In United States v. Voelker , No. 05-2858, (3d Cir. June 5, 2007), Voelker pled guilty to possessing child pornography in violation of 18 U.S.C. §2252(a)(2). The court imposed a supervised release term of life. On appeal, he challenged three special conditions: (1) The defendant is prohibited from access to any computer equipment or any on-line computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system or any other public or private computer network; (2) The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct as defined at Title 18 of the United States Code, Section 2256(2); and (3) The defendant shall not associate with children under the age of eighteen except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.
The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."
The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).
As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.
Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."
The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."
It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.
The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."
Written by Renee Pietropaolo
Thursday, June 07, 2007
Tuesday, June 05, 2007
Habeas Corpus: Plain Error Review When Party Fails to Object to Magistrate’s R & R
In Nara v. Frank, No. 05-4779 (3d Cir. May 8, 2007), the Third Circuit held that “where a party fails to file timely objections to a magistrate judge’s R & R in a habeas proceeding, and the district court adopts the R & R, we will only review the R & R for plain error.”
Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.
After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.
With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.
Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.
After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.
With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.
Wednesday, May 30, 2007
Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement
In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.
McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.
In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.
A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.
The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”
A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”
McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.
In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.
A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.
The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”
A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”
Third Circuit Unpersuaded That a Need to Pay Restitution to Microsoft Justifies a Variance From the Sentencing Guidelines
In United States v. Kononchuk, No. 06-2484, (3d Cir. May 8, 2007), the Third Circuit vacated the defendant’s sentence and remanded for resentencing, finding that the district court’s sentencing variance below the Guidelines was unsupported by a “meaningful consideration” of the §3553(a) factors and failed to address the government’s specific, meritorious concerns and objections raised during sentencing.
For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.
Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.
Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.
The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”
For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.
Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.
Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.
The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”
Friday, May 18, 2007
Sentence Reversed for Ex Post Facto Violation Citing Pre-Booker Precedent
In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.
The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."
The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."
Sunday, May 06, 2007
Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court
In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.
Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.
The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.
Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.
The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.
Monday, April 30, 2007
Court Vacates Shedrick Opinion; Grants Panel Rehearing Sua Sponte
In a April 26, 2007, Order, the Third Circuit vacated its February 28, 2007, precedential opinion in United States v. Shedrick, 478 F.3d 519 (3d Cir. 2007).
In that published opinion (described in detail here), the Court found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.
In that published opinion (described in detail here), the Court found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.
Third Circuit Retains Jurisdiction Even Where Defendant Signs Waiver of Right to Appeal
In United States v. Gwinnett, Case No. 06-1766 (3d Cir. April 26, 2007), the Third Circuit held that it "retains subject matter jurisdiction over the appeal by a defendant who had signed an appellate waiver." It emphasized that it "will not exercise that jurisdiction to review the merits" of an appeal where the defendant "knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice," because waivers of right to appeal are valid and enforceable. The Court then found that Ms. Gwinnett’s waiver of her appellate rights was knowing and voluntary. It consequently declined to exercise its jurisdiction and affirmed the district court's decision.
This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."
This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."
Thursday, April 26, 2007
Feigned Mental Illness is Proper Basis for Sentencing Enhancement for Obstruction of Justice
In United States v. Batista, Case No. 05-2949 (3d Cir. April 25, 2007), the district court applied the two-level enhancement of U.S.S.G. § 3C1.1 to the defendant’s offense level for feigning mental illness in an attempt to avoid trial. The defendant had initially negotiated with the government concerning a guilty plea. That negotiation fell through, and he moved for a evaluation of his competency to stand trial. The defendant underwent five separate competency evaluations. The evaluators decided that he was malingering, and the district court found him competent to stand trial. He subsequently pleaded guilty. At sentencing, the government moved for, and the district court granted, the sentencing enhancement for obstruction of justice.
The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."
The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."
3C Rules On Document Sealing And Attorney Speech Rule
In US v. Wecht (decided April 12, 2007), the Third Circuit addressed three applications arising during the prosecution of the Allegheny County coroner (Wecht). The trial on the 84-count indictment, alleging that Wecht had used his public office for private financial gain, was stayed pending the Circuit’s resolution of the applications, which were:
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.
Friday, April 20, 2007
Crawford does not prevent introduction of hearsay evidence at sentencing
In United States v. Robinson, Appeal No. 05-5330 (3d Cir. 3/5/07, published 4/16/07), the Third Circuit fell in line with every other Circuit to consider the issue when it ruled that the United States Supreme Court's recent confrontation clause decision in Crawford v. Washington, 541 U.S. 36 (2004), provides no basis for reversing prior Supreme Court precedent expressly allowing the introduction of hearsay evidence in the sentencing context.
Monday, April 09, 2007
120-month bank robbery sentence held reasonable for ailing defendant
The Third Circuit has upheld as reasonable a 120-month sentence in a bank robbery case in which the defendant has suffered from AIDS since the early 1980s. The defendant in United States v. Watson, No. 05-3892 (3d Cir. Apr. 5, 2007) faced a Guidelines range of 151-188 months, and the district court varied downward on account of the defendant's health, which had deteriorated during his pre-trial detention due to improper management of his medication by prison officials.
The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.
The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.
The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.
The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.
Wednesday, April 04, 2007
Third Circuit rejects challenge to shoeprint expert testimony, affirms application of CO provision and 460-month sentence for bank robbery
In United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007), the Third Circuit rejected a challenge to the admission of testimony of the government’s expert witness, where Ford argued that the expert opinion failed to meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The expert was permitted to testify that Ford’s shoes were the kind that could have made the footprints left on the bank counter at one of the robberies with which he was charged. Ford argued that the testimony should be excluded because the opinion was no more precise than that the shoe impressions at the bank and those made by the shoes he was wearing when apprehended were "similar." However, the Court ultimately reasoned that an expert opinion expressing the possibility that a crime shoe impression may have been made by shoes worn by the defendant, to the extent it meets the reliability and relevancy thresholds in Daubert, is "clearly relevant" to the question of whether defendant was present at the scene of the crime, and thus determined that the district court did not abuse its discretion in admitting this testimony.
The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.
The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.
Friday, March 30, 2007
United States v. Vargas - Fast-Track Disparity Case - Denied Rehearing
The Third Circuit has denied rehearing in United States v. Vargas, where the Court rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. (panel opinion here) In a concurring opinion, Judge Ambro elaborated on the “limited scope” of the Court’s panel opinion, its two holdings and how it is consistent with United States v. Gunter. First, Vargas held that “a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Although Gunter held that a court errs when it believes it has no discretion to consider an infirmity in the guidelines, it did not establish a rule that the court must consider it. Sentencing courts may, however, do so if “they are persuaded that the Guidelines do not sufficiently effect the goals of sentencing.” Second, Vargas held that a sentencing court “may not, in the fast-track context, rely on § 3553(a)(6)’s reference to ‘unwarranted sentence disparities’ to justify a sentence that varies from the advisory Guidelines range.” This does not preclude other factors - - such as ‘the history and characteristics of the defendant’ - - from serving as a basis for variance in the fast-track context. For example, an individual defendant may enter an early plea and waive various procedural rights, considerations permissible in Gunter’s third step.
Tuesday, March 20, 2007
Court affirms conviction for attempted support of terrorists, rejecting claims of entrapment, outrageous government conduct, and juror misconduct
In United States v. Lakhani, No. 05-4276 (3d Cir. Mar. 16, 2007), the Third Circuit affirmed the defendant’s conviction and 47-year sentence. Lakhani, a now-71-year-old trader of Indian descent, was convicted of attempting to provide material support to terrorists and other offenses following a jury trial for his role in the attempted importation of shoulder-fired surface-to-air missiles. Much of the evidence at trial consisted of Lakhani’s recorded conversations with a government informant who asked the defendant to procure missiles for his terrorist group, and who Lakhani "enthusiastically" agreed to help. Over the course of almost two years, Lakhani made various assurances to the informant that a missile would soon be available. In the end, however, the only weapon that the defendant "obtained" was a mock missile designed by cooperating Russian and American authorities.
The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"
Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).
Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."
The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"
Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).
Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."
Court clarifies earlier opinion: "We have never held that an arrest that is unlawful under state law is unreasonable per se under the 4th A."
In United States v. Laville, No. 06-1577 (3d Cir. Mar. 16, 2007), the Third Circuit—in a decision authored by Judge Barry, with a concurrence by Judge McKee and dissent by Judge Stapleton—reversed the district court’s grant of a motion to suppress post-arrest statements, explaining that the district court misinterpreted the Third Circuit’s holding in United States v. Myers, 308 F.3d 251 (3d Cir. 2002)(authored by Judge McKee, joined by Judge Barry, with a dissent by Judge Alarcon, from the Ninth Circuit). The district court found that the officer who arrested the defendant only had probable cause that the defendant had committed a misdemeanor offense (illegal entry), which, under the territorial law of the Virgin Islands, must be committed in the presence of an officer to justify a warrantless arrest. The district court read Myers as holding that local law governed the constitutionality of the defendant’s arrest; therefore, since the offense had been completed before the officer arrived at the scene, he had no authority to arrest Laville.
Judge Barry’s opinion explained that the district court’s ruling was based on a misinterpretation of Myers. "We did not hold in Myers and, indeed, have never held that an arrest that is unlawful under state and local law is unreasonable per se under the Fourth Amendment." Rather, "the validity of an arrest under state law is at most a factor that a court may consider in assessing the broader question of probable cause." The Court emphasized that reasonableness is the central inquiry under the Fourth Amendment and, under that standard, Laville’s arrest was supported by probable cause.
Judge McKee concurred with this analysis, but wrote separately to note his concern that the government is not allowed to take an interlocutory appeal merely because it disagrees with a suppression ruling. Moreover, this case could be decided entirely on the basis of the Third Circuit’s analysis of when the offense of illegal entry is completed in Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995).
In dissent, Judge Stapleton agrees with the district court that Myers requires application of the misdemeanor presence rule to determine the validity of Laville’s arrest. Even apart from Myers and the misdemeanor presence rule, however, Judge Stapleton would affirm the lower court because the information available to the arresting officer was insufficient to supply probable cause for an arrest.
Judge Barry’s opinion explained that the district court’s ruling was based on a misinterpretation of Myers. "We did not hold in Myers and, indeed, have never held that an arrest that is unlawful under state and local law is unreasonable per se under the Fourth Amendment." Rather, "the validity of an arrest under state law is at most a factor that a court may consider in assessing the broader question of probable cause." The Court emphasized that reasonableness is the central inquiry under the Fourth Amendment and, under that standard, Laville’s arrest was supported by probable cause.
Judge McKee concurred with this analysis, but wrote separately to note his concern that the government is not allowed to take an interlocutory appeal merely because it disagrees with a suppression ruling. Moreover, this case could be decided entirely on the basis of the Third Circuit’s analysis of when the offense of illegal entry is completed in Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995).
In dissent, Judge Stapleton agrees with the district court that Myers requires application of the misdemeanor presence rule to determine the validity of Laville’s arrest. Even apart from Myers and the misdemeanor presence rule, however, Judge Stapleton would affirm the lower court because the information available to the arresting officer was insufficient to supply probable cause for an arrest.
Court finds information alleging prior felony properly filed and served
In United States v. Rivas, No. 05-3380, (3d Cir. Mar. 12, 2007), the Third Circuit affirmed the defendant’s conviction for conspiring to distribute crack cocaine, finding no reversible trial error. The Court also affirmed the defendant’s 240-month sentence, rejecting Rivas’s claim that the government improperly filed and served the information charging a prior felony drug conviction pursuant to 21 U.S.C. § 851.
Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.
The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."
Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.
Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.
The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."
Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.
Monday, March 12, 2007
Child Support Recovery Act does not Exceed Congressional Power Under Commerce Clause
In United States v. Kukafka, No. 05-1955 (3d Cir. Mar. 6, 2007), defendant was found guilty of two counts of failure to make child support payments in violation of 18 U.S.C. §228(a)(1) and (3). Kukafka argued that the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998, ("the Act"), exceeds the scope of Congress’s power under the Commerce Clause and violates the Tenth Amendment of the U.S. Constitution.
The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.
The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.
The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.
The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.
Maximum 60-month Sentence on Revocation of Supervised Release Reasonable
In United States v. Bungar, No. 05-5519 (3d Cir. Mar. 5, 2007), the Third Circuit found reasonable a 60-month sentence upon revocation of supervised release for drug-related violations. Bungar was originally charged with conspiracy to possess with intent to deliver heroin, distribution and possession with intent to distribute heroin and distribution and possession with intent to distribute cocaine. Pursuant to a cooperation agreement, he entered a guilty plea to the first two charges. The mandatory guideline range at the time was 292 - 365 months. The government filed a §5K1.1 motion and the court departed to 96 months’ imprisonment and 5 years’ supervised release.
Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.
Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."
Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.
Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."
Friday, March 02, 2007
Court finds it has jurisdiction to hear § 2255 petition despite waiver of right to mount collateral attack
In United States v. Shedrick, No. 04-2329 (3d Cir. Feb. 28, 2007), the Third Circuit found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.
Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.
While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.
Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."
The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.
The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.
Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.
While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.
Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."
The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.
The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.
Sunday, February 25, 2007
Guidelines enhancement for bartering drugs for gun
In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."
Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.
On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.
Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."
Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.
Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.
On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.
Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."
Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.
Wednesday, February 21, 2007
“Closely-regulated industry” exception to warrant requirement, as applied to PA Liquor Control Board, requires that Board officials conduct search
In a civil action under section 1983 alleging that a warrantless search of their tavern violated plaintiffs’ Fourth Amendment rights, defendants moved for summary judgment on the ground that the search had been conducted lawfully pursuant to the closely-regulated industry exception. That exception "requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant." The defendants argued that the search was authorized under the Pa. Liquor Control Board’s regulations. Because the record showed that the search had been conducted by local police and not by any officials of the Board, the court examined Pa. law to determine whether the search met the requirements of the exception. Reviewing the state statutes and caselaw, the court determined that the regulatory scheme in Pa. only permits warrantless inspection by specified categories of individuals connected to the Board or working under their direction. Because the plaintiffs alleged that the search was performed by local police acting without any grant of authority by the Board, the court reversed the grant of summary judgment and allowed the case to proceed. Watson v. Abington Township, http://www.ca3.uscourts.gov/opinarch/054133p.pdf, 2/16/07.
“Fast-track” programs in other districts do not create “unwarranted” disparities with non-fast-track districts
In a decision that appears to create a conflict with the court’s decision in U.S. v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Third Circuit has rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. U.S. v. Vargas, http://www.ca3.uscourts.gov/opinarch/061368p.pdf, 2/16/07. At sentencing for illegal reentry by an alien, the defense requested that the court consider the disparity between his guideline range and the range he would fall in if he were being sentenced in one of the many districts that has a fast-track program. In those districts, where the Attorney General has granted the U.S. Attorney’s office authority to institute a fast-track program, defendants who plead guilty under the program receive a downward departure under U.S.S.G. § 5K3.1. The district court refused to consider the disparity argument and the Third Circuit affirmed. The court reasoned that the refusal to consider the disparity did not render the sentence unreasonable because the disparity was warranted in light of legislative and executive action in fast-track districts. The court left open a window of possibility in cases in which the defense can show that a defendant under exactly parallel circumstances would have received a lower sentence. The court’s legal reasoning is difficult to reconcile with Gunter, where the court held that section 3553(a) requires courts to consider all circumstances in imposing sentence, including the crack/powder cocaine differential approved by Congress and the Sentencing Commission.
“Indecent assault” is a “crime of violence” under the guidelines, categorical approach does not apply and court can look to underlying facts
In U.S. v. Siegel, http://www.ca3.uscourts.gov/opinarch/054537p.pdf, (3d Cir. 2/16/07), the defendant had a prior Pa. conviction for "indecent assault." Under U.S.S.G. § 4A1.1(f), an extra criminal history point is awarded under certain circumstances for prior crimes of violence, as defined under section 4B1.2(a). The question on review was whether the indecent assault conviction qualified as a "forcible sexual offense," one of the enumerated crimes of violence under section 4B1.2(a). The Pa. statute has numerous subsections, some of which have an element of force and some of which do not. The charging information did not identify any particular subsection, but rather listed all of them. Also, the government did not introduce a plea agreement or colloquy from the prior case. Therefore, under a strict categorical approach, the conviction would not qualify. However, applying its 2004 decision in Singh v. Ashcroft, 383 F.3d 144, the court decided that it was not bound by the categorical approach to an analysis of the elements of the offense, because "the disjunctive phrasing of the particular state statute . . . invites inquiry into the specifics of the conviction." The court then looked to the PSR, which contained a factual description of the offense that included the application of force. Because the defense had not objected to the PSR, the court took that as an admission of the facts and concluded that the admission was sufficient for application of the additional criminal history point. This case present a potentially significant inroad into application of the categorical approach to prior conviction enhancements.
Monday, February 05, 2007
Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max
[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]
Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.
The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.
Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.
The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.
Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."
Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."
More to come...
Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.
The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.
Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.
The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.
Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."
Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."
More to come...
Friday, February 02, 2007
Large Upward Variance Rejected in First Substantive Sentencing Reversal, as Third Cir. Clarifies That Rehabilitation Is Not Grounds for Imprisonment
The Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months.
The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment." Manzella, slip op. at 21.
But another potentially far-reaching ruling in Manzella is the reasonableness holding. While the primary rationale the district court gave for the 30-month sentence was its belief that this was the minimum to qualify the defendant for BOP's 500-hour drug treatment program, the court also cited the defendant's many violations of her pre-trial release conditions. These were substantial: failure to report to drug treatment, breaking home confinement, and testing positive for cocaine. Manzella, slip op. at 4-5. Additionally, the court made a rote recitation of the other Section 3553(a) factors.
Despite the seriousness of these violations, the Third Circuit held that they "cannot alone justify in this case a sentence nearly four times the advisory Guidelines range." Manzella, slip op. at 24. Nor did it matter that the district court recited the other sentencing factors.
In a final twist, the Court seems to raise the bar regarding the level of explanation of sentence district courts must put on the record. The Third Circuit has always required post-Booker that the record reflect the district court's consideration of all non-frivolous arguments advanced by the parties, but Manzella goes a step further by faulting the district court for failing to state "why [it] disagreed with defense counsel's argument that an alternative sentence [of halfway house detention coupled with intensive drug treatment] would have accomplished the district court's rehabilitative goals." Manzella, slip op. at 24. This is a significantly heightened explanation requirement.
It bears remembering that Manzella presents a quite sympathetic defendant. As the Court's affirmance in Colon earlier this week shows, dramatic upward variances are sometimes approved. So far, it is difficult to tell when the seemingly-tougher review afforded in Manzella will apply.
The bulk of the Court's opinion in United States v. Manzella deals with the threshold procedural issue of whether district courts may use imprisonment to promote rehabilitation, in this case drug treatment. The Court says "no," based on 18 U.S.C. 3582(a), which states that "imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court explains that this is perfectly consistent with 18 U.S.C. 3553(a)(2)(D), which directs district courts to consider rehabilitation in determining sentence, because "imprisonment" and "sentence" do not mean the same thing. Thus, defendants "[can]not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. Instead, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment." Manzella, slip op. at 21.
But another potentially far-reaching ruling in Manzella is the reasonableness holding. While the primary rationale the district court gave for the 30-month sentence was its belief that this was the minimum to qualify the defendant for BOP's 500-hour drug treatment program, the court also cited the defendant's many violations of her pre-trial release conditions. These were substantial: failure to report to drug treatment, breaking home confinement, and testing positive for cocaine. Manzella, slip op. at 4-5. Additionally, the court made a rote recitation of the other Section 3553(a) factors.
Despite the seriousness of these violations, the Third Circuit held that they "cannot alone justify in this case a sentence nearly four times the advisory Guidelines range." Manzella, slip op. at 24. Nor did it matter that the district court recited the other sentencing factors.
In a final twist, the Court seems to raise the bar regarding the level of explanation of sentence district courts must put on the record. The Third Circuit has always required post-Booker that the record reflect the district court's consideration of all non-frivolous arguments advanced by the parties, but Manzella goes a step further by faulting the district court for failing to state "why [it] disagreed with defense counsel's argument that an alternative sentence [of halfway house detention coupled with intensive drug treatment] would have accomplished the district court's rehabilitative goals." Manzella, slip op. at 24. This is a significantly heightened explanation requirement.
It bears remembering that Manzella presents a quite sympathetic defendant. As the Court's affirmance in Colon earlier this week shows, dramatic upward variances are sometimes approved. So far, it is difficult to tell when the seemingly-tougher review afforded in Manzella will apply.
Tuesday, January 30, 2007
Third Circuit Upholds Large Upward Variance, Explaining that Ratcheting Procedure Not Required
The Third Circuit clarified yesterday, in United States v. Colon, that the ratcheting procedure district courts must employ when departing upward under the Guidelines for criminal history -- i.e., individually and sequentially considering each next-higher criminal history category -- does not apply to upward variances in consideration of the Section 3553(a) factors. The Court has previously held that ratcheting is still required post-Booker when district courts are departing under the Guidelines, United States v. King, 454 F.3d 187, 193 (3d Cir. 2006), but to require a similarly Guidelines-centric methodology for variances impermissibly "tie[s] the courts hands" by giving the Guidelines undue primacy in the Section 3553(a) calculus. Colon, slip op. at 7. Booker "doubly diminished" the Guidelines, the Court says, first by rendering them advisory and second by putting them on an even plane with the other Section 3553(a) factors. Colon, slip op. at 4.
Here, the demotion of the Guidelines worked to the defendant's detriment. The Third Circuit affirmed a 180-month sentence on a Guidelines range of 70-87 months (offense level 25, criminal history category III). The variance was far in excess of even the Guidelines range for a level 25 offender assuming a category VI criminal history (110-137 months), but was reasonable, the Court held, given the circumstances of the defendant's prior crimes. It remains to be seen whether the Third Circuit will take such a broad view of reasonableness when considering a similarly drastic variance below the Guidelines range.
Here, the demotion of the Guidelines worked to the defendant's detriment. The Third Circuit affirmed a 180-month sentence on a Guidelines range of 70-87 months (offense level 25, criminal history category III). The variance was far in excess of even the Guidelines range for a level 25 offender assuming a category VI criminal history (110-137 months), but was reasonable, the Court held, given the circumstances of the defendant's prior crimes. It remains to be seen whether the Third Circuit will take such a broad view of reasonableness when considering a similarly drastic variance below the Guidelines range.
Tuesday, January 23, 2007
Third Circuit Blog
Third Circuit Blog
In United States v. Korey, 2007 WL 14686, No. 05-3840, filed 1/4/07, the 3d Circuit vacated the defendant's conviction because the conspiracy instruction given to the jury contained an impermissible mandatory presumption that was not harmless. The instruction foreclosed the jury's consideration of an essential element of conspiracy: that the defendant shared a common goal, which in this case was to advance the cocaine distribution scheme.
In United States v. Korey, 2007 WL 14686, No. 05-3840, filed 1/4/07, the 3d Circuit vacated the defendant's conviction because the conspiracy instruction given to the jury contained an impermissible mandatory presumption that was not harmless. The instruction foreclosed the jury's consideration of an essential element of conspiracy: that the defendant shared a common goal, which in this case was to advance the cocaine distribution scheme.
65-year sentence affirmed for first offender convicted of 924(c) in triplicate.
Nope, not a typo . . . In United States v. Walker, No. 04-4405 (1/16/07), the Third Circuit affirmed a 65-year sentence for two armed robberies a jury said Mr. Walker committed in late 2004, as well as his possession of a firearm in connection with three crack-related offenses. The sentence consisted of a 10-year concurrent sentence for the drug offenses, and consecutive sentences, totaling 55 years, for three violations of 18 U.S.C. § 924(c).
At issue on appeal was "whether the 55-year consecutive mandatory minimum portion of [Mr. Walker's] sentence . . . violate[d] the Fifth and Eighth Amendments. op. at *1. Mr. Walker argued that 924(c)'s sentencing scheme violated due process and the separation of powers by limiting a court's sentencing discretion and preventing individualized sentencing. Reaffirming its decision in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2006), the Court dismissed this claim, noting again that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." op. at *3. The Court also reaffirmed that "there is no due process right to individualized sentencing." Id.
Mr. Walker also argued his sentence violated equal protection in that it was irrational when compared with the punishments for other more serious federal crimes. Specifically, he noted that his sentence for offenses involving only the potential for violence was more severe than some sentences for offenses involving actual violence. The court dismissed this argument noting that the potential sentences for the referenced violent offenses could also be longer than the one Mr. Walker received.
Mr. Walker also argued that his sentence was irrational because 924(c)'s scheme of escalating sentences for subsequent convictions failed to differentiate between a true "recidivist" and a first time offender who is convicted all at once of more than one 924(c) offense. The Court dismissed this claim, noting that the Supreme Court's decision in Deal v. United States, 508 U.S. 129 (1993), held that 924(c)'s consecutive sentencing provision need not be limited to "recidivists."
Mr. Walker next argued that his sentence constituted cruel and unusual punishment. Applying the three part test set out in Solem v. Helm, 463 U.S. 277 (1983), for determining Eighth Amendment violations, the Court explained that the first step - a disproportion between "the gravity of the offense and the harshness of the penalty" - acts as a gateway, and if the first step does not exist there can be no Eighth Amendment violation. op. at ** 7-8. Noting that it must "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes," the Court found that the relationship between the harsh penalties under 924(c) and Congress' purpose for the penalties (to protect society "from violent criminals who repeatedly demonstrate a willingness to employ deadly weapons") was reasonable. op. at *9. Thus, the Court found that Mr. Walker's sentence was not grossly disproportionate from the gravity of his crimes, and accordingly found no Eighth Amendment violation.
Finally, Mr. Walker argued that 924(c)'s mandate of consecutive 25-year sentences conflicts with the parsimony clause in 18 U.S.C. § 3553(a) that courts "impose a sentence sufficient, but not greater than necessary." Based on this conflict, Mr. Walker argued that the rule of lenity mandated a lower sentence. The Court dismissed this claim, explaining that the rule lenity only applies where there is doubt about a statute's scope and that there was no doubt about the scope of 924(c).
Tuesday, January 16, 2007
Third Circuit Blog
Third Circuit Blog
In US v. Williams, 2007 WL 14684 (C.A.3(Pa.)), No. 05-4292, filed 1/4/07, the 3d Circuit reiterated the standard for when double jeopardy bars a retrial following a government-provoked mistrial. The district court had granted a mistrial for prosecutorial misconduct (after the prosecutor questioned the defendant about prior convictions despite the court's order not to do so) and then granted the defendant's motion to dismiss the indictment on double jeopardy grounds after finding that the prosecutor intended to provoke the mistrial. The 3d Circuit disagreed, finding that the record evidence did not sufficiently establish that the government intended to goad the defendant into requesting a mistrial. It reversed and remanded for a new trial.
In US v. Williams, 2007 WL 14684 (C.A.3(Pa.)), No. 05-4292, filed 1/4/07, the 3d Circuit reiterated the standard for when double jeopardy bars a retrial following a government-provoked mistrial. The district court had granted a mistrial for prosecutorial misconduct (after the prosecutor questioned the defendant about prior convictions despite the court's order not to do so) and then granted the defendant's motion to dismiss the indictment on double jeopardy grounds after finding that the prosecutor intended to provoke the mistrial. The 3d Circuit disagreed, finding that the record evidence did not sufficiently establish that the government intended to goad the defendant into requesting a mistrial. It reversed and remanded for a new trial.
Tuesday, January 02, 2007
Cross Examination: Prosec can't ask Def if police are lying
In US v. William Harris, No. 05-2016 (3d Cir. 12/29/06), the 3rd Circuit held as a matter of first impression in the Circuit that "asking one witness whether another is lying is inappropriate." But since there was no objection in this case to the prosecutor's questions of defendant regarding whether the police witnesses were lying, the issue was reviewed for plain error. Since the Circuit had not yet ruled until this case, the error was not "plain." Nearly all other circuits have ruled that such questions are improper and may constitute reversible error if a timely objection is made.
These sorts of cross-examinantion questions are particularly common whenever a defendant testifies. Thus, in light of Harris, it is now especially important to object anytime the prosecutor asks the defendant (or any other defense witness) if the police witnesses must be lying.
These sorts of cross-examinantion questions are particularly common whenever a defendant testifies. Thus, in light of Harris, it is now especially important to object anytime the prosecutor asks the defendant (or any other defense witness) if the police witnesses must be lying.
Sentencing and the Parsimony Provision
In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.
Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:
The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judges need only state adequate reasons for the sentence, give due consideration to the 3553(a) factors, and consider any arguments properly presented by the parties which have legal merit and a factual basis.
As Prof. Berman aptly sums it up in his blog (click here): "So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?"
On the other hand, note that this issue was not expressly raised before the sentencing court, and thus the review before the Circuit was for plain error. The parsimony provision argument may fare better if expressly raised legally and factually before the sentencing court, since then it is an argument "properly presented by the part[y] which [has] legal merit and a factual basis in the record." For this reason, defense counsel should certainly continue to press this argument in the district courts.
Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this
subsection [which lists the four basic purposes of sentencing].
The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judges need only state adequate reasons for the sentence, give due consideration to the 3553(a) factors, and consider any arguments properly presented by the parties which have legal merit and a factual basis.
As Prof. Berman aptly sums it up in his blog (click here): "So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?"
On the other hand, note that this issue was not expressly raised before the sentencing court, and thus the review before the Circuit was for plain error. The parsimony provision argument may fare better if expressly raised legally and factually before the sentencing court, since then it is an argument "properly presented by the part[y] which [has] legal merit and a factual basis in the record." For this reason, defense counsel should certainly continue to press this argument in the district courts.
Fraud - Insufficiency of Evidence
In US v. Aimee Jones, No. 05-4898 (12/28/06), the 3d Circuit reversed the defendant's conviction for health care fraud (18 usc 1347(2)), finding that the evidence was insufficient. The Court ruled that although the government may well have established that defendant stole money from the federally funded methadone clinic where she worked, the government did not establish that defendant used false or fraudulent representations to get the money.
Defendant's role as a clerk in the clinic was to collect fees for services provided. Evidently she kept some of the fees instead of depositing them. But these acts did not involve any misrepresentation, and nothing defendant did affected the delivery of or payment for the health care services. In the absence of any such evidence, the elements of health care fraud were not established. To read the health care fraud statute any more broadly than this would be to allow it to cover simple theft, which is already covered by a separate statute. Statutes should not be read in a manner that would render other statutes superfluous.
Defendant's role as a clerk in the clinic was to collect fees for services provided. Evidently she kept some of the fees instead of depositing them. But these acts did not involve any misrepresentation, and nothing defendant did affected the delivery of or payment for the health care services. In the absence of any such evidence, the elements of health care fraud were not established. To read the health care fraud statute any more broadly than this would be to allow it to cover simple theft, which is already covered by a separate statute. Statutes should not be read in a manner that would render other statutes superfluous.
Ineffective Assistance of Appellate Counsel
In Wright v. Vaughn, No 04-3457 (3d Cir. 12/26/06), involving a 2254 petition challenging a state court conviction, the 3rd Circuit addressed a "layered" ineffectiveness claim: whether appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in not calling defendant's girlfriend as an alibi witness.
The Court ruled that appellate counsel was not ineffective since appellate counsel may have concluded that trial counsel had strategic reasons for not calling the witness. These reasons could have included the fact that as defendant's girlfriend, the witness was not unbiased, that she had a long history of crimen falsi offenses, and that after defendant's arrest, she never went to the police to tell them defendant could not have committed the murder.
The Court also rejected Wright's claim that he was denied his 6th Amendment right to confront witnesses because the district court disallowed cross-examination tending to show that others besides Wright had an interest in killing the deceased. The Court found that although the exclusion of the evidence was error, it was harmless since much of this evidence came in through other means. The Court thus affirmed the denial of the habeas petition.
The Court ruled that appellate counsel was not ineffective since appellate counsel may have concluded that trial counsel had strategic reasons for not calling the witness. These reasons could have included the fact that as defendant's girlfriend, the witness was not unbiased, that she had a long history of crimen falsi offenses, and that after defendant's arrest, she never went to the police to tell them defendant could not have committed the murder.
The Court also rejected Wright's claim that he was denied his 6th Amendment right to confront witnesses because the district court disallowed cross-examination tending to show that others besides Wright had an interest in killing the deceased. The Court found that although the exclusion of the evidence was error, it was harmless since much of this evidence came in through other means. The Court thus affirmed the denial of the habeas petition.
Wednesday, December 13, 2006
Supervised Release - Consecutive sentences allowed upon revocation
In US v. Joseph Dees, No 05-4949 (Nov. 8, 2006), the Circuit joined with six other circuits in ruling that under 18 usc sect 3584(a), a district court may "impose consecutive terms of imprisonment upon revocation of supervised release -- even when the sentences for the underlying crimes ran concurrently."
Dees had pleaded guilty on three separate dates to three separate offenses. He was sentenced, however, for all 3 cases at the same time by one judge. The sentence was 51 months in prison and 3 years supervised release on each of three separate convictions to run concurrently. Dees served his sentence and upon release accumulated multiple violations of his release conditions. At a violation hearing, the judge revoked supervised release and imposed 24 months in prison on each of the three supervised release terms, to run consecutively, for a total of 72 months. The Circuit found that nothing in the statute precludes such consecutive sentences upon violation, even though the original terms of supervised release ran concurrently.
Dees had pleaded guilty on three separate dates to three separate offenses. He was sentenced, however, for all 3 cases at the same time by one judge. The sentence was 51 months in prison and 3 years supervised release on each of three separate convictions to run concurrently. Dees served his sentence and upon release accumulated multiple violations of his release conditions. At a violation hearing, the judge revoked supervised release and imposed 24 months in prison on each of the three supervised release terms, to run consecutively, for a total of 72 months. The Circuit found that nothing in the statute precludes such consecutive sentences upon violation, even though the original terms of supervised release ran concurrently.
Third Circuit finds unlimited "but for" theory of restitution calculation erroneous; reiterates admissibility of custom & practice testimony
On December 12, 2006, the Third Circuit ruled in United States v. Fallon, Case No. 03-4184, that awarding restitution owed under the Mandatory Victims Resolution Act ("MVRA") pursuant to a theory of unlimited "but for" causation is error requiring a new restitution hearing. The Third Circuit also held that the exclusion of testimony about industry custom and practice was error as a matter of law, but that such error was harmless in this case.
At the restitution hearing, the district court found by a preponderance that American Business Leasing ("ABL"), which had purchased microdermabraders from Mr. Fallon’s company and then leased the devices to doctors, would not have purchased the devices but for Mr. Fallon’s forgery of the FDA approval letter that Mr. Fallon provided to ABL during their negotiations. The district court consequently found that all of ABL’s losses from unpaid lease payments were caused by Mr. Fallon’s misrepresentation. It assessed restitution of over $55,000 ($125,000 in unpaid lease payments, minus about $30,000 for paid lease payments and $40,000 for the value of the devices owned by ABL).
On appeal, the Third Circuit vacated this award as erroneous and remanded the case for a new restitution hearing. The Third Circuit ruled that while "a . . . rebuttable inference arises that subsequent losses suffered by the victim are sufficiently linked to the underlying fraud to support an award of restitution" where a "transaction was consummated due to [the defendant’s] fraud," the argument that no loss would have occurred but for the fraud is insufficient to bear the government's burden of showing direct causation of the harm where, as here, the defendant rebuts the presumption with evidence that the loss occurred for reasons unrelated to the fraud. Mr. Fallon showed that at least $34,000 of ABL’s loss arose when two doctors defaulted on their lease payments for reasons unrelated to the fraud. One doctor filed for bankruptcy. The other passed away.
The Third Circuit also reiterated in this opinion that "[t]his court has consistently allowed ‘testimony concerning business customs and practices,'" and that "a witness need not represent an entire industry in order to have sufficient knowledge of that industry’s customs and practices so as to render substantial assistance to the jury." The Court consequently found the district court's exclusion of Mr. Fallon's proffered custom and practice testimony to be erroneous. However, it went on to hold that such error was harmless in this case because Mr. Fallon was able to impeach the testimony of the government witness who testified that the FDA approval letter was a required part of the negotiations, and because another witness testified that he had never required such approval letters from device manufacturers during his fifteen years in the leasing industry.
At the restitution hearing, the district court found by a preponderance that American Business Leasing ("ABL"), which had purchased microdermabraders from Mr. Fallon’s company and then leased the devices to doctors, would not have purchased the devices but for Mr. Fallon’s forgery of the FDA approval letter that Mr. Fallon provided to ABL during their negotiations. The district court consequently found that all of ABL’s losses from unpaid lease payments were caused by Mr. Fallon’s misrepresentation. It assessed restitution of over $55,000 ($125,000 in unpaid lease payments, minus about $30,000 for paid lease payments and $40,000 for the value of the devices owned by ABL).
On appeal, the Third Circuit vacated this award as erroneous and remanded the case for a new restitution hearing. The Third Circuit ruled that while "a . . . rebuttable inference arises that subsequent losses suffered by the victim are sufficiently linked to the underlying fraud to support an award of restitution" where a "transaction was consummated due to [the defendant’s] fraud," the argument that no loss would have occurred but for the fraud is insufficient to bear the government's burden of showing direct causation of the harm where, as here, the defendant rebuts the presumption with evidence that the loss occurred for reasons unrelated to the fraud. Mr. Fallon showed that at least $34,000 of ABL’s loss arose when two doctors defaulted on their lease payments for reasons unrelated to the fraud. One doctor filed for bankruptcy. The other passed away.
The Third Circuit also reiterated in this opinion that "[t]his court has consistently allowed ‘testimony concerning business customs and practices,'" and that "a witness need not represent an entire industry in order to have sufficient knowledge of that industry’s customs and practices so as to render substantial assistance to the jury." The Court consequently found the district court's exclusion of Mr. Fallon's proffered custom and practice testimony to be erroneous. However, it went on to hold that such error was harmless in this case because Mr. Fallon was able to impeach the testimony of the government witness who testified that the FDA approval letter was a required part of the negotiations, and because another witness testified that he had never required such approval letters from device manufacturers during his fifteen years in the leasing industry.
Another guideline sentence affirmed, more specific reasons for sentence not required
On November 28, 2006, the Third Circuit issued another precedential decision affirming a within-guideline sentence. In United States v. Lloyd, No. 05-4241, the defendant pled guilty to a drug conspiracy and faced a range of 168-210 months. The district court imposed 168 months and, after a Booker remand, imposed the same sentence. The court reaffirmed its practice of applying plain error review to an unpreserved argument that the district court failed in its procedural approach to sentencing. While counsel may have strategic reasons for not making certain objections, any hope of meaningful review on these questions requires an objection in the district court. The court found no plain error in the failure to give more specific reasons, stating that "a court can provide concrete reasons for its sentence without speaking at great length." Also, the court found no plain error in failure to give greater weight to the defendant's post-sentencing rehabilitation efforts, concluding that such efforts will only be relevant in unusual circumstances given the unfair disadvantage of defendants who have no opportunity to come back for resentencing. The court also concluded that the sentence was reasonable.
Tuesday, December 12, 2006
3d Cir emphasized adherence to Gunter in finding sentence reasonable
The Third Circuit in United States v. Charles, No. 05-5326, emphasized reliance on the three-step sentencing procedure articulated in United States v. Gunter, No. 05-2592. In rejecting appellant's arguments that his sentence was unreasonable, the Court held that the district court complied with steps one and three by determining the applicable guideline range and discussing the parties' arguments regarding his background and personal circumstances. Analogizing to United States v. King, No. 05-1728, the Court determined that the record supported a maximum guideline sentence of 46 months. The Court rejected Charles's parsimony argument that the district court was required to note why a low-end guideline sentence was insufficient to meet section 3553(a)(2)'s penological goals, and his argument regarding unwarranted disparities, stating that any alleged disparities here were non-statutory and resulted from the district court's reasonable exercise of discretion after considering the requisite three steps for calculating sentences.
Friday, December 08, 2006
Letter classification of offense under § 3559(a) does not require reference to guidelines
The Third Circuit in United States v. Lovett, No. 05-4171 (3d Cir. Nov. 6, 2006), rejected the contention that under § 3559(a), the "maximum term of imprisonment authorized" is based on the maximum term of imprisonment authorized by the Guidelines, rather than the statute of conviction. Lovett received a 16-month sentence for his conviction of making a false statement to a federally licensed firearms dealer in violation of 18 U.S.C. § 922(a)(6), and, on appeal, challenged only the imposition of his three-year term of supervised release. Since his range would have been 12-18 months, he argued, he would have thus been classified as a Class E felony, for which the term of supervised release would not have exceeded one year. The Third Circuit rejected the argument, reasoning that the classification process in § 3559 requires, first, identifying the offense of conviction, then, if a letter grade has not been assigned, looking to the "maximum term of imprisonment authorized." Because § 3559(a) refers to the "section defining" the criminal offense, the Court concluded that this can only refer to the Federal Crimes Code, not the sentencing guidelines.
Monday, December 04, 2006
Mummert Survives Booker, but Sentences Require Minimal Explanation
The Third Circuit has carried its rule requiring remand of ambiguous departure rulings forward into the post-Booker world. The doctrine, originating in United States v. Mummert, 34 F.3d 201 (3d Cir. 1994), stemmed from the need to determine whether the appellate court had jurisdiction to hear an appeal challenging a Guidelines sentence--legal departure denials were reviewable while discretionary denials were not. Since sentencing courts must still rule on departure motions in the Third Circuit, and since reviewability of such rulings still turns on their legal or discretionary nature, Mummert continues to serve a purpose, the Court held in United States v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006).
Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the government's opposition to the motion below as appealing to the district court's discretion. That is a controversial conclusion, as the government below and on appeal argued that the facts presented by Mr. Jackson do not "rise to the level" needed for a departure---seemingly a legal argument.
Jackson likewise seems to confirm that the Third Circuit will approve very "bare bones" explanations of sentences by district courts. Here, the sentencing court cited Mr. Jackson's criminal history and expressly rejected one of his mitigation arguments in imposing a Guidelines sentence, but was silent as to many other mitigating factors presented as well as to the departure motion. That explanation was upheld as sufficient.
A rehearing petition is pending in Jackson, asking the Court, among other things, to establish a supervisory rule requiring express and clear departure rulings, and to require district courts, as part of the explanation of sentence, to state why they reject any non-frivolous sentencing arguments made by the parties.
UPDATE: Rehearing has been denied.
Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the government's opposition to the motion below as appealing to the district court's discretion. That is a controversial conclusion, as the government below and on appeal argued that the facts presented by Mr. Jackson do not "rise to the level" needed for a departure---seemingly a legal argument.
Jackson likewise seems to confirm that the Third Circuit will approve very "bare bones" explanations of sentences by district courts. Here, the sentencing court cited Mr. Jackson's criminal history and expressly rejected one of his mitigation arguments in imposing a Guidelines sentence, but was silent as to many other mitigating factors presented as well as to the departure motion. That explanation was upheld as sufficient.
A rehearing petition is pending in Jackson, asking the Court, among other things, to establish a supervisory rule requiring express and clear departure rulings, and to require district courts, as part of the explanation of sentence, to state why they reject any non-frivolous sentencing arguments made by the parties.
UPDATE: Rehearing has been denied.
Friday, October 20, 2006
18 U.S.C. § 922(a)(3) conviction does NOT constitute "aggravated felony" for removal purposes
In Joseph v. Attorney General, Nos. 05-1047, 05-2889 (3d Cir. Oct. 2, 2006), the Third Circuit ruled that a conviction under 18 U.S.C. § 922(a)(3), which makes it illegal for any person other than a licensed manufacturer, dealer, or collector to transport into or receive in the State where he resides any firearm purchased or otherwise obtained by such person outside that state, does not constitute an aggravated felony for removal purposes because the offense did not include any trafficking element, i.e., any element of dealing in firearms or any intent to sell or otherwise distribute the firearms.
Sentences for Class B and C misdemeanors must be reviewed under pre-Guidelines standard applicable to those offenses
Grand jury target Jelanie Solomon was convicted of criminal contempt for failing to provide handwriting exemplars ordered by the district court. He was sentenced to 5 months imprisonment on the contempt conviction, thus classifying the conviction as a Class B misdemeanor. On appeal, the parties disagreed over the standard of review to be applied. The government argued that the sentence should be reviewed for an abuse of discretion, while Solomon argued that his sentence must be reviewed for "reasonableness" under United States v. Booker, 543 U.S. 220 (2005). The Third Circuit noted that while the Guidelines were still mandatory, the circuits were divided on the standard of appellate review. In re Solomon, Nos. 06-2819, 06-2820 (3d Cir. Oct. 2, 2006). Upon present consideration, the Court found that the exclusion of Class B and C misdemeanors from the Guidelines provisions was intended to place those offenses entirely outside the statutory scheme, including the appellate review provisions contained in 18 U.S.C. § 3742(e). Accordingly, the Court held that appellate review of sentences imposed for Class B and C misdemeanors must be conducted under the pre-Guidelines standard applicable to those offenses, rather than the reasonableness test set forth in Booker. The standard of review applicable to criminal contempt offenses was abuse of discretion. The Court ultimately found that the five month sentence imposed in Solomon's case was not an abuse of discretion.
By ruling in this fashion, the Third Circuit noted that it need not contend with a question currently dividing the other circuits - namely, the continued viability of the "plainly unreasonable" standard of review.
The Court made two additional rulings in this case. First, it concluded that the government made a sufficient preliminary showing that the handwriting exemplars were relevant to the grand jury's investigation to warrant contempt charges. Second, the Court ruled that the district court's order denying Solomon's motion to quash search warrant for his blood and saliva did not qualify for interlocutory review under the collateral order doctrine.
By ruling in this fashion, the Third Circuit noted that it need not contend with a question currently dividing the other circuits - namely, the continued viability of the "plainly unreasonable" standard of review.
The Court made two additional rulings in this case. First, it concluded that the government made a sufficient preliminary showing that the handwriting exemplars were relevant to the grand jury's investigation to warrant contempt charges. Second, the Court ruled that the district court's order denying Solomon's motion to quash search warrant for his blood and saliva did not qualify for interlocutory review under the collateral order doctrine.
Monday, October 02, 2006
Troubling credibility ruling and Harris still good law
In U.S. v. Williams, No. 04-4268 (9/27/06), the defendant was on trial on drug conspiracy and weapons charges. The government’s central witness, Carter, asserted on cross-examination that he (Carter) had never committed murder. Defense counsel sought to impeach Carter as to this assertion. Counsel advised the court that a confidential witness had told an ATF agent that he had heard from another person that Carter had stabbed an individual to death in Philadelphia. The district court prohibited the cross examination, ruling that under Fed. R. Evid. 608(b) the fact that Carter committed murder was not probative of truthfulness or untruthfulness, and also that the weak evidence that Carter committed murder should be excluded under Rule 403. The Third Circuit (Judge Fuentes) found no abuse of discretion: "Even if the evidence that Carter committed murder had been strong, it was not clearly relevant to Carter’s truthfulness as a witness and had a strong potential to prejudice the jury." If the witness had not asserted on direct examination that he had never committed murder, this logic holds up. However, in light of the witness’s affirmative assertion on direct, the ruling is more troubling. Rule 608(b) concerns confrontation of a witness with a prior act that demonstrates the witness’s character for truthfulness or untruthfulness, and that therefore in and of itself tends to show that the witness lacks or has credibility. But in Williams the defense was not trying to show that because Carter was a murderer, he was also a liar. Rather, the purpose of the cross examination was to contradict Carter’s direct testimony that he had never committed a murder. Perhaps future application of the opinion will turn on the extremely weak evidence showing that Carter committed the murder.
The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.
The court also rejected, under a plain error standard of review, the defense challenges to the multiple/single conspiracy instructions and sufficiency of the evidence. As to the sentence, the court remanded the conspiracy sentence because the original sentencing hearing took place prior to Booker. The court upheld the mandatory sentence under 18 U.S.C. § 924(c), which had been enhanced from 5 to 10 years based on the judge’s finding at sentencing by a preponderance that the firearm had been discharged, ruling that Harris is still good law and that therefore the constitution does not prohibit judicial fact-finding at sentencing within the maximum sentence authorized by the jury’s verdict.
Win one and lose one in capital cases in Delaware
In a pair of Delaware capital habeas appeals, on September 28, 2006, the panel of Judges Rendell, Ambro and Fuentes addressed the death penalties imposed on two codefendants convicted in the 1992 murder of Wilson Mannon. Another codefendant did not appeal his death sentence and was executed in 1995. Time will tell which of these two opinions, the one granting penalty phase relief or the one denying it, has more far-reaching impact.
The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defendant, the defendant’s criminal history and history of assaultive behavior, and the traumatic death of the defendant’s infant son. The defendant also allocuted on similar topics. The jury recommended death by a vote of 7-5. Post-conviction counsel uncovered extensive mitigating evidence that had not been discovered by trial counsel, including extensive physical abuse of the defendant by his father, that the defendant’s mother drank heavily during her pregnancy with him, that the defendant suffered two head traumas as a child, that he was placed in learning disabled classes at the age of ten, that he was placed with foster families and shelters and that a foster mother sexually abused him, and that the defendant had abused alcohol and drugs since adolescence. Writing for the panel, Judge Ambro concluded that the state courts’ ruling that trial counsel’s performance was adequate was an objectively unreasonable application of Strickland. Citing the ABA standards applicable to capital counsel, the court refused to accept trial counsel’s explanation that they did not investigate further based on their discussions with the defendant’s mother, because counsel had insufficient evidence from which to conclude that further investigation would prove futile. Also, the court rejected trial counsel’s asserted strategy to argue innocence to the jury during the penalty phase rather than mitigation. They had abandoned that approach at the time by admitting the defendant’s guilt, prompting the court to observe that their strategic decision "resembles more of a post-hoc rationalization . . . than an accurate" account of their conduct at the time. The panel further found the inadequate representation prejudicial, particularly in light of the fact that there were critical facts such as neurological damage the jury never heard, and the close jury vote (7-5).
In contrast, the panel denied sentencing phase relief in Shelton v. Carroll, No. 04-9004 (9/28/06). During the penalty phase the defendant first asked to proceed pro se and insisted that no mitigation evidence be presented. Following lengthy colloquies with both the defendant and his counsel in which they advanced the defendant's strategic decision to demonstrate to the jury that the defendant would not "beg for my life," defense counsel proceeded based upon the defendant’s specific instructions as to which mitigation witnesses to call and what questions to ask them. Counsel called three siblings who testified about the alcohol abuse, anger and violence in the household growing up, the defendant’s difficulties in school and in their neighborhood, and that he was a loving brother. In the state post-conviction proceeding, the defense called a clinical social worker who interviewed several family members and others who knew the defendant and reviewed court, juvenile court and psychiatric records, and who opined that the defense presentation in mitigation was "seriously deficient." Writing for the panel, Judge Fuentes concluded that counsel’s representation was not ineffective. Despite the same ABA guidelines cited in Outten, the court concluded that it was the defendant himself whose "deliberate and strategic determination that he ought not present mitigating evidence" that led to counsel’s performance. Further, because much of the information that was contained in the reports was presented through the siblings’ testimony, the defendant was unable to show prejudice (despite the fact that the jury had recommended death by a vote of 8 to 4). The defendant also claimed that he was denied his constitutional right to allocution in the sentencing phase. The trial judge had not permitted him to allocute as to the facts of the case (he maintained his innocence), and he had not testified at trial. The Third Circuit observed that the Supreme Court has never held that there is a constitutional right to allocution. The defense argued that Lockett v. Ohio, 438 U.S. 586 (1986), and Eddings v. Oklahoma, 455 U.S. 104 (1982), required that he be permitted to allocute with respect to the offense. The court instead concluded that under Oregon v. Guzek, 126 S. Ct. 1226 (2006), a defendant has a right to present evidence as to how, not whether, the crime was committed, and because he had not testified at trial, the defendant did not have a right to present new evidence inconsistent with guilt during the penalty phase.
Further pondering will reveal additional distinguishing features between these two cases, but two come to mind at first glance. First, post-conviction counsel in Outten was able to point to specific mitigating facts (such as head injuries) that were apparent in the defendant’s easily accessible records and that were not touched upon by the witnesses who testified in the penalty phase. Second, in Shelton the defendant and his counsel were extensively colloquied on the record about their decision, which they characterized at the time (rather than post-hoc) as strategic, not to present mitigating evidence.
The panel granted penalty phase relief in Outten v. Kearney, No. 04-9003 (9/28/06). In opening statement during the penalty phase, counsel stated that they were there "to beg for the life" of their client. They called six witnesses, including the defendant’s mother, three siblings, a friend and a former girlfriend. Counsel did not undertake any mitigation investigation other than talking to family. The witnesses testified about the defendant’s care for his father during his final illness, how his father had taken out his frustrations on the defendant, the defendant’s criminal history and history of assaultive behavior, and the traumatic death of the defendant’s infant son. The defendant also allocuted on similar topics. The jury recommended death by a vote of 7-5. Post-conviction counsel uncovered extensive mitigating evidence that had not been discovered by trial counsel, including extensive physical abuse of the defendant by his father, that the defendant’s mother drank heavily during her pregnancy with him, that the defendant suffered two head traumas as a child, that he was placed in learning disabled classes at the age of ten, that he was placed with foster families and shelters and that a foster mother sexually abused him, and that the defendant had abused alcohol and drugs since adolescence. Writing for the panel, Judge Ambro concluded that the state courts’ ruling that trial counsel’s performance was adequate was an objectively unreasonable application of Strickland. Citing the ABA standards applicable to capital counsel, the court refused to accept trial counsel’s explanation that they did not investigate further based on their discussions with the defendant’s mother, because counsel had insufficient evidence from which to conclude that further investigation would prove futile. Also, the court rejected trial counsel’s asserted strategy to argue innocence to the jury during the penalty phase rather than mitigation. They had abandoned that approach at the time by admitting the defendant’s guilt, prompting the court to observe that their strategic decision "resembles more of a post-hoc rationalization . . . than an accurate" account of their conduct at the time. The panel further found the inadequate representation prejudicial, particularly in light of the fact that there were critical facts such as neurological damage the jury never heard, and the close jury vote (7-5).
In contrast, the panel denied sentencing phase relief in Shelton v. Carroll, No. 04-9004 (9/28/06). During the penalty phase the defendant first asked to proceed pro se and insisted that no mitigation evidence be presented. Following lengthy colloquies with both the defendant and his counsel in which they advanced the defendant's strategic decision to demonstrate to the jury that the defendant would not "beg for my life," defense counsel proceeded based upon the defendant’s specific instructions as to which mitigation witnesses to call and what questions to ask them. Counsel called three siblings who testified about the alcohol abuse, anger and violence in the household growing up, the defendant’s difficulties in school and in their neighborhood, and that he was a loving brother. In the state post-conviction proceeding, the defense called a clinical social worker who interviewed several family members and others who knew the defendant and reviewed court, juvenile court and psychiatric records, and who opined that the defense presentation in mitigation was "seriously deficient." Writing for the panel, Judge Fuentes concluded that counsel’s representation was not ineffective. Despite the same ABA guidelines cited in Outten, the court concluded that it was the defendant himself whose "deliberate and strategic determination that he ought not present mitigating evidence" that led to counsel’s performance. Further, because much of the information that was contained in the reports was presented through the siblings’ testimony, the defendant was unable to show prejudice (despite the fact that the jury had recommended death by a vote of 8 to 4). The defendant also claimed that he was denied his constitutional right to allocution in the sentencing phase. The trial judge had not permitted him to allocute as to the facts of the case (he maintained his innocence), and he had not testified at trial. The Third Circuit observed that the Supreme Court has never held that there is a constitutional right to allocution. The defense argued that Lockett v. Ohio, 438 U.S. 586 (1986), and Eddings v. Oklahoma, 455 U.S. 104 (1982), required that he be permitted to allocute with respect to the offense. The court instead concluded that under Oregon v. Guzek, 126 S. Ct. 1226 (2006), a defendant has a right to present evidence as to how, not whether, the crime was committed, and because he had not testified at trial, the defendant did not have a right to present new evidence inconsistent with guilt during the penalty phase.
Further pondering will reveal additional distinguishing features between these two cases, but two come to mind at first glance. First, post-conviction counsel in Outten was able to point to specific mitigating facts (such as head injuries) that were apparent in the defendant’s easily accessible records and that were not touched upon by the witnesses who testified in the penalty phase. Second, in Shelton the defendant and his counsel were extensively colloquied on the record about their decision, which they characterized at the time (rather than post-hoc) as strategic, not to present mitigating evidence.
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