Monday, June 26, 2023

The Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

 In Samia v. United States, No. 22-196 (June 23, 2023), the Supreme Court held that the Confrontation Clause was not violated by the admission of a non-testifying co-defendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241

 In Jones v. Hendrix, Warden, No. 21-857 (June 22, 2023), the Supreme Court ruled that 18 U.S.C. § 2255 does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a habeas petition under 28 U.S.C. § 2241. Petitioners who are restricted from filing a § 2255 petition can no longer seek relief under 28 U.S.C. § 2241 in lieu of § 2255, even if they are actually innocent or serving an illegal sentence. This is because the Supreme Court found that § 2255(e) - the savings clause - only covers individuals who literally cannot file a § 2255 motion. This holding abrogates the more favorable Third Circuit holding in In re Dorsainvil, 119 F. 3d 245, 251 (3d. Cir. 1997).

Friday, June 16, 2023

Third Circuit holds that Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c) even when the conviction rests on aiding and abetting or Pinkerton liability

In United States v. Stevens, Appeal No. 21-2044 (3d Cir. June 12, 2023), Appellant Stevens challenged his § 924(c) conviction on two grounds. First, relying on United States v. Nedley, 255 F.2d 350 (3d Cir. 1958), Appellant argued that his conviction for Hobbs Act robbery must be vacated because the District Court failed to charge the jury on two elements previously read into the statutory definition of Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) - a specific intent to steal and a carrying away of the property. But those elements are absent from the Hobbs Act’s unambiguous statutory definition of “robbery,” and the Court acknowledged today that Nedley has been abrogated by intervening Supreme Court precedent. Therefore, the Court affirmed Stevens’s Hobbs Act robbery conviction. In addition, because Stevens’s robbery conviction qualified as a “crime of violence” under 18 U.S.C. § 924(c) regardless of whether it was predicated on the Government’s aiding and abetting or its alternative Pinkerton conspiracy theory, the Court also affirmed his conviction for that offense.

Third Circuit grants as-applied constitutional challenge to 18 U.S.C. § 922(g)(1) for individual convicted of welfare fraud nearly 25 years ago

In Range v. Attorney General, Appeal No. 21-2835 (3d Cir. June 6, 2023) (en banc), Petitioner Bryan Range was prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(1) by virtue of having a 1995 conviction for making false statements to obtain food stamps in violation of 62 Pa. Stat. Ann. § 481(a), a crime Pennsylvania classifies as a misdemeanor punishable by up to five years in prison. He sued seeking a declaration that § 922(g)(1) violates the Second Amendment as applied to him. The Court agreed, holding 11-4 that the government did not carry its burden of proving that disarming him is consistent with the Nation’s historical tradition of firearm regulation. There were six opinions, between the majority, concurrences, and dissents.

Potentially broad impact: The various opinions exhaustively debate whether Range has a narrow or incredibly broad impact. Here are the immediate takeaways:

(1) not all felons are covered by § 922(g)
(2) felons “like Range” are not
(3) what “like Range” means remains to be determined: minor fraud, all fraud, all nonviolent, all nonthreatening to public order when armed, all felons, other?

Stay tuned for further developments!

Resolving a circuit split, Supreme Court holds that sentence imposed under 18 U.S.C. § 924(j) can run either concurrently or consecutively to another sentence

In Lora v. United States, Case No. 22-49 (June 16, 2023), the United States Supreme Court resolved a circuit split and held that 18 U.S.C. § 924(c)’s bar on concurrent sentences does not extend to a sentence imposed under a different subsection, 18 U.S.C. § 924(j). A § 924(j) sentence therefore can run either concurrently with or consecutively to another sentence.

Supreme Court holds that when a conviction is reversed because the prosecution occurred in the wrong venue, retrial is allowed and does not violate the Double Jeopardy Clause

In Smith v. United States, Case No. 21-1576 (June 15, 2023), the United States Supreme Court held that the Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district. The Court found that a judicial decision on venue is fundamentally different from a jury’s general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision cannot be upset by speculation or inquiry into such matters by courts. Conversely, retrial is permissible when a trial terminates on a basis unrelated to factual guilt or innocence of the offense of which the defendant is accused, e.g., juror deadlock. Similarly, the reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a “judgment of acquittal” under Rule 29, plainly does not resolve the bottom-line question of criminal culpability. In this case, then, the Eleventh Circuit’s decision that venue was improper did not adjudicate Smith’s culpability, and thus does not trigger the Double Jeopardy Clause.

Supreme Court defines when a defendant "uses" a means of identification "in relation to" a predicate offense under 18 U.S.C. § 1028A

 In Dubin v. United States, Case No. 22-10 (June 8, 2023), the United States Supreme Court considered the limits of when a defendant "uses" another person's means of identification under 18 U.S.C. § 1028A. The Court found that a defendant “uses” another person's means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal. The Government suggested a broader reading of "uses" to cover any situation where a defendant employs a means of identification to facilitate or further the predicate offense in some way. The Court found this reading too broad, finding that § 1028A(a)(1) would thus apply automatically any time a name or other means of identification happens to be part of the payment or billing method used in the commission of a long list of predicate offenses.

Monday, June 05, 2023

The sixteen-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(i) for a "drug trafficking offense" includes both completed and inchoate offenses, even conspiracies without overt acts

 In United States v. Garcia-Vasquez, Appeal No. 22-2219, the Third Circuit held that the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015) applies to anyone with a prior conviction for a “drug trafficking offense.” The enhancement’s text captures a wide swath of “offense[s],” both completed and inchoate, and even conspiracies without overt acts. Therefore, the Court held it need not consider the Guideline’s commentary or the rule of lenity and affirmed the district court's application of the enhancement.

Third Circuit affirms District Court's suppression of evidence where Government forfeited potentially winning argument

 In United States v. Donte Dowdell, Appeal No. 21-3251, the Government appealed the District Court's order granting the defendant's motion to suppress evidence. In the District Court, the government argued that the law enforcement officer who stopped Dowdell had reasonable suspicion to believe crime was afoot, which justified the officer opening Dowdell's car door. After opening the door, the officer saw in bulge in Dowdell's jacket at chest-level. He immediately ordered Dowdell out of the car and patted him down, revealing a fully loaded semi-automatic firearm with a bullet in the chamber. The District Court granted Dowdell's suppression motion after finding that the government failed to establish reasonable suspicion.

After ruling that the evidence would be suppressed because the government failed to establish that the officer opened the door without violating Dowdell’s Fourth Amendment rights, the District Court suggested that the government might have made an alternative argument that Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), could be extended to permit officers to order people out of a car during a valid traffic stop without requiring reasonable suspicion to do so. Because the government failed to raise this alternative argument, however, the District Court found it had been waived and refused to rule on the issue.

On appeal, the Third Circuit acknowledged that it had not yet decided whether police officers may open car doors during routine traffic stops based on less than reasonable suspicion without violating the Fourth Amendment. The District Court suggested that the Supreme Court’s decision in Wilson might be extended to cover those circumstances. But the government never raised or litigated that argument in the District Court. So the argument was forfeited. And the
argument the government did make—that the police officer had reasonable suspicion to believe crime was afoot that justified his opening the car door—was invalid. The Court further held that the District Court did not abuse its discretion when it did not excuse the government’s forfeiture. For these reasons, the Court found the rule of law required it to affirm the order of the District Court.

Circuit Judge Fisher, in a dissenting opinion, would have vacated the District Court's order and remanded for further proceedings. Judge Fisher argued that the District Court's waiver determination was based on an incorrect application of the law. Nor was it clear to Judge Fisher that the government failed to preserve a Wilson-extension argument below. Even if the government had failed to properly preserve the Wilson-extension argument, Judge Fisher would have reversed the District Court's suppression order because "courts are obligated to apply the legal principles they identify as correct, and the District Court correctly recognized that officers do not require reasonable suspicion to open a car door when conducting a traffic stop."

The subtraction requirement in 18 U.S.C. § 3583(h)'s final clause cannot be followed where a defendant is serving a life term of supervised release

 In United States v. Simmons, Appeal No. 22-2485, the Third Circuit resolved an open question regarding 18 U.S.C. § 3583(h)'s subtraction clause. Agreeing with the majority of circuits to consider the issue, the Court held that § 3583(h)'s subtraction requirement cannot be followed where a defendant has a life term of supervision because it is impossible to quantify a life sentence. 

The Court also upheld the district court's re-imposition of a lifetime term of supervised release upon revocation despite the defendant's significant mental health issues.

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 ...