Third Circuit precludes § 3582(c) sentence reduction where sentence is stipulated in Rule 11 binding plea agreement.

In United States v. Sanchez, No. 08-1847 (3d Cir. April 3, 2009), a panel majority affirmed the District Court’s denial of Sanchez’s motion to reduce his sentence under 18 U.S.C. § 3582(c). Although the District Court's denial was based on determining that the offense of conviction carried a mandatory minimum sentence, the Court of Appeals affirmed the denial on an alternative ground that the District Court did not address: that Sanchez's sentence was the result of a Rule 11 binding plea agreement. Circuit Judge Roth dissented, reasoning that a defendant who agrees to a stipulated sentence in a binding plea agreement should – like a defendant sentenced after a jury verdict – be eligible for a sentence reduction.

Sanchez went to trial on a seven-count indictment alleging drug trafficking and firearm possession charges. During trial, Sanchez and the Government entered into an oral binding plea agreement in which Sanchez agreed to plead guilty to one count of criminal conspiracy to distribute drugs, under 21 U.S.C. § 846. In the change of plea hearing, counsel represented that this plea agreement included three key stipulations: (1) that the quantity of drugs was "between 35 and 50 grams of crack cocaine"; (2) that Sanchez had no prior criminal record, and that no "enhancements . . . would apply to this particular sentence"; and (3) that the sentence would be 120 months.

Under the then-applicable 2001 edition of the Sentencing Guidelines manual, the stipulated drug quantity of "at least 35 grams but less than 50 grams of cocaine base" led to a base offense level of 30; with the agreed criminal history category I, Sanchez’s Guidelines sentencing range would have been 97-121 months – encompassing the stipulated sentence of 120 months. But despite the plea agreement’s stipulation as to drug weight, the Probation Office found a drug weight of 50 or more grams of crack cocaine, which led the Probation Office to conclude: (1) the Guidelines sentencing range was 121-151 months; and (2) 21 U.S.C. § 846, for that drug weight, carried a mandatory minimum sentence of 120 months.

At sentencing, the District Court accepted the Probation Office’s factual findings and Guidelines calculations. Based on counsels’ oral representations of the terms of the binding plea agreement, the District Court accepted the oral plea agreement as binding under Rule 11, and imposed the stipulated prison sentence of 120 months.

Then, in 2008 – after the Sentencing Commission retroactively amended U.S.S.G. § 2D1.1 to reduce the base offense levels for crack cocaine offenses by two offense levels – Sanchez filed a motion for sentence reduction under 18 U.S.C. § 3582(c). The District Court denied the motion on the ground that because Sanchez’s conviction was for distributing 50 grams or more of cocaine, which carried a mandatory minimum sentence of 120 months, he was not eligible for sentence reduction under §3582(c).

On appeal, the Court of Appeals applied the de novo standard of review to the District Court’s ruling that it lacked authority to reduce Sanchez’s sentence.

The Court of Appeals considered, first, Sanchez’s argument that the District Court erred because Sanchez’s conviction did not carry a mandatory minimum sentence, since the plea agreement stipulated drug weight as under 50 grams. The Court of Appeals acknowledged that Sanchez’s argument had "some logical force" and factual support in the record, noting specifically that the Government’s brief had conceded that it was "unclear . . . whether Sanchez was subject to a [ten]-year mandatory minimum sentence . . . ." But the Court chose not to rule on this argument, instead affirming the District Court’s denial on an alternative ground.

Citing decisions in the Sixth, Seventh, and Tenth Circuits – and explicitly noting a Fourth Circuit decision to the contrary, United States v. Dews, 551 F.3d 204 (4th Cir. 2008) – the Court of Appeals ruled that the 120-month stipulated sentence precluded relief under § 3582(c). Circuit Judge Jordan’s opinion considered but rejected Sanchez’s argument that the stipulated sentence was "based on" the Sentencing Guidelines for purposes of a § 3582(c) motion, as the parties agreed to – and the District Court accepted – the 120-month sentence specifically because it fell within the properly calculated Guidelines range. In a concurrence, Circuit Judge Rendell opined that considering whether the stipulated sentence was "based on" the Guidelines was unnecessary: "[t]he agreement is the agreement, binding on the District Court without exception applicable here."

Circuit Judge Roth dissented, observing that the majority’s decision permitted the logical inconsistency of allowing resentencing under § 3582(c) for criminal defendants who go to trial and are convicted by a binding jury verdict, but not those who save judicial and governmental resources by entering into a binding plea agreement. Judge Roth, finding the Fourth Circuit’s decision in Dews persuasive, would permit defendants sentenced under binding plea agreements to move for resentencing based on a Guidelines change, as a binding plea agreement "does not necessarily include the waiver of a defendant’s right to seek resentencing . . . . if at some point in the future the Guideline on which his sentence is based changes. Such a waiver must be specifically bargained for, just like the waiver of a defendant’s right of appeal . . . ."

According to Judge Roth, eligibility for § 3582(c) relief is especially compelling if the Guidelines change would – as here – "affect the basic elements that led up to the final plea agreed upon." Judge Roth credited Sanchez’s argument that, based on a fair reading of the record, "it strains credulity to imagine that [Sanchez’s] plea was not based on the Guidelines." Judge Roth noted that when a defendant considers pleading guilty, "the sentencing consequences, including the impact of the Sentencing Guidelines, are a crucial element in reaching the bargain," and that "[i]t requires only the smallest inference to determine [that the] . . . Guidelines sentence range provided the boundaries of what would be acceptable to both the Government and Sanchez, resulting in their selection of 120 months in their plea agreement."

SCOTUS reverses Third Circuit, reinstating mandatory McNabb-Mallory rule

In a 5-4 decision released today, the Supreme Court reaffirmed the McNabb-Mallory rule by holding that confessions taken more than six hours after a federal arrest, but before the defendant is presented to a magistrate judge, must generally be suppressed -- even if they are voluntarily given. The Third Circuit, somewhat reluctantly following its prior precedent on the issue, had held that McNabb-Mallory was abrogated by a federal statute (18 U.S.C. 3501) that makes voluntariness the sole criterion for the admissibility of a confession. Today's decision in Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009), reverses that judgment.

The Court ruled that Section 3501 merely modifies McNabb-Mallory by carving the first six hours after arrest from its ambit. Within six hours of arrest, voluntary confessions are admissible in federal court subject to the standard rules of evidence. Pre-presentment confessions taken more than six hours after arrest (or such reasonably longer time as may be necessitated by the logistics of transportation to the magistrate) must be suppressed unless the delay was "necessary" under the McNabb-Mallory case law. "Necessary" delays include such things as the unavailability of a magistrate, but not -- importantly -- delays for purposes of questioning the defendant or investigating crime.

The Court's decision today changes the law in most of the federal circuits, including the Third, in two important ways. First, it reaffirms that McNabb-Mallory is fully in effect beyond six hours of a federal arrest. Second, it clarifies that suppression under McNabb-Mallory is mandatory in cases of unnecessary delay -- most courts that had continued to apply McNabb-Mallory after the enactment of Section 3501 had held that suppression was ultimately at the discretion of the district court.

Historical perspective on McNabb-Mallory is provided here by Lyle Denniston at SCOTUSblog.

In a "close call," the Third Circuit finds reasonable suspicion to justify stop. Denial of Motion to Suppress affirmed.

In United States v. Mathurin, No. 07-4576 (D.VI 03/27/09), the Court of Appeals affirmed the district court’s denial of the Mathurin’s motion to suppress evidence.

ICE Agents received information from Border Agents that a "suspicious vessel" had departed Puerto Rico and was heading their way to St. Thomas. The boat was "suspicious" because it was described as a "yolla-type vessel, low to the water line" with a single occupant. The agent’s went to a marina and located the suspected boat. They learned from the marina workers that the boat arrived that day, that a man named Perez-Polanco piloted the boat, he rented the slip for the day, and left in a taxi to the nearest hotel with no luggage. Agent’s found the hotel where Perez-Polanco was staying and learned that he planned to leave the next day. They then ran a criminal background check and learned among other things that he had a prior conviction for possession of 6 kilograms of cocaine and a detention in the seizure of $260,000.

The agents conducted surveillance of his hotel room on the belief that a "drug transaction was imminent." Hours later they observed two individuals, one of whom was Mathurin, enter Perez-Polanco’s room with a light-colored plastic bag. A few minutes later they left the room without the plastic bag. Two hours later, Mathurin returned and entered Perez-Polanco’s room with another dark-colored plastic bag. And, a few minutes later, he left the room without the bag. Shortley thereafter, Perez-Polanco himself exited the room and got in the same vehicle as Mathurin. The agents then stopped the vehicle and ordered the three occupants, Mathurin, Perez-Polanco, and the driver, to exit. The agents arrested Mathurin and the driver (Perez-Polanco who initially fled on foot) and then found a backpack in the back seat with 2.2. kilograms of cocaine inside.

Once charged, Mathurin filed a motion to suppress. The district court ruled that the initial arrest of Mathurin was illegal but denied the motion concluding the agent’s had reasonable suspicion to stop the vehicle to "confirm or dispel" their suspicion of criminal activity and that the arrest of Perez-Polanco outside of the vehicle justified the search of its interior incident to his arrest.
On appeal, Mathurin argued only that the officers lacked reasonable suspicion as needed for a valid investigatory stop. In doing so he first argued the tip regarding the vessel was "unreliable" because it was unclear which federal agency provided the information. The Court disagreed and said regardless of what federal agency the tip derived from is inapposite to the weight the local authorities should have afforded it. Second, Mathurin argued the tip should be deemed anonymous. Again the Court disagreed holding that a tip from one federal agency to another "implies a degree of expertise and shared purpose in stopping illegal activity." Further that the tip itself was not the sole basis for reasonable suspicion, but rather the information the agents used to launch an investigation.

The Court then found reasonable suspicion. Specifically that, under the totality of the circumstances, the fact that the slip was rented for one day, the hotel room was reserved for one night, and that Perez-Palanco had a criminal history for drug distribution, coupled with the multiple visits to his hotel room by Mathurin who was carrying different plastic bags and leaving without. And the fact that Mathurin left the hotel room without Perez-Polanco justified a finding of reasonable suspicion. That each factor alone was insufficient to support reasonable suspicion but combined, reasonable suspicion existed. Of note, the Court on several occasions deferred to the "training and expertise" of the agents regarding their knowledge of local drug activity and looked at the situation from the agent's viewpoint as a means to tip the scales in favor of the Government in what was labeled a "close call."

Superior Court's rejection of IAC claim involved unreasonable application of Strickland & petitioner’s proffer entitled him to evidentiary hearing

In Siehl v. Grace, No. 07-1568, March 25, 2009, the Court of Appeals reversed the district court’s denial of Siehl’s § 2254 habeas petition and remanded for an evidentiary hearing.
Siehl was charged with homicide in state court. The prosecution’s case was based entirely on a fingerprint and bloodstain evidence recovered from the crime scene (the victim’s bathroom). A forensic expert was appointed to assist defense counsel and prepared a preliminary report which, among other things, indicated that the fingerprint was the defendant’s. The report did not, however, make any findings as to the bloodstain evidence and indicated the fingerprint could have been made before the crime occurred. The expert prepared no other reports and was not called to testify. At trial the Commonwealth rested on the fingerprint and the bloodstain evidence. Instead of calling an expert to challenge and/or rebut the Commonwealth’s case, the defense stipulated the print was Siehl’s and then presented an alibi evidence. Siehl was subsequently convicted of first degree murder.

On direct appeal, Siehl obtained new counsel who, in turn, failed to raise a claim of trial counsel’s ineffectiveness. The conviction was affirmed. Then, on PCRA, Siehl yet again obtained new counsel who raised both trial and appellate counsel’s ineffectiveness and requested an evidentiary hearing. The request was denied and the claim of trial counsel’s ineffectiveness deemed waived. The PCRA Court did, however, grant an evidentiary hearing on separate unrelated issues where Siehl attempted to present testimony from highly regarded forensic expert, Leon MacDonell. The Court refused to hear testimony from Professor MacDonnell but permitted an offer of proof via affidavit which opined that the fingerprint was not Siehl’s, that a Commonwealth’s fingerprint deterioration theory was incorrect, commented that the blood stain evidence came from the same source, and that the forensic expert retained by trial counsel was not qualified in this field. The Court denied relief. An appeal was taken to the Superior Court who affirmed. In doing so, the Court addressed the merits of trial counsel’s ineffectiveness and held that because Siehl did not deny the fingerprint was his, trial counsel had a reasonable basis for stipulating the fingerprint was his and that Siehl suffered no prejudice as a result. The Court also held the Siehl could not demonstrate prejudice for the failure to call a qualified forensic expert to assist at trial.

Siehl then instituted § 2254 proceedings. The District Court adopted the Magistrate Judge’s Report and Recommendation which recommended the denial of Siehl’s ineffectiveness claim and recommended the denial of a certificate of appealability (COA). The Third Circuit disagreed and granted a COA with respect to three issues involving ineffective assistance of counsel.
In their opinion, the Court set out to make two determinations: 1) whether the PA Superior Court’s rejection of Siehl’s IAC claims involved an unreasonable application of Strickland, and 2) if so, whether Siehl’s proffer of evidence entitled him to an evidentiary hearing. The Court ruled in the affirmative.

Specifically, as to the first determination, the Court held that "given the Commonwealth’s expected testimony" regarding their "core evidence" (i.e. the fingerprint evidence), defense counsel’s decision to stipulate that the fingerprint was Siehl’s "effectively admitted that he was the murderer." Therefore, the PA Superior Court’s application of Strickland and ultimate denial of the ineffectiveness claim thereon was not objectively reasonable.

As to the second determination, whether Siehl was entitled to an evidentiary hearing, the Court held that there was an insufficient record "upon which to evaluate trial counsel’s performance" yet that it must decide whether Siehl had "shown enough" to give him the opportunity to expand the record. This determination involves two issues: (1) whether AEDPA bars an evidentiary hearing under these circumstances; and (2) "if not, whether Siehl had proffered sufficient evidence to demonstrate that ‘a new hearing would have the potential to advance petitioner’s claim.’"

The Court determined as to the first issue that Siehl had diligently sought and was denied an evidentiary hearing on the relevant issues during PCRA proceedings. Consequently, the Court held this was a sufficient showing by Siehl because he "may be able to show" no waiver where appellant counsel was ineffective for failing to raise ineffectiveness of trial counsel on direct appeal.

As to the second issue, the Court also determined Siehl made a sufficient showing. Specifically, the Court held that he made a prima facie showing to entitle him to an evidentiary hearing where, as here, he was unable to establish the necessary records in the state courts through no fault of his own. That the MacDonnell report itself, if credited, would be enough to suggest he’d received ineffective assistance of counsel. The Court noted, that based on the current record, the strategic choices of counsel appear to have been made without a full investigation. Additionally, the Court held that Siehl made a prima facie showing that would enable him to demonstrate a reasonable probability that, but for the ineffectiveness of trial counsel, the result of his trial would have been different. That given the opportunity to undermine the Commonwealth’s scientific evidence would only bolster Siehl’s alibi defense. Reversed and remanded for an evidentiary hearing.

Where originally sentenced under career offender guideline, not entitled to two level reduction under Crack Amendment

In United States v. Mateo, No. 08-3249, March 24, 2009, the Court of Appeals joined four other Circuits in denying a motion to reduce sentence under 18 U.S.C. § 3582(c) where at the original sentencing, the defendant was sentenced under the career offender guideline.

Mateo was convicted of an offense involving crack cocaine. At his original sentencing, however, Mateo was sentenced as a career offender under USSG § 4B1.1. Then, in 2007, after the Sentencing Commission retroactively amended section § 2D1.1 lowering the base offense levels for crack cocaine offenses, Mateo filed a motion for a sentence reduction. He argued that, even though he was sentenced as a career offender under § 4B1.1, his sentence was "based on" § 2D1.1, and therefore entitled to a reduction. He also made arguments under § 3553(a). The district court denied the motion, finding that the Crack Amendment did not reduce the sentencing range applicable to Mateo.

On appeal, the Third Circuit reviewed the district court’s interpretation of the Guidelines, de novo and its decision to grant or deny the § 3582(c) motion for abuse of discretion. The Third Circuit affirmed the district court’s decision stating that, "[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level." The Court, citing First Circuit precedent, emphasized that the "term ‘sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus. Therefore, pursuant to the statute, ‘if an amended guideline does not have the effect of lowering the sentencing range actually used at sentencing, the defendant’s sentence was not based on that range within the intendment of the statute.’" (citation omitted). Consequently, the Court concluded that, as a career offender, Mateo’s base offense level under § 4B1.1 remained the same regardless of the applicable base offense level under § 2D1.1. As such, the amendment to § 2D1.1 did not affect Mateo’s sentencing range and § 3582(c) does not permit a reduction.

Mateo also made the argument that the Guidelines are advisory and strict adherence to its policy statements violate Booker. The Third Circuit rejected the idea and held that the requirements for a sentence reduction under § 3582(c) remain unchanged in light of Booker and Kimbrough.

Former Secret Service Agent Unsuccessfully Contests Five Sentencing Adjustments Involving Intended Loss, Vulnerable Victim, Abuse of Trust, Obstructio

In United States v. Dullum, No. 07-4502, March 13, 2009, the Court of Appeals affirmed the District Court’s ruling on five sentencing adjustments including; intended loss, vulnerable victim, abuse of trust, obstruction of justice, and acceptance of responsibility in this mail and bank fraud case. The most interesting fact about this case is that the defendant was a Secret Service Special Agent In Newark and an active member of his New Jersey church when the offenses were committed.

Dullum befriended two fellow church members who were recovering alcoholics/drug addicts, and were "a little slow", and volunteered to serve as their financial advisor. The Government maintained that it was in that capacity that Dullum forged one of the victim’s signatures on her will, did not inform the deceased’s family that he was acting as the executor of her estate, made misrepresentations about the value of the estate, transferred money form the estate’s bank account into his person account, and produced a fabricated $20,000 promissory note made out to him by the deceased.

The bank fraud aspect of the case involved a rental property at the Jersey shore owned by Dullum. He deposited two rent checks from the same renter into the estate account and then transferred the money to his personal account. (After depositing the first rent check in the estate bank account, Dullum falsely claimed he did not receive the check. He asked the renter to send a new check made payable to one of the two church members, who he falsely claimed was his wife.) Dullum made restitution for the two checks, after he was interviewed by the Secret Service and the bank froze his accounts.

Dullum argued that the District Court should have applied a four rather than a six level enhancement for loss because his bank fraud scheme (the rent checks) caused no loss. The Court held that Dullum intended to cause a loss for the full amount of the rent check. The Court rejected Dullum’s argument, that he is entitled to credit for repayment of the loss amount, because his repayment was after and not before the crime was uncovered. U.S.S.G. § 2B1.1 App. N.3(E)(I). The Court also rejected Dullum’s argument that the loss associated with the rent check should be reduced to zero because he had other funds in his bank accounts to offset the check.

Dullum argued that the two fellow church members were not vulnerable and were not direct victims. The Court, citing United States v. Monostra, 125 F.3d 183, 189 (3d Cir. 1997), held this enhancement is not limited to situations in which the vulnerable person is the direct victim of the offense of conviction, but that courts may look to all the conduct underlying an offense. The Court noted that the deceased victim was vulnerable, even if the direct victim was her estate. Further, there need only be one vulnerable victim in order for the two level enhancement to apply.

Dullum argued that his relationship with his two fellow church members was not the type of situation contemplated by the abuse of trust adjustment. The Court opined that through Dullum’s involvement with his church, he acted as a teacher, advisor and counselor to the two victims, and that he spent substantial time with them over three years as a trusted church figure of authority, counseling them with respect to their substance and alcohol abuse, and acting as their financial advisor. The Court found that Dullum’s position was a private position of trust and that the District Court did not err in applying the two level enhancement.

Dullum also objected to the two level enhancement for obstruction of justice. The Court held this adjustment was justified because during the investigation Dullum was interviewed three times, and provided five sworn statements, four of which contained lies. He also provided a forged promissory note during his third interview, and failed a polygraph examination. Only after repeated interviews, did he more truthfully discuss his actions in his fifth and final sworn statement.

Finally Dullum argued he should have received a three level, rather than one level, reduction for acceptance of responsibility. The Court determined Dullum was not entitled to the benefit of this adjustment because he refused to take full responsibility for his behavior, and, conduct resulting in an obstruction enhancement ordinarily indicates the defendant has not accepted responsibility for his criminal conduct. (U.S.S.C. § 3C1.1 App. N. 4). As a result, the Court determined the District Court was well within its discretion to grant a one level rather than three level reduction for acceptance of responsibility.

Supreme Court holds that failure to preserve breach of plea agreement is subject to plain error review.

Overruling longstanding Third Circuit doctrine, ( See United States v. Moscahlaidis, 868 F. 2d 1357, 1360 (3d cir. 1989), the Supreme Court held today in Puckett v. United States, 2009 WL 763354 (No. 07-9712), that a breach of a plea bargain at trial or sentencing is subject to "plain error" not "de novo" review unless a timely objection is lodged in the district court.

Special thanks to Peter Goldberger for quickly bringing this to our attention.

Scope of conspiracy dictates statute of limitations, while Third Circuit muddies law on quid pro quo bribery

The Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No. 07-3447 (3/6/09), the Court was faced with an indictment charging two conspiracies to commit bribery (18 U.S.C. s 371 and 666(a)(1)(B)). The indictment described the object of the first conspiracy as "to enrich [defendants] by corruptly soliciting and accepting payments from contractors with the intent of being influenced . . . ." It also recited six overt acts, including solicitation and acceptance of payments as well as (1) the return of one of the payments as a "loan," and (2) the refusal to return another of the payments as a "loan." Only these last two overt acts fell within the 5-year limitations period, however.

The Court held that, because the conspiracy was charged as having a simple solicit/accept object, the conspiracy was complete when that occurred and the later return or refusal to return the payments as "loans" could not have furthered the conspiracy as charged. The statute of limitations had therefore run, and the defendant's convictions on the first conspiracy count, as well as on the underlying extortion counts, were vacated. The second conspiracy count charged a later conspiracy, which was not time-barred. The Court upheld the defendant's conviction on that count against a sufficiency-0f-the-evidence challenge.

Perhaps inadvertently, the Court also dropped a bombshell by stating without analysis that section 666 bribery does not require proof of a quid pro quo. This issue has not previously been addressed in this circuit, is the subject of a split among others, was not actually at issue in Bornman -- and, in result, is arguably inconsistent with the Third Circuit's decision in U.S. v. Kemp. The Court's cite to the Supreme Court's decision in Sabri v. U.S., 541 U.S. 600 (2004) suggests that it confused the federal nexus issue (i.e., the government need not show a link between the official act in question and the federal funds that provide the jurisdictional hook) with the quid pro quo issue (i.e., the government does need to show a link -- an exchange -- between the official act and the thing of value).

The Court also turned away the defendant's challenge to the denial of his severance motion, reaffirming that the difficult standard for severance is not met by a showing that the evidence in a case is most damaging with respect to only certain counts.

Alien bears burden of proving invalidity of written waiver of rights in deportation proceeding

In the context of entertaining a collateral attack on prior deportation during a subsequent prosecution for illegal reentry under 8 U.S.C. s 1326(a), the Third Circuit has held that an alien bears the burden of proving (by a preponderance of the evidence) the invalidity of a written waiver of rights that he signed in the deportation proceeding. The case is Richardson v. U.S., No. 07-4409 (3/4/09). The defense to illegal reentry in this case was that the original deportation was flawed for various reasons. Collateral attacks on deportation orders can be mounted if administrative remedies seeking relief from the order have been exhausted, the alien was improperly deprived judicial review in the deportation proceeding, and the entry of the deportation order was fundamentally unfair.

Here, the Court turned away a collateral attack on the deportation order because the alien had signed a written waiver of rights during the deportation proceeding, and he had not proven the waiver invalid. In the course of reaching this conclusion, the Court noted several open questions in this circuit, none of which needed to be reached in this case:

(1) whether ineffective assistance of counsel constitutes an excuse for failure to exhaust administrative remedies;

(2) whether the exhaustion requirement is prudential or jurisdictional; and

(3) whether, under the fundamentally-unfair prong, an alien may demonstrate prejudice by showing that there was a reasonable likelihood that relief from deportation under former Section 212(c) of the INA (8 U.S.C. s 1182(c)) would have been granted, despite the fact that the Attorney General retains complete discretion over the granting of relief.

Consent search upheld, with thorny questions of revocation and authority avoided by resort to independent-source doctrine

The Third Circuit, in U.S. v. Price, No. 06-4503 (3/3/09), has upheld the denial of a motion to suppress evidence found in a defendant's home, which was searched after state agents gained consent -- under disputed circumstances -- from the defendant's wife. The case ultimately boiled down to whether the consent was voluntarily given, and the court held that it was. The court avoided some difficult issues of revocation and authority by relying on the independent-source exception to the exclusionary rule.

The defendant was arrested at work on a state warrant stemming from the sale of methamphetamine to an undercover agent. After the defendant expressed concern that his young children would be left at home alone, the agents placed him in custody, went to the house, got the mother's telephone number from the children, and summoned her to the scene. Although the agents had information that the defendant operated a meth lab in his basement (and in fact discovered meth paraphernalia on the defendant at the time of his arrest), they declined to seek the defendant's consent to search his home and instead sought it from the wife at the house. The agents told the wife that they wanted to search the house (1) to make sure it was safe for her and the children, and (2) to look for a stolen ATV. They did not tell her that they were looking for a meth lab, that incriminating evidence could be used against her and her husband, or that she had the right to refuse consent.

The wife consented to a search of the house, and let an agent into a locked bedroom where he found meth paraphernalia. She then told the agent to stop searching the house, and he obliged but asked if he could look in the basement -- where the agents thought the meth lab was all along. She said she would allow it, except for the fact that the basement door was locked, she did not have a key, and did not want the door kicked in. An agent then picked the lock, and evidence of meth manufacturing was found.

The wife was then asked to sign a written consent-to-search form, which she refused to do. The agents advised her that the house was unsafe and applied for a warrant, reciting what they saw in the basement as well as other information they obtained during the search of the house and prior to the defendant's arrest. The warrant issued, and the evidence in the basement was seized.

The Third Circuit held that the wife's original consent was voluntary because (1) police do not have to tell a subject that she has the right to refuse consent; (2) the atmosphere was not coercive; and (3) the agent's half-truth about the reasons for the search did not vitiate voluntariness.

The Court dodged what it viewed as the more difficult questions of revocation and authority to search the basement through reliance on the independent-source doctrine. In these circumstance, independent source requires findings that the police would have applied for a warrant absent the constitutional violation and that the warrant would have issued. The Court ruled that, based on everything they knew before entering the basement, the agents would have applied for the warrant even if they had not entered the basement first. The Court also ruled that the warrant application, purged of the evidence from the basement, still established probable cause.

Finally, the Court upheld the terms of an appeal waiver in the defendant's plea agreement and declined to entertain his argument that the government wrongfully withheld a motion for a third-point reduction under U.S.S.G. 3E1.1(b).

Money Laundering and Relevant Conduct

In US v. Blackmon, No. 07-4237 (2/23/09), the 3rd Circuit addressed the interplay between the money laundering guideline, USSG 2S1.1(a), and relevant conduct, USSG 1B1.3. The Circuit accurately warned that the discussion of these issues is "abstruse."

The Circuit held (1) that the district court correctly applied the guidelines for "direct money laundering" under USSG 2S1.1(a)(1) because defendant was accountable for the underlying offense of drug distribution; and (2) that the district court properly counted as relevant conduct for the money laundering guidelines the cocaine conspiracy that defendant was involved in.

Blackmon pleaded guilty to conspiracy to distribute over 5 kilos of cocaine, and to money laundering. The conspiracy involved Blackmon shipping Fed Ex packages of cocaine from California to conspirators in Philadelphia, in exchange for packages of cash that the coconspirators sent back to Blackmon. The FBI arrested the coconspirators, who began cooperating. FBI then set up a sting in which one of the coconspirators sent $15,000 to Blackmon as payment for a shipment of 1 kilo of cocaine. This constituted money laundering because the coconspirator stated that the money itself was the proceeds of drug trafficking. The FBI arrested Blackmon after seeing him pick up the money.

The Circuit ruled that Blackmon was engaged in "direct money laundering" under USSG 2S1.1(a)(1) because he committed the underlying offense of drug trafficking by agreeing to send the coconspirator cocaine.

The Circuit next ruled that in calculating the guidelines range for the money laundering, the district court correctly included as relevant conduct all of the drug trafficking from the conspiracy count. The Court rejected the defense argument that the money laundering offense level should be based only on the 1 kilo of cocaine to be sent in exchange for the $15,000. The Court reasoned that the more than 150 kilos from the cocaine conspiracy should be included as relevant conduct for the money laundering because it was relevant conduct for the drug distribution that was the underlying crime.

Conviction Reversed for Erroneous Hearsay Admission; Court Holds Miranda Issue for Another Day

Held: Out-of-court statement by confidential informant that defendant was the person who sold him the drugs in question, made 50 minutes after event, was not admissible as a present sense impression under Rule 803(1) because it was not sufficiently contemporaneous and was made only after questioning by DEA agents.

After reversing a crack conviction but then vacating its decision on the government’s petition for rehearing, the original panel reversed again in a new opinion filed February 18 in United States v. Green, No. 06-2468, available here: http://www.ca3.uscourts.gov/opinarch/062468p1.pdf. Unfortunately, the new decision comes down without the Court’s previous finding of reversible Miranda error in what the government had called a "widely-used" interrogation tactic of presenting evidence to a suspect before reading the warnings. Instead, it relies exclusively on the erroneous admission of an informant’s prior out-of-court statement under the present sense impression exception to the hearsay rule.

The extended history of the case nonetheless underscores that counsel should be sure to challenge under Missouri v. Seibert, 542 U.S. 600 (2004), the admission of any post-Miranda statement that may have resulted from authorities’ confrontation of the defendant with evidence before administering the warnings. Given indications in the new Green decision that the court was troubled the issue had been waived, it is critical that these challenges not await appeal.

Artega Green was convicted of selling more than 50 grams of crack cocaine and sentenced to 151 months in prison. The government sought to have a confidential informant testify that Mr. Green was the individual with whom the informant appeared on a grainy video of the transaction. In a "rather dramatic turn of events," however, the informant said the video showed someone else entirely. Through a DEA agent, the government subsequently admitted as substantive evidence the informant’s prior statement identifying Mr. Green as the person who sold him drugs in the transaction charged in the indictment.

The court held the prior statement’s admission to be reversible error. The opinion reminds that the exception for "present sense impressions" requires "substantial contemporaneity of event and statement" so that "there is no time for deliberate fabrication" on the part of the declarant. This could not be said of the informant’s statement, the erroneous admission of which had likewise been identified in the court’s original opinion as an alternative ground for reversal.

The prosecution also admitted Mr. Green’s own statements before and after receiving Miranda warnings. Before the warnings, an agent sat Mr. Green in an interrogation room, advised him to say nothing, and played the video for him to watch. "The plan," the agent testified, "was not to Mirandize Artega Green until he saw the video." Otherwise, "it’s quite possible he would have said, I want to speak to my lawyer right away."

From the agent’s perspective, the plan worked. He described Mr. Green’s reaction in what might be mistaken for a clinical diagnosis: his "eyes kind of widened. He looked surprised. And the next statement was, can he see it again.… At the conclusion of the [second playing], the defendant kind of lowered his head, took like a sigh, a deep breath." He and another agent then read Mr. Green his rights and attempted to elicit a confession. When he stayed mum, they put him in a holding cell for more than an hour and then returned with an AUSA. After further prodding, Mr. Green stated that he had sold crack "only once, and gestured toward the video."

The panel’s original decision scrutinized the DEA’s "question first, Mirandize later" tactic and found it constitutionally wanting. Under Missouri v. Seibert and United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005), the "threshold inquiry … is whether the timing of the Miranda warning was the product of a deliberate law enforcement tactic to withhold the requisite warnings at the commencement of questioning." If so, then "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." The decision concluded in strong language that neither Mr. Green’s pre- nor post-Miranda statements should have been admitted. The "record in this case is unambiguous that the initial violation of Miranda was not merely hapless or inadvertent, but rather was ‘an intentional withholding that was part of a larger, nefarious plot’ to prevent Defendant from invoking his rights so as to gain his confession.… This dangerous practice is precisely the type of systematic circumvention of Miranda that the Supreme Court sought to root out in Seibert, and we must thus decline to countenance these highly irregular procedures here."

In its petition for rehearing and rehearing en banc, the United States argued that the decision established "a holding that is of considerable importance to law enforcement" because it "would invalidate the police practice of truthfully advising a suspect of the evidence against him after arrest, but before Miranda warnings are given." Separately, the government urged that the court was not free to reach the issue at all because Mr. Green had not specifically moved to suppress the post-Miranda statement under Seibert. Relying on the court of appeals’ decision in United States v. Rose, 538 F.3d 175 (3d Cir. 2008), the government argued that the failure to raise the issue via suppression motion waived its review on appeal even under a plain error standard.

In its new opinion, the court excised the Miranda/Seibert discussion. In a footnote, it explained that "the Government arguably violated Green’s rights under the Fifth Amendment and the Miranda doctrine," but that the hearsay error meant it "need not reach such constitutional issues at the present time." The court also took note of the government’s waiver argument but likewise stated that the alternative holding foreclosed any need to address the government’s contention "that Federal Rule of Criminal Procedure 12(e) and this Court’s recent ruling in United States v. Rose … prevent us from conducting a plain error review of these Miranda-related issues."

The panel’s excision of its earlier Miranda discussion despite apparently continuing concerns about the DEA’s tactics is a clear message that counsel should be on the lookout for Seibert claims and careful to raise them expressly by suppression motion.

Sentencing on Possession of Classified Documents

In United States v. Aquino, 2009 WL 279274 (Feb. 6, 2009), the defendant received and retained documents containing classified information government information pertaining to the current regime in the Phillipines, United States military strategy and training methods, and ongoing criminal investigations. Aquino pled to a single count under 18 U.S.C. § 793(e), which prohibits the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor. At the hearing Aquino admitted to retaining the documents and knowing the documents were classified and could be used to injure the United States or aid a foreign government.

At sentencing, the parties disagreed over which of the relevant guideline sections, § 2M3.2 (which carries a higher base offense level and covers statutes that proscribe diverse forms of obtaining and transmitting national defense information and carries a mens rea requirement that must have intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government) or § 2M3.3 (with a lower offense level and applies to a range of statutes that proscribe various offenses involving the transmission or communication of national defense information and the disclosure or receipt of classified information) applied.

The district court applied §2M3.2, based mostly on the mens rea requirement. The Third Circuit reversed, holding that the applicable guideline section was §2M3.3, despite defendant's admission that he knew the documents could be used to injure the United States or to the advantage of a foreign nation. The Court found that the §2M3.2 mens rea requirement applied only to intangible information (as opposed to the tangible documents here) and required transmission rather than retaining of the information. Thus, §2M3.3 applied.

Habeas Corpus - Claims Relating Back/Ineffective Assistance

In Hodge v. United States, 2009 WL 235674 (Feb. 3, 2009), the Circuit held that defendant's ineffective assistance claim in his untimely supplemental memorandum and his right-to-appeal claim in his original habeas motion were tied to a common core of operative facts. Thus, the ineffective assistance claim relates back to his timely habeas motion, where both claims concerned erroneous advice provided by defendant's counsel regarding filing deadline for appeal. Failure to file notice of appeal was ineffective assistance.

Court Distinguishes Chapter Two and Chapter Three “Victims” under the Guidelines

In United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs. Kennedy was convicted of writing checks, mostly payable to cash, from the accounts of 34 beneficiaries. The non-profit and its insurer fully replenished the accounts from which money was taken. At sentencing, the court applied a two-point enhancement for ten or more victims (§ 2B1.1(b)(2)(a)) and a two-point enhancement for vulnerable victims (§ 3A1.1(b)(1)). On appeal, Kennedy challenged the enhancements.

The Third Circuit agreed that the § 2B1.1(b)(2)(a) enhancement, based on the number of victims, did not apply. The Court held that the account holders from whose accounts the defendant stole funds were not “victims” within the meaning of that enhancement where the account holders were completely reimbursed by defendant's employer and the employer's insurer before they even knew funds were missing from their accounts. Thus, they suffered no pecuniary harm, a prerequisite for being a “victim” under § 2B1.1.

The Court did uphold the vulnerable victim enhancement under § 3A1.1(b)(1), based on the same thirty-four account holders. Distinguishing “offense conduct”based chapter two enhancements from “relevant conduct” based chapter three enhancements, the Court reasoned that it was the account holders’ incapacity to manage their own financial affairs which was the reason for defendant’s management and access to their accounts– establishing the required nexus between the victim’s vulnerability and the crime’s ultimate success.

Puerto Rican Felony Conviction Qualifies as Predicate Offense under 18 U.S.C. §922(g)(1)

In United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U.S.C. §922(g)(1).

The defendant moved to dismiss the indictment, claiming that the government failed to adequately allege the materiality element of 18 U.S.C. §922(a)(6). Citing Small v. United States, 544 U.S. 385 (2005), the defendant argued that his Puerto Rican conviction was “foreign” and not “domestic,” and therefore it could not serve as a qualifying predicate offense under 18 U.S.C. §922(g)(1). According to the defendant, the existence of his Puerto Rican conviction was not material to the lawfulness of the sale because the foreign conviction did not make it illegal for him to purchase a firearm under 18 U.S.C. §922(g)(1). The trial court denied the defendant’s motion, ruling that his Puerto Rican conviction was domestic. The defendant pled guilty on the condition that he could appeal the trial court’s denial of his dismissal motion.

Retired Supreme Court Justice Sandra Day O’Connor, sitting by designation, wrote the opinion for the Court. Justice O’Connor determined that Small was inapplicable to the case because, unlike the Japanese conviction at issue in Small, the defendant’s Puerto Rican conviction was in fact “domestic.” In Small, the Supreme Court recognized a presumption that Congress intends its statutes to prohibit only domestic, not foreign, conduct. Consequently, Congress must also intend only domestic criminal acts to serve as predicate offenses for its statutes.

Justice O’Connor recognized that, as the Commonwealth of Puerto Rico was in essence a “State,” federal laws applied to Puerto Rican conduct. Therefore, based upon the presumption discussed in Small, the defendant’s Puerto Rican conviction was in fact domestic and therefore could serve as a qualifying predicate offense under 18 U.S.C. § 922(g)(1). As a result, Justice O’Connor affirmed the defendant’s conviction.

Fourth Amendment Requires Initial Determination of "Seizure"

In United States v. Crandell, No. 07-4004 (Jan. 29, 2009), police responded to an anonymous tip regarding a Black male with blond-tipped dreadlocks in the area carrying a handgun in his waistband. The officers apparently recognized the tip as a description of the defendant. As the officers arrived in the area, they observed the defendant walking in their direction. The officers approached the defendant and conducted a pat down search of his person.

The trial court suppressed the gun as fruit of an illegal seizure under the Fourth Amendment. The court ruled that the anonymous tip was insufficient to support a reasonable suspicion to justify the stop. The trial court apparently assumed that police had seized the defendant when they initiated the pat down search. The government appealed, arguing that the defendant had not been seized pursuant to Fourth Amendment jurisprudence.

The Court reiterated that before the trial court could address the sufficiency of the anonymous tip to support the requisite reasonable suspicion for an investigatory stop, it first had to determine whether the encounter between the defendant and police implicated Fourth Amendment, i.e., whether the defendant had been seized.

The Third Circuit then provided a detailed discussion of the three forms of citizen-police interaction recognized by the Supreme Court, each of which requires a different level of scrutiny under the Fourth Amendment. At one end of the spectrum is a consensual encounter, where the officer merely requests information. The citizen may choose to engage in the encounter or terminate it. This consensual encounter involves the least amount of intrusion upon an individual’s Fourth Amendment rights, and therefore does not require the officer to develop a level of suspicion before he stops the individual. At the other end of the spectrum is a full arrest, for which police must have probable cause. Between the consensual encounter and the full arrest is the investigatory stop, which is more intrusive upon an individual’s Fourth Amendment rights than a consensual encounter, but less intrusive than a full arrest. To justify an investigatory stop, police must have a reasonable, articulable suspicion that the individual has engaged in criminal activity.

The Court also elucidated the meaning of "seizure" under the Fourth Amendment, clarifying that a seizure occurs when a citizen is restrained by police either by physical force or a show of authority.

The Court vacated the lower court’s ruling and remanded the case to allow the lower court to determine, based upon the facts and circumstances surrounding the encounter, whether the defendant initially had been subjected to a seizure or a consensual encounter.

Impeachment by contradiction with prior crimes evidence subject to FRE 402, 403 & 607, not 404(b) and 609.

On January 20, 2009, the Third Circuit decided United States v. Gilmore, Case No. 07-3139. It held that a party may permissibly introduce prior crimes evidence, subject to Rules 402, 403 and 607 of the Federal Rules of Evidence, and with a proper limiting instruction, to impeach by contradiction a witness’s testimony regarding a specific fact. See Gilmore, slip op. at 10-11. The Court further held that such impeaching evidence does not fall within the ambit of Rules 404(b) and 609. See id., slip op. at 9, 12.

Gilmore involved a prosecution for conspiracy to distribute and to possess with intent to distribute 500g or more of cocaine. See Gilmore, slip op. at 3. Mr. Gilmore testified in his own defense, and during direct examination, stated “No, I didn’t sell no drugs. I never did.” Id., slip op. at 5 (emphasis by the Court). The government, with the district court’s permission, cross-examined Mr. Gilmore about his two prior convictions for drug distribution, both of which occurred in 1992. See id., slip op. at 6. The district court gave a limiting instruction to the jury after the impeachment and at the final charge. Id., slip op. at 7. As noted above, the Third Circuit affirmed.

Rule 404(b)’s bar on other crimes, wrongs, or acts evidence does not apply, it held, because impeachment by contradiction is not solely “evidence . . . to show action in conformity therewith.” See id., slip op. at 9. Similarly, Rule 609’s rules concerning impeachment of credibility generally with prior convictions do not apply because “impeachment by contradiction concerns the use of evidence to impeach a witness’ specific testimony,” not the “witness’ general character for truthfulness.” Id., slip op. at 12. As Rule 609(b) suggests, however, “a prior conviction’s age may affect its probative value” and “its potential for unfair prejudice.” Id., slip op. at 13. The Third Circuit consequently stated that “a district judge faced with the proffer of past criminal conduct to impeach a witness’ testimony by contradiction my properly consider the age of that conviction using standard Rule 403 analysis, though without resort to Rule 609.” Id.

Bare fact of prior arrests cannot be used to increase a defendant's sentence.

In United States v. Berry, No. 07-1251 (Jan. 6, 2009), Defendants pleaded guilty to robbery and using a firearm in furtherance of crime of violence. At sentencing, the district court speculated that the only reason that defendants' prior arrests had not resulted in prior convictions was because the criminal justice system must have broken down, and the arrests were therefore evidence of prior criminal activity which could support an increase in sentence.

The Third Circuit reversed, holding that the bare fact of prior arrests cannot be used in any way to increase a defendant's sentence and the district court’s reliance on those arrests violated defendants' due process right to be sentenced based on reliable information. While the Guidelines already say that bare arrest records are not to be used to justify an upward departure, Berry makes clear they cannot be used at all (upward variance, denial of downward departure/variance, in weighing the 3553(a) factors, etc).

Sentencing courts may still use prior conduct, including any conduct described in the PSR relating to prior arrests. Here, the PSR contained no such factual information, and the district court simply speculated that the defendant's prior cases were probably dropped for reasons unrelated to guilt/innocence. The Court adds at the end of the decision that “maybe” an extremely long (but still bare) arrest record -- on the magnitude of dozens of arrests -- could be used to increase a sentence; but the court discourages even that.

Prosecutorial Misconduct for AUSA to Introduce "extensive evidence" of Uncharged Drug Use and Transactions -- Even Under Plain Error Standard

United States v. Morena, No. 07-1297 (Nov. 19, 2008). Morena appealed his conviction for felon-in-possession and possession of an unregistered, sawed-off shotgun. He appealed on several grounds, but prevailed on his claim that the government’s injection into the trial of extensive evidence of uncharged drug use and transactions, as well as evidence of his prior non-felony convictions, amounted to prosecutorial misconduct and plain error.

There is great language in this opinion about the prosecutor’s duty as the representative of a sovereign, the danger of admission of uncharged misconduct, the sufficiency of evidence in gun prosecutions, and the limited value of curative instructions.

The district court had approved the admission of a limited amount of drug evidence under 404(b) to show motive and to set the context for the arrest. As the Court wrote, however, "the government repeatedly exceeded its pretrial proffer, systematically injecting inadmissible drug evidence into the two-day trial." Indeed, the district court admonished the government repeatedly over the presentation of such evidence: serious heroin dealing not connected to Morena (twice); violation for probation due to drug use; and history of drug use (three times).

The government attempted to defend the conviction on the basis that the evidence of Morena’s guilty was "firm and sufficient." The Court found that the evidence "boil[ed] down" to the testimony of one witness who had "credibility issues," and "a few pieces of circumstantial evidence." The Court noted that, "[i]n such a case, improper suggestions and insinuations ‘are apt to carry much weight against the accused when they should properly carry none.’"

The Court was also critical of the district court’s limiting instructions. Only one was given during trial. After its initial reprimand, the district court halted testimony to advise the jury to remember that Morena was on trial for guns not drugs. In its jury instructions, the court repeated, "[Morena] is only on trial for these two counts and no other criminal conduct that has been mentioned or alluded to." The Court characterized these instructions as weak, AND added "[m]oreover, even a very strong jury instruction to disregard a prosecutor’s conduct may nevertheless result in a denial of due process where, as here, the evidence is marginal and the prejudicial conduct significant."

Great win by Renee Pietropaolo of the Federal Public Defender for the Western District of Pennsylvania.

NB: The Court also gives a several-page reminder that conflict of interest and ineffective assistance claims are generally not cognizable in the first instance on direct appeal.

On the sufficiency issue, check out the recent Ninth Circuit decision in United States v. Perez, in which the Court reverses a gun conviction because, "[w]here there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Note that the defendant in Perez was found sleeping with one gun in his lap and another leaning against his knee! For more, see http://circuit9.blogspot.com/

No Bruton Violations in Bench Trials

Johnson v. Tennis, No. 07-1968 (3d Cir. Nov. 19, 2008). The first paragraph of this opinion (almost) says it all:

"This appeal by Gary Johnson from the denial of his petition for habeas corpus by the District Court of the Eastern District of Pennsylvania requires us to decide an issue of first impression in this Circuit: Do the teachings of Bruton v. United States, 391 U.S. 123 (1968), apply to a bench trial in a criminal proceeding? Bruton and its progeny established that in a joint criminal trial before a jury, a defendant’s Sixth Amendment right of confrontation is violated by admitting a confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. See id.; Richardson v. Marsh, 481 U.S. 200, 211 (1987); Cruz v. New York, 481 U.S. 186, 193-194 (1987). We hold that the Bruton rule is inapplicable to the incriminating confession of a nontestifying codefendant in a joint bench trial. By its own terms, Bruton applies to jury trials only. In so deciding we agree with every United States Court of Appeals that has considered the question."

The Court "so decided" because "[w]e will not presume that a judge suffers from the same disability" as a jury in disregarding inadmissible evidence.

Expect fewer bench trials in cases with confessing co-defendants!

Defendants not required to re-raise sentencing issues at end of sentencing hearing to avert plain error review

In United States v. Sevilla, 07-1105 (3d Cir. Sept. 4, 2008), the Third Circuit clarified what defendants must do to avert plain error review of sentencing issues. The Court held that where a defendant squarely raises a sentencing issue both in his sentencing memorandum and again at the sentencing proceeding, the defendant is not required to re-raise those issues or otherwise object to the district court's explanation of its sentence in order to avert plain error review.

The Court proceeded to review the defendant's sentence for reasonableness and ultimately vacated defendant's sentence and remanded for resentencing because instead of addressing the defendant's sentencing issues, the district court merely stated that it had considered the 18 U.S.C. § 3553(a) factors and provided no further comment or analysis. The Third Circuit concluded that the record did not indicate that the district court gave meaningful consideration to the 18 U.S.C. § 3553(a) factors.

Reasonable suspicion is required to justify border search of cruise ship passenger's cabin

In a matter of first impression, the Third Circuit ruled in United States v. Whitted, 06-3271 (3d Cir. Sept. 4, 2008) that reasonable suspicion was required to justify a border search of a passenger cabin on a cruise ship arriving in the United States from a foreign port. The Court found that a passenger's private living quarters while on a ship were more akin to an individual's home than an automobile and, therefore, were entitled to more rigorous Fourth Amendment protection. As such, a search of a cruise ship passenger's cabin at the functional equivalent of a border constituted a non-routine border search which must be supported by reasonable suspicion.

Applying this standard, the Third Circuit concluded that reasonable suspicion existed to support the search in this case. Customs officials had a particularized and objective basis to suspect that defendant was involved in drug smuggling where cruise ship traveled to drug source countries, defendant had previously traveled to several known narcotics source countries, purchased his ticket just prior to ship's date of departure, may have paid for ticket in cash, and had record of felony drug convictions, and officials did not engage in profiling, but rather, authorities at port had found defendant's behavior suspicious and entered lookout for him into Treasury Enforcement Communications System (TECS) database.

Third Circuit discusses procedures for declaring a mistrial based on a deadlocked jury

In United States v. Wecht, 08-2258 (3d Cir. Sept. 5, 2008), the Third Circuit identified the ideal procedures a district court should follow before declaring a mistrial based on a deadlocked jury by referring to the Court's recently adopted Model Jury Instructions, specifically Instruction 9.05 (Deadlocked Jury - Return for Deliberations) and Comment 9.06, which details the Committee's recommended procedure for declaring a mistrial based on a deadlocked jury. The procedure includes: (1) determining whether a supplemental charge is necessary, (2) questioning each juror, (3) excusing the jury and conducting a hearing with counsel and the defendant, and (4) calling the jury back to the courtroom and discharging the jury.

The district court in this case did not follow the ideal procedure because it never questioned the jurors regarding the deadlock. Nor did the court provide counsel with the opportunity to argue the merits of declaring a mistrial as required by Fed.R.Crim.P. 26.3. Although the Third Circuit found that the district court had both failed to follow the proper procedure for declaring a mistrial and had violated Fed.R.Crim.P. 26.3, neither violation warranted an automatic dismissal of the Indictment. Instead, the Court considered the substantive question of whether the district court improperly declared a mistrial. In evaluating this question, the Court held that the district court's violation of Rule 26.3 did lessen the degree of deference it would accord the district court's finding of manifest necessity for declaration of mistrial. Even under this lower standard, however, the Third Circuit found that manifest necessity existed to declare a mistrial where the jury had deliberated for 54.5 hours over a period of ten days and had sent two notes indicating that they were hopelessly deadlocked. Accordingly, the Third Circuit affirmed the district court's declaration of mistrial and held that the defendant could be tried again without violating the Double Jeopardy Clause.

Admissibility of Redacted Proffer Statement Violates Confrontation Clause But Constitutes Harmless Error

In United States v. Hardwick et al, (3d Cir. October 3, 2008), the Court of Appeals held that the admission into evidence of a redacted proffer statement, after the close of the Government’s case-in-chief, violated defendants’ constitutional rights under the Confrontation Clause; however, use of the proffer statement was harmless error. Furthermore, the Government conceded that the sentences for three of the four defendants should be reduced to only one § 924(c) conviction each.

During the course of the investigation Defendant Murray entered into a proffer agreement with the Government. Under this agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the Government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception if the Government needed "to rebut any evidence or arguments offered on [Murray’s] behalf." During two proffer sessions, Murray admitted to planning and participating in the slaying of two individuals. After the close of its case-in-chief, the Government moved in limine to introduce Murray’s proffer statements. Although Murray did not testify at trial, the Government argued that he breached the proffer agreement by attempting to elicit contradictory evidence, that he had a lesser role in those killings, through cross-examination. The terms of the waiver allowed the Government to use Murray’s proffer statements not only to cross-examine him, but also "to rebut any evidence or arguments offered on [his] behalf." The District Court granted the Government’s motion in limine finding that the cross-examinations conducted by Murray’s counsel contradicted the proffer statements and thus triggered the waiver. In order to address Confrontation Clause concerns raised by the other three defendants, the District Court ordered that all references to Murray’s co-defendants be redacted and replaced with neutral references such as "others" or "another person." The District Court also instructed the jury that it could consider the proffer statements only to assess Murray’s guilt and not the guilt of the other defendants.

The Court of Appeals first opined that the waiver clause in Murray’s proffer agreement was enforceable. The Court then determined that Murray triggered the waiver through his cross-examinations. Thirdly, the Court reasoned that the Government was not required to contemporaneously object to the cross-examinations, as the Government was exercising it contractual right under the proffer agreement and not lodging an objection to Murray’s line of cross-examination. Finally, the Court found that the other three defendants’ rights under the Confrontation Clause of the Sixth Amendment were violated because of the nature of the redaction of the proffer statements. The Court wrote that "the nature of the linkage between the redacted statement and the other evidence in the record is vitally important in determining whether a defendant’s Confrontation Clause right has been violated. Even redacted statements will present Confrontation Clause problems unless the redactions are so thorough that the statement must be linked to other evidence before it can incriminate the co-defendant." Assessing the "kind" of inference and not the "simple fact of inference" led the Court to conclude that the admission of Murray’s proffer statements violated the Confrontation Clause rights of Murray’s co-defendants." Nonetheless, the Court concluded that the evidence in this case was more than sufficient to support the jury’s verdict, even without the proffer statements, so the error was harmless beyond a reasonable doubt.

Furthermore, the Government agreed that the multiple consecutive sentence imposed on three of the four defendants under § 924(c) should be remanded with instructions to vacate all but one § 924(c) conviction each, in compliance with a Justice Department policy memorandum requiring a separate predicate offense for each § 924(c) charge.

Third Circuit finds evidence insufficient to support conviction for harboring; upholds seizure based on anonymous tip

On September 9, 2008, the Third Circuit issued its decision in United States v. Silveus, Case No. 07-3544.  It focused on two issues raised by the appellant, Rozaline Silveus: Whether the evidence was sufficient to support her conviction for harboring an illegal alien (her boyfriend, Dorsainvil Jean), and whether ICE agents' seizure of her -- and the search that followed -- was constitutional.

The Third Circuit held that the government's evidence was insufficient to convict Ms. Silveus of harboring Mr. Jean.  As the Court observed, the evidence supporting the harboring charge was limited to the following:  As ICE agents approached Ms. Silveus's house, they heard a door slam and some bushes break.  Then, as they went to the front door, they saw Ms. Silveus close that door and open a window.  In response to the agents' questions, Ms. Silveus said that Mr. Jean was not there, that she did not know whether anyone had just left her home, and that the agents could not enter to conduct a search.  There was no testimony or other evidence tending to show that Mr. Jean was present.  Therefore, the Third Circuit said, the evidence could not support the necessary inference that Ms. Silveus was concealing Mr. Jean from authorities.  It consequently reversed the district court's denial of Ms. Silveus's Rule 29 motion as to the harboring charge, and vacated her conviction thereon.

The Court was less accepting of Ms. Silveus's challenge to the constitutionality of ICE agents' seizure of her and search of her car.  The agents received an anonymous tip that Ms. Silveus and Mr. Jean were transporting illegal aliens on the car ferry between St. John and St. Thomas.  The informant, who had previously given agents accurate information, provided Ms. Silveus and Mr. Jean's name, said that they were traveling together on the ferry, described their SUV, and provided their license plate number.  Based on this tip, the agents stopped Ms. Silveus when the ferry arrived in St. Thomas.  They found Ms. Silveus in the aforementioned SUV, along with two illegal aliens.  They also saw Mr. Jean off the side of the ferry, treading water.

The Third Circuit held that the anonymous informant's information, taken together with the ICE agents' observations, were sufficient to supply reasonable suspicion for the stop.  It further held that the agents' observations after the initial stop -- of nervous, wet, non-English-speaking passengers in Ms. Silveus's SUV -- were sufficient justification for the prolongation of the stop and further investigation.

In addition to these two major issues, Ms. Silveus's appeal raised three other claims of error: that the evidence was insufficient to sustain her conviction for transporting three aliens, that the district court's erred in denying her motion for a new trial to correct a miscarriage of justice, and that the district court violated her Sixth Amendment confrontation right by limiting her cross-examination of one of the ICE agents.  The Third Circuit rejected all three.

First, it said that the government's evidence (primarily, the testimony of the three illegal aliens in the SUV) supported an inference that Ms. Silveus knowingly transported aliens within the United States.  Second, the Court held that the district court did not abuse its discretion in denying Ms. Silveus's motion for a new trial, which she premised on the argument that one of the government's witnesses had perjured himself, because that witness's testimony was not, as she claimed, patently unbelievable.  And finally, the Third Circuit held that the district court, by limiting Ms. Silveus's cross-examination of an ICE agent about his bias against her and Mr. Jean to exclude any mention of the agent's resentment over Mr. Jean's previously being acquitted of a crime (while permitting her to explore the agent's unhealthy, romantic obsession with her and his subsequent anger over being spurned), had not infringed Ms. Silveus's Sixth Amendment confrontation right.

Failure to Advise Defendant of Mandatory Minimum Sentence Prior to Pleading Guilty Renders Plea Involuntary

In Jamison v. Klem, No. 07-1045 (3d Cir. September 30, 2008), the Court of Appeals held that failure to advise a defendant of an applicable mandatory minimum sentence prior to pleading guilty renders the plea not knowing, voluntary and intelligent. The Court of Appeals reversed the district court’s denial of Jamison’s habeas petition challenging the validity of his guilty plea on those grounds and directed the district to grant a conditional writ.

Jamison pleaded guilty to a drug charge in York County, Pennsylvania, which carried a mandatory minimum sentence of 5 years imprisonment. The record established that Jamison was not advised of the mandatory minimum anytime prior to entering his plea. The first time Jamison learned he was subject to a mandatory minimum sentence was at his sentencing hearing where the mandatory minimum of 5 to 10 years of imprisonment was imposed. Rather than filing a direct appeal, Jamison collaterally attacked his guilty plea by filing a petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA). The PCRA court found that since Jamison was advised of the maximum penalties due process was satisfied despite the fact that he was not advised of the mandatory minimum. The Pennsylvania Superior Court affirmed the denial of the PCRA petition on the grounds that Jamison was not claiming actual innocence. Jamison then filed a federal habeas petition pursuant to 28 U.S.C. 2254, again claiming that his guilty plea was not voluntary.

Counsel was appointed, and, after an evidentiary hearing, the Magistrate Judge recommended the petition be granted having found as fact that Jamison was never advised of the mandatory minimum and that the failure to so advise rendered the plea not knowing, voluntary and intelligent. The district court accepted the Magistrate Judge’s factual findings but held that the state courts’ rejection of Jamison’s claim was not "contrary to" or "an unreasonable application of Supreme Court precedent" as required for habeas relief under 2254. This holding was based on the fact that no Supreme Court case specifically requires that a defendant be advised on an applicable mandatory minimum. The district court also relied on an unpublished Eleventh Circuit case that held that as long as the defendant is aware of the maximum penalties, there is no need to advise of the mandatory minimum.

The Court of Appeals began its analysis with Boykin v. Alabama, 395 U.S. 239 (1969), which held that "courts may not accept guilty pleas without determining, on the record, that the guilty plea was the result of a knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Slip op. at p. 16. Accordingly, the Court identified the issue as whether the states courts’ decision that Jamison’s plea was valid, was contrary to clearly established law as set forth in Boykin and its progeny that a plea must be a knowing, voluntary and intelligent act undertaken with an understanding of its consequences. The Court held that an applicable mandatory minimum is a direct consequence of a guilty plea that must be know prior to entering a valid plea. Indeed the Court stated that "the mandatory minimum sentence may be far more relevant than the theoretical maximum because it is rarely imposed." Id. at 34. The Court held that although this specific issue regarding a mandatory minimum was never before the Supreme Court, the state courts’ decisions in Jamison case were an unreasonable application of Boykin. In making this determination, the Court noted that the standard of review established in the AEDPA is not so constrained as to require that a Supreme Court decision addressing an issue arising from the identical fact pattern constitute clearly established law. Accordingly, the Court reversed the denial of the petition and directed the district court to grant a conditional writ.

Cannot Exclude Personal Use in Determining Weight Involved in Conspiracy & Prior Testimony of Witness Admissible Since Trial Testimony Evasive

[This case summarized by Leo Latella.]

In United States v. Iglesias, 535 F.3d 150 (3d Cir. 2008) , the Court of Appeals held, in addressing two issues of first impression, that a defendant convicted of conspiring to distribute drugs is not entitled to exclude an amount for personal use in determining the total quantity of drugs involved in the conspiracy. Additionally, as a matter of first impression in this Circuit, the Court held that a witness’ prior testimony at a suppression hearing was admissible at trial under Fed.R.Evid. 801(d)(1)(A), when his trial testimony was evasive on the same subject matter. Lastly, Court of Appeals rejected Iglesias’ contention that his drug conspiracy and possession of a firearm in furtherance of a drug trafficking crime were not supported by sufficient evidence.

Prior to Iglesias’ arrest, an individual who later became a cooperating witness was arrested and found with a small quantity of methamphetamine. The cooperator stated that he purchased the meth from Iglesias and made a recorded call arraigning to purchase more. Based on this information a warrant was obtained to search Iglesais’ home after which quantities of meth were found in various rooms and large quantities were found in his car. A semiautomatic handgun was found in his bedroom together with ammunition and a bag containing 2.7 grams of meth.

Iglesias filed a suppression motion prior to trial. At the suppression hearing, the cooperator testified that he bought methamphetamine from Igesais "once or twice" at Iglesias’ residence and that sometimes he did not pay Iglesais until he sold the meth to his own customers. The motion was denied. At trial, two days later, the cooperator became equivocal and in response to the prosecutor’s question as to where he obtained his meth stated "I can’t answer that question because it has been brought to my attention that charges may be brought against me." The district court then admitted the cooperator’s suppression hearing testimony regarding his dealings with Iglesias, who was later convicted on all counts.

On appeal, Iglesias first challenged the sufficiency of the evidence to support the conspiracy conviction arguing that he and the cooperator had a mere buyer/seller relationship. The Court of Appeals rejected that argument holding that: "Although he purchased drugs from Iglesias ‘once or twice’ at Iglesias’ apartment, [cooperator] testified that Iglesias gave him drugs on credit and awaited payment until after [cooperator] had sold the drugs to his customers. This arrangement is sufficient evidence of a conspiracy. Also, the fact that Iglesias invited [cooperator] to Apartment A with drugs in plain view reflects a level of mutual trust consistent with a conspiracy." Id. at p. 156. Similarly, the Court rejected a sufficiency of the evidence challenge to the 924(c) conviction relying on the following factors to establish that the gun was possessed in furtherance of drug trafficking: "The Taurus was found-along with a loaded magazine-inside a briefcase in the office. In addition to the Taurus and the magazine, the briefcase held a large food saver bag that contained several hundred Ziploc® bags. The food saver bag was of the same type which had been used to store the drugs found in the Volvo, and the Ziploc® bags were identical to those which had been used to store methamphetamine in the kitchen of Apartment A. Given the proximity of the loaded magazine to the gun-and considering that the gun, magazine, and drug packaging paraphernalia all were stored together in the briefcase that was found in the same room as methamphetamine-a rational juror easily could have concluded that the gun was used "in furtherance of" Iglesias’ drug-trafficking activities within the meaning of [924(c)]." Id. at 157.

Iglesias next challenged the admission of the cooperator’s suppression hearing testimony. Since a proper objection to the testimony was not raised at trial, the Court reviewed the admission of the evidence for plain error. Under Rule 801(d)(1)(A), the cooperator’s suppression hearing testimony would be admissible at trial if his suppression hearing testimony was "inconsistent" with his trial testimony. Id. at p. 158. The Court of Appeals stated that the cooperator’s trial testimony "was as evasive and opaque as it was clear and straightforward at the suppression hearing." Id. at 159. Deciding an issue of first impression in this Circuit, the Court held that "where a witness demonstrates a manifest reluctance to testify and forgets certain facts at trial, this testimony can be inconsistent under Rule 801(d)(1)(A)."

Lastly, the Court rejected Iglesias’ argument that the amount of meth that he intended for personal use should have been deducted in calculating the total quantity of drugs involved in the conspiracy. The Court stated that while the amount of drugs possessed for personal use should ordinarily be deducted when a defendant is convicted of distribution, as a matter of first impression in this Circuit, a defendant convicted of conspiracy "is not entitled to exclude an amount for personal use in determining the total quantity of drugs involved in the conspiracy." Id. at 160.

Court of Appeals Reverses District Court's Grant of Suppression Motion

[This case summarized by Leo Latella.]

In United States v. Torres, 534 F.3d 207 (3d Cir. 2008) , the Court of Appeals reversed the district court’s grant of defendant’s suppression motion and held that police officers had sufficient reasonable articulable suspicion to initiate a traffic stop of a vehicle described by an unidentified cab driver who called 911 and stated that he saw the driver of the vehicle brandish a handgun at a gas station. The cab driver called 911 from his cell phone and reported that he had just seen the driver of a silver BMW flash a gun at a rose vendor near a gas station. The caller was following the BMW during the call and gave detailed information regarding the vehicle including its make, model, color, license plate number, its location and identified the driver as an Hispanic male. The 911 call was made at 2:59 p.m. At 3:02 p.m. the call was dispatched to officers and at 3:07 p.m. the car was stopped and Torres was found to be in possession of a fully-loaded 9 millimeter handgun. He was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court granted Torres’ motion to suppress the weapon and ammunition finding that the tip from the taxi driver did not supply reasonable suspicion for the stop. The Court of Appeals reversed.

The issue before the Court was whether the officers had the right to stop Torres’ vehicle pursuant to Terry v. Ohio, 392 U.S. 1 (1968), which creates an exception to the warrant requirement of the Fourth Amendment when officers conduct a brief, investigatory stop based on "reasonable, articulable suspicion that criminal activity is afoot." Id. at 210. The Court rejected the district court’s finding that "the anonymous tip did not exhibit sufficient indicia of reliability to provide reasonable suspicion." Id. at 211. The Court of Appeals found that the totality of the circumstances justified the stop based on the following: 1) the tipster was an eyewitness who had recently viewed the activity; 2) the tip was detailed and given to the 911 dispatcher in a "play-by-play" fashion as the tipster was following the car; 3) while the tipster did not give his name, he identified his cab company and color of his cab and indicated that a police car was in front of the defendant’s car while he was following it and; 4) the tip identified the make, model, color, license plate number and the defendant’s race and the details of the brandishing incident. Finding that these circumstances provided reasonable suspicion to stop the car, the Court of Appeals reversed the district court’s grant of the suppression motion.

United States v. Goldberg, 538 F.3d 280 (3d Cir. 2008).

The defendant in Goldberg ran a business that sold veterinary grade prescription drugs to horse owners without proof of a prescription. The government charged him with, inter alia, possessing the controlled substance Stanozolol with the intent to distribute, and various misbranding charges. Following conviction by a jury on all counts, the defendant appealed, challenging various aspects of his convictions as well as the application of certain guideline provisions at setencing.

1. Whether possession of a controlled substance required the actual possession to be illegal as well as the intent to distribute - During deliberations, the jury asked a question that essentially inquired whether it needed to find that the defendant's "possession" of Stanozolol was illegal as well as his intent to distribute. Despite the defendant's claim that the term "possession" in the statute "implied" that the possession must be illegal, the district court instructed the jury that it simply needed to find that the defendant possessed Stanozolol, without qualifying whether the possession had to be legal or illegal. The Third Circuit affirmed the district court's actions, holding that the term "possession" was not limited only to instances of illegal possession.

2. Whether certain hearsay testimony that admittedly violated the Confrontation Clause was harmless beyond a reasonable doubt- During trial, the government introduced certain hearsay statemtned that suggested the defendant's possession of the Stanozolol he intended to distribute was illegal. Because the Third Circuit found that the question regarding the legality of the possession was irrelevant, it likewise found that the admission of the hearsay testimony "into the mix of information the jury was considering in relation to [the possession] charge was harmless." The Court also found that while the testimony "undoubtedly impugned" the defendant's credibility, his credibility simply was not an issue at trial based on the nature of the facts and the defense the defendant raised.

3. Whether the evidence was sufficient to support convictions for felony misbranding under 21 U.S.C. 331(k) - The defendant raised the legal argument that the act of dispensing the drugs in question merely without a prescription did not qualify as misbranding under a proper interpretation of the statute. Instead, the defendant argued, the statute required the defendant to somehow alter the product in some way. The Third Circuit rejected this argument, concluding that any confusion in the language of the statute was "resolved by the relatively straightforward declaration that dispensing drugs without a prescription means that those drugs were misbranded while they were held for sale." However, the Court did find that the evidence did not support the conclusion that the defendant "acted with an intent to defraud of mislead." Therefore, under the statute, his conduct only rose to the level of a misdemeanor misbranding, instead of a felony, of which the defendant was originally convicted.

4. Whether the district court properly calculated the loss attributable to the defendant under U.S.S.G. 2B1.1(b)(1) - In calculating the amount of loss attributable to the defendant's crimes, the district court used the "total gross profits" from the defendant's scheme "as a proxy for the losses suffered." Affirming this approach, the Third Circuit relied on Application Note 3 to 2B1.1, which addresses schemes involving the sale of items "for which regulatory approval by a government agency was required but not obtained." Note 3 states that in such a scenario, the "loss shall include the amount paid" for the items in question. The Court then concluded that the drugs being sold in the defendant's case required F.D.A. approval, and because he had not obtained such approval, Note 3 was applicable and the district court's approach to determining loss was consistent with its instruction.

5. Whether the "Administrative Order" enhancement under U.S.S.G. 2B1.1(b)(8) was appropriate - Finally, the Court considered whether it was appropriate for the district court to apply a 2-level enhancement under U.S.S.G. 2B1.1(b)(8) for violating a prior judicial or administrative order. First, the Court explained that "[a]s a general rule, courts . . . have been willing to impose the enhancement after a meaningful negotiation or interaction led the agency to issue a directive that the defendant subsequently violated." It then concluded that the enhancement "requires an interaction between the agency and defendant that allowed the defendant to participate in some meaningful way . . . and that led to a definite result, like a consent decree or a seizure." Based on these parameters, the Court then concluded that the F.D.A.'s "warning letter" to the defendant did not justify the enhancement. The Court also concluded that a state "cease and desist" letter likewise did not justify the enhancement because it did not offer the defendant the chance to participate in the process in any meaningful way.

Sufficiency/Knowledge of Conspiracy's Object and Brady/Evidence Possessed by Foreign Sovereign

[This case summarized by Felicia Sarner.]

US v. Reyeros, 537 F.3d 270 (3d Cir. July 31, 2008). Reyeros, a former customs inspector, was convicted of conspiring to transport cocaine into the United States. The government's case relied in part on a cooperating witness who was initially detained in Columbia and opposed extradition. Reyeros requested documents the witness filed with Columbian authorities opposing extradition, arguing that he was entitled to them under Brady and Jencks. The Circuit found the evidence was sufficient to prove that Reyeros was aware that the purpose of the conspiracy was to import cocaine. It also found that the requested documents were not and had never been in the possession of the United States government, and that Columbia was not acting on behalf of or under the control of the United States, nor was it part of a joint investigation. The relevant factors when considering a federal prosecutor's constructive knowledge of Brady material are whether the party with knowledge of the information is acting on the government's "behalf" or is under its "control", the extent to which the two jurisdictions are part of a team, participating in a joint investigation or sharing resources, and whether the federal prosecutor had "ready access" to the evidence. None of those factors applied here, such that the United States was not in constructive possession of the evidence and there was no violation under Brady or Jencks.

Appellate Waiver of Direct/Collateral Review

[This case summarized by Felicia Sarner.]

US v. Mabry, 536 F.3d 231 (3d Cir. July 28, 2008). Mabry's guilty plea agreement, in which he pled guilty to the drug charge in exchange for dismissal of the remaining charges, included an appellate waiver of direct and collateral review. After his sentencing, he filed a habeas petition alleging that counsel was ineffective for failing to file a direct appeal, which the district court denied without a hearing. The Third Circuit granted a certificate of appealability as to whether the waiver was knowing and voluntary, whether it is enforceable, and whether Mabry was entitled to relief on the claims he asserts should have been raised on direct appeal. The Circuit found the direct appeal and collateral review waivers to be knowing and voluntary, and although the district court's colloquy did not elaborate on the miscarriage of justice exception, enforcement of both waivers did not work a miscarriage of justice. Mabry raised only insubstantial issues to raise on direct appeal and did not identify any non-frivolous ground for direct appeal or collateral attack. While Mabry contended that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), there is a presumption of prejudice in counsel's failure to file a direct appeal that entitled him to an evidentiary hearing, the Circuit rejected that because Flores-Ortega did not address whether the presumption controls where the defendant has waived his right to appellate and collateral review, and the validity of the waiver is a threshold issue.

Ineffective Assistance / Jury Trial Waiver

[This case summarized by Felicia Sarner.]

US v. Lilly, 536 F.3d 190 (3d Cir. July 28, 2008). Since the evidence in this drug case relating to the motion to suppress was virtually identical to the trial evidence, the parties agreed to proceed with a non-jury trial and the district judge heard the pre-trial hearing and bench trial together. Before proceeding, the parties confirmed orally their desire to proceed in this manner, but the judge did not directly colloquy Lilly about his jury trial waiver. Lilly was convicted, and subsequently filed a habeas petition alleging ineffective assistance based upon counsel's alleged failure to properly advise him of his right to a trial by jury. The district court denied the petition without granting Lilly an evidentiary hearing. The Third Circuit affirmed after reviewing for abuse of discretion. In considering the Strickland prejudice prong, the proper inquiry is whether, "in the absence of counsel's advice, another fact finder (i.e., a jury) would have been reasonably likely to arrive at a different outcome . . . ." Because Lilly failed to present any evidence that the judge was biased or the proceeding unfair, he did not demonstrate a reasonable probability that the outcome would have been different had he not waived his right to a jury trial, and he therefore was not prejudiced. The Circuit nonetheless encouraged district courts to conduct colloquies in such situations.

Failure to raise a suppression argument (not just a motion) before the district court equals waiver.

In United States v. Rose, 538 F.3d 175 (3d Cir. 2008), the Third Circuit held that failure to raise specific suppression arguments before the district court amounts to waiver and not just forfeiture. The defendant, who proceeded pro se at trial, filed a motion to suppress certain evidence, putting forth four arguments in support of his claim. The district court denied the motion.

On appeal, now represented by counsel, the defendant appealed the district court's denial of the motion to suppress, but this time asserted a basis for the motion not raised before the district court. Recognizing that the issue called into question the interplay between Fed.R.Crim.P. 12 (which would consider the argument waived) and 52(b) (which would have called for a plain error analysis), and recognizing that its own precedent at times supported one conclusion or the other, the Court definitively stated that Rule 12 controlled the matter, and required a finding of waiver unless the defendant could show "good cause" for not raising the argument before the district court. Because the Court did not find good cause to exist, it considered the defendant's argument on appeal regarding his motion to suppress waived.
and not just a suppression motion itself, constitutes