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.

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...