Tuesday, April 27, 2021

District Court procedurally erred in rejecting leadership and obstruction enhancements and neither error was harmless. Yet, each enhancement required further factfinding so that the Third Circuit would not order these enhancements be applied on remand either.

 In United States v. Francis Raia, 2021 WL 1257790, Appeal No. 20-1033 (3d Cir. Apr. 6, 2021), https://www2.ca3.uscourts.gov/opinarch/201033p1.pdf, the Third Circuit vacated the sentence and remanded for resentencing. Raia was convicted of a conspiracy to bribe voters. The District Court declined to impose two enhancements sought by the government: (1) a 4-level “organizer, leader, manager, or supervisor” enhancement under U.S.S.G. § 3B1.1(a), The Court rejected the 4-level enhancement because there was no evidence of any consequence for disobedience, but it found a 2-level enhancement applied. (2) a 2-point obstruction enhancement under § 3C1.1. The Court did not make findings about falsity, materiality, and willfulness because there was no evidence clearly corroborating the three incredible or biased cooperators. 

The District Court found the total offense level was 14, the guideline range was 15 to 21 months, and imposed a sentence of three months. The Third Circuit agreed that the District Court committed procedural error in not applying both of these enhancements. When criminal activity involves 5 or more participants, a trial court can only apply a 4-level enhancement, a 3-level enhancement, or no enhancement. See United States v. Kirkeby, 11 F.3d 777, 778–79 (8th Cir. 1993). Raia conceded the 2-point enhancement was error. For obstruction, the Third Circuit requires a Court to make explicit factual findings as to each element when the government seeks to have the enhancement applied, even when the district court declines to apply it, because such findings are necessary for meaningful appellate review. United States v. Napolitan, 762 F.3d 297, 314-15 (3d Cir.  2014).

The Court would not instruct the District Court to impose either enhancement. The 4-level enhancement required additional factfinding into control or degree of planning that would distinguish between “organizer or leader” and “manager or supervisor.” The element of falsity to prove obstruction was not clear from the record because the fact that Raia instructed his campaign workers to bribe voters was not necessarily implicit in the general verdict. 

However, neither did the Court find either error to be harmless. There are two instances where the proponent of maintaining the sentence can assure an appellate court “that an erroneous Guidelines calculation did not affect the sentencing process and the sentence ultimately imposed.” See United States v. Langford, 516 F.3d 205, 219 (3d Cir. 2008)). First, an erroneous calculation is harmless where a district court explicitly states that it would have imposed the same sentence even under the correct Guidelines range. Second, a guidelines miscalculation is harmless where the district court “chose to disregard the Guidelines as too severe in such a way that we can be certain that the miscalculation had no effect on the sentence imposed.” Langford, 516 F.3d at 218. Raia could not meet the second instance where the District Court did not follow the post-Booker three step sentencing procedure nor make detailed findings of fact or law.

 

Insufficient evidence for criminal contempt, underlying District Court order invalid because it compelled testimony in violation of Fifth Amendment

 

In United States v. Nilda Morton, 2021 WL 1287562, Appeal No. 18-3270 (3d Cir. Apr. 7, 2021), https://www2.ca3.uscourts.gov/opinarch/183270p.pdfthe Third Circuit reversed a contempt conviction under plain error review. Morton had pled guilty to drug offenses, entered into a narrow cooperation agreement, and testified for the government in several cases. She then invoked her right to remain silent when called to testify at a co-conspirator’s supervised release revocation hearing. The District Court ordered her to testify, and warned her against invoking her Fifth Amendment right, but she declined to answer 27 times. Morton was then indicted for and convicted of criminal contempt. At that trial, the District Court did not let in evidence relevant for its determination of whether Morton reasonably believed her testimony could incriminate herself (1) the plea or cooperation agreements, and (2) testimony by Morton’s attorney about his advice and Morton’s fear of new and different charges. The Third Circuit held the evidence was insufficient to support the contempt conviction because: (1) the government was required to prove the defendant disobeyed a "valid" court order; (2) where a defendant invokes the right against compelled self-incrimination, and the district court overrules the invocation and orders  a defendant to testify, the court's order is “valid” only if the record of the proceeding makes it "perfectly clear" that witness’s answers "cannot possibly" have a tendency to incriminate her; (3) here, the district court did not create the record necessary to meet this standard; (4) because the evidence was insufficient to prove that Morton violated a "valid" court order, see 18 U.S.C. § 401(3), the government failed to establish an essential element of the offense. The Court decided this error met all the prongs of plain error review, vacated Morton’s contempt conviction, and reversed the District Court’s denial of Morton’s motion for judgment of acquittal.

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

               Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Appl...