meets the Blockburger standard and no violation of the Double Jeopardy clause.

4.  Ayala challenged the court’s limitation on her ability to cross-examine the government's witnesses about B’s and W’s reputations for violence, given that such a line of questioning went to the heart of her affirmative defense of duress—that she only committed the crime because she believed B and W would hurt her or her family if she did not, and that her fear was objectively reasonable.  The trial court gave little explanation other than citing Rule 403, and did not put any balancing on the record. 

The Court here elected to conduct its own balancing.  At trial, although not permitted to ask government witnesses (including law enforcement witnesses) about B’s and W’s reputations for violence, Ayala was permitted to ask the witnesses if they knew B or W, whether the witness was afraid of them, and how that fear affected their decisions.  Miller and Emmanuel both testified on cross-examination about their fear of B and W, and Miller admitting that he did not want to even say B’s name out loud out of fear.  Emmanuel was able to testify on cross-examination that he turned himself in to the police after the robbery because he “felt threatened big-time” by B and W, that B and W are “both dangerous dudes” and that he was afraid of their “reach” and the violence they could do to his family and him.  Thomas testified that he was not afraid of B or W.

Although “troubled” that the trial court did not provide on-the-record balancing, the Court was satisfied that it had not abused its discretion in limiting cross-examination.  The Court explained that Ayala’s duress defense did not depend on B’s and W’s past crimes or reputations as they were not on trial and the probative value was slight to none.  “What Ayala sought to prove—namely, that she faced an immediate threat of death or serious bodily injury; her claimed fear was well-grounded; this immediate threat directly caused her criminal acts; and she did not recklessly place herself in the situation,  . . . had nothing to do with B's and W's reputations.”  Furthermore, this narrow limitation on cross-examination did not hinder Ayala from eliciting the evidence that went to her duress defense, as the jury was permitted to hear whether her co-conspirators were afraid of B and W, and how that fear affected their actions.

5.  Finally, the Court held that the shackling of Ayala during her non-jury sentencing was not an abuse of discretion.

United States v. Ayala, No. 17-2422 (March 6, 2019)

Excludable time for competency determination under STA does not automatically include delay for transportation beyond ten days; delay in transport found unreasonable and therefore not excludable.

On January 28, 2014, Williams was charged by information with federal and VI firearms offenses.  Prior to arraignment, Williams's counsel filed a motion for a hearing to determine Williams’s mental competency pursuant to 18 U.S.C. § 4241(a).  The Government subsequently filed its own motion for a hearing to determine competency.  On June 11, 2014.  The court ordered that Williams be transported to the Federal Medical Center in Butner.  The following day—June 12, 2014—a grand jury returned an Indictment.  On June 18, 2014, Williams was arraigned with respect to the charges contained in the Indictment.

Although the order was issued on June 11, 2014, Williams did not arrive at FMC Butner until July 29, 2014.  On November 6, 2014, following receipt of the report from Butner, the court entered an order committing Williams to the custody of the United States Attorney General pursuant to 18 U.S.C. § 4241(d).  On October 9, 2015, following another hearing, Williams was deemed competent and the court indicated that it would set a date for trial.  Following a period of inactivity, on December 2, 2015, the Government ended a fifty-three-day lapse in activity by filing a motion in limine. 

On December 18, 2015, Williams filed a motion to dismiss the Indictment (the “First Motion to Dismiss”), based on the the Speedy Trial Act.   What ensued were more filings and lengthy periods of inaction during which the District Court took no further action with respect to Williams's First Motion to Dismiss.  On July 15, 2016, Williams filed a second motion to dismiss the Indictment.  After nearly three months of further inaction, Williams filed a writ of mandamus in the Circuit.  This prompted the district court, on October 24, 2016, to set a trial date.  On October 26, 2016, the District Court, in an order that did not include written reasons, denied Williams's Second Motion to Dismiss and denied Williams's First Motion to Dismiss as moot.

Williams subsequently pleaded guilty to one count of possessing a firearm within 1,000 feet of a school zone, but reserved the right to appeal the speedy trial violation.  The District Court sentenced Williams to a term of “time served” and a one-year period of supervised release.

Relevant to this decision is only the period of transport from June 11, 2014 to July 29, 2014, and the interaction of two Speedy Trial Act provisions which exclude from the 70-day clock: (1) delay resulting from any proceeding, including examinations, to determine mental competency, § 3161(h)(1)(F), and (2) delay resulting from transportation to and from places of examination, “except that any time consumed in excess of ten days from the date an order ... directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable.” See § 3161(h)(1)(F).

Here the government conceded that at least fifty-three days had elapsed from the seventy-day speedy trial clock.  The issue then was whether, or to what extent, the time between  June 11, 2014—when the District Court ordered that Williams be transported to FMC Butner to undergo a psychological examination—and July 29, 2014—when Williams arrived at FMC Butner—was excludable for purposes of the seventy-day speedy trial clock.

The Circuit held first that periods of unreasonable delay of more than ten days in the transport of a defendant to the site of a psychological examination are non-excludable, regardless of the fact that they occur within the period of excludable delay under § 3161(h)(1)(A), which begins when a party moves for, or the court sua sponte orders, a competency determination and continues at least until a competency hearing is held.  This is because “to exclude any and all periods of delay in transporting a defendant to the site of a psychological examination—regardless of whether such delay is in excess of ten days and otherwise unreasonable—would read section 3161(h)(1)(F) out of the statute.” 

Next, the Court turned to the extent to which the period of delay in transporting Williams to FMC Butner was excludable.   The district court entered its order for transport for a psychological examination on June 11, 2014, thus the period through June 21, 2014—ten days—was automatically excludable.  See 18 U.S.C. § 3161(h)(1)(F).  The extra thirty-seven-day period between June 21, 2014, and July 29, 2014, when Williams arrived at FMC Butner, was deemed to be presumptively unreasonable and, therefore, presumptively non-excludable.  The Court found further that the explanation for the delay—that the Marshals Service did not receive the order until July 9, 2014, attributable only to negligence on the part of the government or the district court—to be “patently unreasonable and non-excludable.”  Given this finding, a total of ninety days of non-excludable time had elapsed prior to the commencement of a trial, and Williams's rights under the Speedy Trial Act were violated.

Finally, the district court had sentenced Williams, who had been detained for over three-and-a-half years, to “time served.”  Williams had also completed his one-year term of supervised release.  Thus, no purpose would be served by retrying Williams, and dismissal without prejudice in this case would be contrary to the administration of justice.  The Court remanded to the District Court with instructions to dismiss the Indictment with prejudice.

United States v. Williams, No. 17-3422 (March 5, 2019)

Friday, March 08, 2019

District Court’s sua sponte continuance did not validly exclude time under STA

Following his conviction for wire fraud and aggravated identity theft, Reese appealed his conviction, in part based on a claim that his trial took place beyond the 70-day Speedy Trial Act time limit.  The Circuit here agreed and vacated the -conviction.  United States v. Reese, No. 17-2484 (March 5, 2019).

Prior to trial in Reese’s case, after a period of 50 non-excludable days had elapsed, the district court held a pretrial conference.  At this November 10, 2016, hearing the district court opened by stating that, in order accommodate the court’s calendar, trial was to be moved to February 22nd.  Reese’s counsel responded “February 22nd will work for me. I'm just really bad in December and January myself. February opens up.” There was no further discussion of postponing trial or the need to exclude time under the Speedy Trial Act.  A subsequent order stated that Reese's trial was rescheduled for February 22, “per the final pretrial conference held November 10, 2016,” without any further explanation for the basis of the rescheduling. It did not mention the exclusion of time under the Speedy Trial Act or use any language that would suggest a finding by the Court that an exclusion was proper.

This sua sponte continuance carried the date of trial beyond the 70-day limit, and just before trial Reese filed a motion to dismiss the indictment.  The district court denied the motion and Reese appealed. 

Looking at the “ends of justice” exclusion provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), the Court noted (reiterated really) that an exclusion of time for “the ends of justice” is not automatic, but must set forth in the record its reasons for finding that the ends of justice served by the granting of such continuance “outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).

The Court then rejected the Government’s argument that the continuance was entered “in consultation with” Reese's counsel during the November 10 pre-trial conference based on the record which made clear that the District court began the conference by announcing the continuance.  Next, the Court rejected the Government’s theory that the defense acquiesced, finding that the Supreme Court has squarely rejected the prospective exclusion of time “on the grounds of mere consent or waiver.” (citing Zedner v. United States).  Finally, the Court rejected an argument that Reese needed to establish prejudice, which is required only under the Sixth Amendment speedy trial claims. 

Wednesday, March 06, 2019

Good Faith Exception Applies to pre-Carpenter Seizures of Cell Site Location Information (CSLI) Under the Stored Communications Act (SCA).

             Appellant Jay Goldstein had moved to suppress cell site location information (CSLI), in the District Court, arguing a violation of his Fourth Amendment rights because the information was obtained without a warrant.   The District Court denied the motion finding the information was lawfully obtained under the Stored Communications Act (SCA),  18 U.S.C. § 2703 (d), which does not require a showing of probable cause, but only a lower standard of “specific and articulable facts” showing that there were reasonable grounds to believe that the information sought was “relevant and material” to the underlying investigation.  The Third Circuit initially affirmed the decision pursuant to prevailing circuit case law that held a defendant did not have a privacy interest in CSLI and therefore the government did not need to establish probable cause before gathering the information.  Then, following the Supreme Court’s decision in Carpenter v. United States, 138 S.Ct. 2206 (2018), which held that defendants do have a privacy interest in their CSLI and a warrant based on probable cause is needed prior to seizing this type of data, the Third Circuit granted Appellant’s petition for rehearing.  The Third Circuit held as follows in United States v. Goldstein, 914 F.3d 200 (3d Cir. 2019).   

                First, the Third Circuit ruled that the government did violate Appellant’s Fourth Amendment rights, as explained by Carpenter, by seizing the information without a warrant.  However, the appellate court again affirmed the District Court’s decision under the good faith exception.  Specifically, the government seized the information under a court order that was lawful at the time it was issued and was consistent with prevailing federal appellate precedent.  The holding in Goldstein is consistent with other circuits that have found the good faith exception applies to data seized under the SCA before the decision in Carpenter.

                Notably, the Third Circuit rejected the argument that the good faith exception applies only to the actions of law enforcement.  The Court explicitly held that the rule also applies to government attorneys and any “state actors” that proceed under the reasonable good faith belief that their conduct is lawful. 

Sunday, February 10, 2019

Failure to postpone sentencing contravened the principles underlying the right to allocution, codified in Fed.R. Crim. P. 32(i)(4)(A)

In United States v. Chapman, Appeal No. 17-1656 (Feb. 7, 2019),, the Third Circuit vacated a 
criminal sentence because the District Court had failed to postpone the sentencing hearing. Chapman’s lawyer did not notify Chapman of the court date, and so, on  the day of sentencing, Chapman asked the District Court to give him at least a week to collect letters from his family. For his role in a cocaine distribution conspiracy, Chapman was found to be a career offender with an advisory  guideline range of 188 to 235 months. As part of the plea, the government would recommend a sentence of 188 months, and Chapman could seek a variance no lower than 144 months. The District Court sentenced him to 192 months. The Third Circuit found that Chapman’s request for a continuance sufficiently preserved the issue for appeal and reviewed the District Court’s denial for abuse of discretion/harmless error. The Third Circuit found that the District Court's denial of the request to postpone sentencing to give Chapman time to collect family letters and mitigate his sentence contravened the principles underlying the right to allocution, codified in Fed. R. Crim. P. 32(i)(4)(A), and also “improperly compromised the appearance of fairness.” The Third Circuit took the rare step of ordering resentencing by a different judge.

Candace Cain of the Federal Public Defender (WDPa) argued for Chapman.

924(e)’s definition of “serious drug offense” (ACCA) encompasses attempt, and the attempt and accomplice provisions of Pennsylvania’s possession with intent to distribute statute, 35 Pa. Stat. Ann § 780-113(a)(30), are co-extensive with federal law for purposes of the categorical approach

In United States v. Daniels, Appeal No. 17-3503 (Feb. 7, 2019),, the Third Circuit affirmed a 15-year mandatory minimum sentence under ACCA, 18 U.S.C. § 924(e)( 2)(A)(ii), based on Daniels’s three Pennsylvania convictions for possession with intent to distribute, 35 Pa. Stat. Ann § 780-113(a)(30). Subsection (a)(30) prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.” The Pennsylvania and federal definitions of delivery are nearly identical and both Pennsylvania and federal law include provisions for attempt and accomplice liability. United States v. Glass, 904 F.3d 319 (3d Cir. 2018) (citing 21 U.S.C. § 802(8) and 21 U.S.C. § 846).

Although the definition of “serious drug offense” in the ACCA does not include attempts, as does the definition of “violent felony” in (e)(2)(B), the ACCA’s use of the term “involving” sufficiently expands the meaning of a serious drug offense beyond the simple offenses of manufacturing, distributing, and possessing a controlled substance to include attempt. The Court left open whether mere offers to sell sweep more broadly than the federal counterpart.

The Court also found that Pennsylvania and federal law similarly criminalize conduct under an attempt and accomplice framework. Pennsylvania’s and the federal approaches to attempt liability for drug offenses “are essentially identical.” Both follow the Model Penal Code’s requirements of intent and a substantial step. Likewise, Pennsylvania and federal law base their respective approaches to accomplice liability on the Model Penal Code: all three define an accomplice as a person who had the specific intent to facilitate a crime and acted to facilitate it. The Court rejected that Pennsylvania courts would hold a defendant liable under subsection (a)(30) for offers to sell,  mere preparation, or a buyer’s solicitation.

A defendant cannot be criminally liable for conspiring with a government informant

In United States v. Garner, Appeal No. 17-1181 (Feb. 8, 2019),, the Third Circuit found sufficient evidence to affirm Garner’s convictions for conspiracy to commit armed bank robber, attempted bank robbery, and possession of a firearm in furtherance of a crime of violence. Garner had planned to rob a bank, but the person he asked to help him was an FBI informant who immediately told the FBI about Garner’s offer. Garner was arrested while the robbery was still being planned. Most of the short opinion reiterated settled law and analysis: (1) sufficiency of the evidence is reviewed in the light most favorable to the government; (2) the informant’s surveillance of a bank and three men’s detailed discussion to plan to rob it after that were sufficient to establish conspiracy even if the final details still had to be set; and (3) a defendant may commit an attempt even where he stops short of “the last act necessary” for the actual commission of the crime. The Court joined other Circuits (citing the Seventh and Tenth) and held that a defendant cannot be criminally liable for conspiring with a government informant. 

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...