Post-Begay, Possession of a Weapon In Prison Is Not Considered a “Crime of Violence” Under the Career Offender Guidelines

In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months’ imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers." Polk was charged with one count of possession of a prohibited object designed to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2), and pleaded guilty. At sentencing, the District Court determined that Polk’s offense constituted his third predicate "crime of violence" under the Career Offender Guidelines, resulting in a Sentencing Guidelines range of 37-46 months. Without the career offender enhancement, the Guidelines range would have been 27-33 months. Polk did not object to his career offender designation despite the fact that Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581 (2008), had been decided six months prior to his sentencing. The Third Circuit reviewed the District Court’s decision under the plain error standard.

First, the Court held that the District Court erred in sentencing Polk as a career offender because possession of a weapon in prison is not considered a "crime of violence." In United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), the Third Circuit held that possession of a weapon in a prison is considered a "crime of violence" under the "otherwise involves" clause of that definition in the Career Offender Guidelines. After the Supreme Court’s decision in Begay, however, Kenney is no longer good law. In Begay, the Supreme Court considered the "violent felony" provision of the Armed Career Criminal Act (ACCA) and held that "to qualify as a ‘violent felony’ under the ‘otherwise involves’ clause of this provision, an offense must (1) present a serious potential risk of physical injury and (2) be ‘roughly similar, in kind as well as degree of risk posed to the examples [burglary, arson, extortion, or use of explosives] themselves.'"

In Polk, the Third Circuit determined that Begay’s analysis of the "violent felony" provision of ACCA also applies to the "crime of violence" provision of the Career Offender Guidelines. In light of Begay’s applicability, the Court held that "possession of a weapon, even in prison, is not ‘roughly similar, in kind as well as in degree of risk posed," to the enumerated crimes of burglary, arson, extortion, or use of explosives." The Court rejected the government’s argument that Polk’s conduct constituted a crime of violence because the possessory crime occurred in the prison context where no permissible use exists for the possession of a weapon. The Court did not deny the inherent dangers of possessing a shank in prison, but concluded that possession "alone cannot transform a mere possession offense into one that is similar to the crimes listed" in the "otherwise involves" clause of the Career Offender Guidelines. Possession of a weapon is neither aggressive nor violent per se because only the potential exists for aggressive or violent conduct. But not even the serious potential for injury is enough to constitute a crime requiring a career offender enhancement.

Second, although the District Court erred in sentencing Polk as a career offender, that error alone was not sufficient to be characterized as "plain" because Polk did not object to the career offender designation at sentencing. The Court did not need to reach the issue of whether the error was plain, however, because it agreed with Polk’s secondary argument that his attorney was ineffective for failing to raise the Begay issue at sentencing. While defendants generally are not permitted to raise the claim of ineffective assistance of counsel on direct appeal, an exception is allowed where "the record is sufficient to allow determination of ineffective assistance of counsel, [and thus] an evidentiary hearing to develop the facts is not needed." In Polk, Polk's sentencing attorney "freely concede[d] that at sentencing he missed the arguable effect of Begay." Such an admission satisfies the Strickland test. Begay had been decided six months prior to Polk’s sentencing and prejudiced him because the result of the proceeding would have been different if Begay had been considered.

Child Porn: Circuit upholds use of relevant conduct and conditions of release

In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court’s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material.

The district court at sentencing determined Thielemann’s offense level under § 2G2.1, an increase of 10 levels, (offenses causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction), using a cross-reference to uncharged relevant conduct—codefendant’s molestation of a minor carried out at defendant’s inducement via the internet. The Third Circuit affirmed the use of relevant conduct in determining the offense level.

The Court also upheld both special conditions of supervised release. The restriction on possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution where the purpose is to rehabilitate, protect, and deter future conduct, because the offense conduct demonstrated that defendant previously used legal adult pornography to further his sexual interest in children. The restriction on defendant’s access to computers and the internet was also upheld, given the limitations of the restrictions and the fact that Thielemann’s utilized the internet to facilitate actual molestation of a child.

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offense level to 36 and his sentence to 270 months. However, the defendant appealed the partial grant of his motion, arguing that the district court should have treated the guidelines as advisory when adjusting a sentence pursuant to § 3582(c) and therefore granted him a greater reduction. The Third Circuit upheld the re-sentencing, thereby joining the majority of courts which have concluded that Booker does not apply to § 3582(c)(2) proceedings. The court relied on its reasoning in cases involving the determination of a defendant's eligibility for a sentence reduction under § 3582(c). Specifically, the court recognized that as § 3582(c) only serves to reduce a sentence reduction, not increase it, the constitutional holding in Booker does not apply. The court noted that Booker invalidated § 3553(b)(1), which does not cross- reference § 3582(c). The court also determined that Booker applies to full sentencing hearings-whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under § 3582(c)(2).

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson. The defendant communicated only with adult males posing as the stepfather. The grand jury indicted the defendant on one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), as well as knowing possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The defendant pled guilty to the child pornography charge, but proceeded to trial on the attempted enticement charge. He argued that he could not violate § 2422(b) if he did not have direct contact with a minor or someone he believed was a minor. However, he was ultimately found guilty and sentenced to 120 months. On appeal, the defendant again argued that he could not violated § 2422(b) if he used an adult intermediary to facilitate the attempted enticement. Relying upon the legislative history of the statute, policy considerations and common sense, the Third Circuit upheld the conviction. The court reasoned that, as the defendant was charged with an attempted violation of § 2422(b), his crime was complete when he demonstrated his intent to commit the crime and he took a substantial step toward its commission using a means of interstate commerce. The court concluded that the defendant demonstrated his intent to commit the crime via his emails and telephone conversations, and he took a substantial step toward its commission using a means of interstate commerce by arranging the rendevous and discussing how to avoid police protection via email and telephone.

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on January 7, 2005. Lee’s defense at trial was that the registration card showed that Martin/Lee had checked out days before the drugs were found. The hotel staff-person repeatedly testified that the card showed that Martin had checked out in well in advance of the search.

During deliberations, through a jury question, it became clear that the original registration card that had been received in evidence was two-sided, and that the flip side indicated that Martin had extended his stay through January 7th – the day of the search. Lee moved for a mistrial. The court denied the motion and gave a limiting instruction that told the jury that only the front part of the card was in evidence and the back should be disregarded. The Third Circuit reversed, finding that the failure to disclose the reverse side of the card interfered with Lee’s substantial rights and undermined confidence in the verdict. The district court therefore abused its discretion in failing to grant a mistrial.

The Court rejected the government’s argument that it had met its discovery obligation by giving counsel "access" to the exhibit. "Although it may be sound practice," the Court said, "defense counsel is not required to inspect every exhibit at trial to ensure that documents that appear to conform to the copies provided by the government are in fact identical." The Court also rejected the government’s argument that the jury should be presumed to have followed the limiting instruction. "[W]e will not blindly assume that a jury is able to follow a district court’s instruction to ignore the elephant in the deliberation room." Here, the case against Lee was otherwise relatively weak, the registration card was a critical piece of evidence, and the jury "was primed to see the information on the back of the registration card."

The Court limited the reach of its ruling, however. It held only that "[u]nder these highly unusual circumstances . . . it was clear error for the District Court to assume – at least without some inquiry – that the jury would be able to follow the Court’s instruction." It also noted that "undisclosed evidence that upsets a defendant’s trial strategy may be admissible if the defendant has some opportunity to adjust his trial strategy and respond to the new evidence."

The Court also addressed several evidentiary issues that would likely be at issue again at the new trial, ruling that (1) Lee had no expectation of privacy in Boyer’s person; (2) the affidavit supporting the search warrant established probable cause; (3) and Lee’s prior drug trafficking conviction was properly admitted as evidence that Lee intended to distribute any drugs in his possession.

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealability as to three issues: 1) that the trial court’s "reasonable doubt" instruction was unconstitutional; 2) that the Commonwealth’s closing argument at sentencing was unconstitutional; and 3) that Thomas’s counsel was ineffective for failing to life-qualify the jury.

Thomas appealed the District Court’s denial of those three guilt-phase claims; the Commonwealth cross-appealed the sentencing relief on three grounds: 1) that the District Court applied the wrong standard of review; 2) that there was insufficient evidence that Thomas’s trial counsel failed to investigate mitigating evidence; and 3) that any deficiency by trial counsel did not prejudice Thomas. The Third Circuit affirmed the District Court’s denial of the guilt-phase claims, but vacated the District Court’s order granting sentencing relief, remanding for an evidentiary hearing on the extent of trial counsel’s investigative efforts to obtain mitigation evidence.

As a threshold matter, the Court addressed whether the AEDPA deferential standard of review applied to Thomas’s three claims, when they were "adjudicated on the merits" in the lower state court, but the appellate state court dismissed those claims entirely on procedural grounds, as waived. The Court held that in the § 2254 context, AEDPA deference is due only when the state court resolution of petitioner’s claim has preclusive effect, and here, the Pennsylvania Supreme Court’s dismissal on purely procedural grounds "stripped the PCRA court’s substantive determination of Thomas’s claims of preclusive effect." Therefore, because Thomas’s claims were not "adjudicated on the merits" in state court, the Court did not need to apply AEDPA deference, but rather, could review legal and mixed questions of law and fact de novo.

On the merits, first, the Court addressed Thomas’s argument that a trial court instruction on the definition of reasonable doubt that used the phrase "restrain from acting" rather than "hesitate to act" violated due process. The Court held that even though the trial court’s "restrain from acting" verbiage lessened "to some extent" the prosecution's burden of proof, it was "not enough to render its entire instruction unconstitutional."

Second, the Court addressed Thomas’s argument that the Commonwealth’s closing argument at trial improperly invited the jury to consider Thomas’s future dangerousness, and created an unacceptable risk that the jury erroneously believed that Thomas could be released on parole if not sentenced to death. After examining the record, the Court ruled that the Commonwealth’s closing argument was not improper.

Third, the Court addressed Thomas’s argument that trial counsel was ineffective for failing to life-qualify the jury. Noting that the Supreme Court has never imposed on trial counsel the obligation to life-qualify a jury, and that no relevant "prevailing norms of practice" required life-qualifying a jury, the Court found in reviewing the record no indication of a need to life-qualify the entire jury, and no evidence suggesting any probability that trial counsel’s life-qualifying the entire jury would have resulted in at least one juror voting to sentence Thomas to life imprisonment.

With respect to the Commonwealth’s cross-appeal, the Court, first, rejected the Commonwealth’s claim that the District Court improperly reviewed Thomas’s claims de novo, because the Court had found that there had been no state court "adjudication on the merits".

Second, the Court addressed the District Court’s conclusions that: 1) trial counsel was ineffective for failing to investigate and present mitigating evidence, and 2) that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently and therefore did not cure the prejudice resulting from trial counsel’s ineffectiveness in failing to investigate and present mitigating evidence.

In light of the presumption of effectiveness, the Court found that, as to trial counsel’s lack of mitigation investigation, the current state of the record – which it characterized as "sparse" – did not permit affirming the District Court’s conclusion that trial counsel was ineffective. But recognizing that further record development could establish trial counsel’s ineffectiveness in failing to investigate mitigation evidence, and that it was reasonably probable that such evidence could have persuaded at least one juror to vote against the death penalty, the Court remanded the case for a hearing on counsel’s investigative efforts.

Finally, the Court rejected the Commonwealth’s argument that a hearing was unnecessary because even if trial counsel was ineffective, Thomas was not prejudiced, as he waived his right to present mitigating evidence. The Court found that the record did not establish that Thomas knowingly and intelligently waived his right to present all mitigating evidence, and that he would have prevented trial counsel from doing so.

Citing Hodari D., the Third Circuit reverses District Court’s order suppressing evidence.

In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court’s suppression of evidence and remanded for further proceedings.

The facts of the case are as follows: Police officers responded to a dispatcher’s report of an anonymous caller’s observation of a "subject" with a gun at a specific location. Upon arrival at the location the officer’s observed five individuals standing on the front porch of a house. The officer’s exited their vehicle and without seeing any weapons, ordered the individuals to put their hands in the air. All individuals complied, except one - Waterman - who kept his hands in his jacket pockets. The officers, who still had not seen any weapons, removed their firearms and repeatedly ordered Waterman to show his hands. Waterman didn’t comply and, instead, entered the residence. Guns and drugs were subsequently discovered in the residence.

The district court suppressed the recovered evidence concluding that Waterman was "stopped" under Terry when the officers commanded everyone to put their hands in the air. That "stop" lacked reasonable suspicion and therefore was an unlawful seizure warranting suppression.

The Court of Appeals disagreed. Citing the Supreme Court’s decision in Hodari D., the Court noted that a "seizure"does not occur until one of two things takes place: either "physical force/contact" with the defendant or "submission to the assertion of authority." To establish "physical force" there has to be more than just of a "show of authority" - it requires the "application of force" or "laying on of hands." To establish "submission" there has to be more than just a "momentary pause or inaction," - it requires, at minimum, a suspect’s "manifest compliance with police orders."

The Court of Appeals concluded there was neither "physical force" nor "submission" and therefore there was no "seizure." While the Court held that officers drawing their firearms was a "display of force," it nonetheless fell short of the "physical force" required under Hodari D. Likewise, the Court held there was no "submission" because Waterman did not comply with the officer’s commands.

The irony was in the Court’s conclusion that, "had police officers effected a ‘seizure’ on the porch, Waterman’s rights would have been violated" under Hodari D. In other words, if he stayed on the porch and submitted to their authority, the recovered evidence would have been suppressed. But because he retreated, the recovery of evidence was lawful.

Court affirms denial of sentence reduction for eligible crack defendant

Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U.S.C. § 3582(c)(2), the district court found that consideration of the 18 U.S.C. § 3553(a) factors and the safety and welfare of the public made a sentence reduction inappropriate. On appeal, the Third Circuit ruled that: (1) the defendant was not entitled to an evidentiary hearing and the court did not abuse its discretion in failing to hold an evidentiary hearing; (2) the district court did not abuse its discretion by concluding that, despite the defendant's progress since incarceration, the nature of the defendant's crime, his criminal history, his use of firearms, and the need for deterrence and public safety made a reduction inappropriate; and (3) the defendant's unmodified sentence was substantively unreasonable.

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction. Instead, Petitioner stipulated at sentencing to a loss that exceeded $100 million. Near the end of Petitioner's term of imprisonment, the Government sought to remove Petitioner from the United States based on his commission of an "aggravated felony," namely, an offense that involved fraud or deceit in which the loss to the victims exceeded $10,000 (8 U.S.C. § 1101(a)(43)(M)(i)). Petitioner argued that under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), both the "fraud and deceit" and "loss" elements of § 1101(a)(43)(M)(i) must have been found by a jury in order for him to have been convicted of an aggravated felony.

The Supreme Court in Nijhawan v. Holder, No. 08-495 (June 15, 2009) affirmed the Third Circuit's holding that the Immigration Judge could inquire into the underlying facts of the prior fraud conviction to determine whether the loss to the victims exceeded $10,000. Resolving a circuit split on the issue, the Court concluded "that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include [the $10,000 threshold]. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occassion." The Court found that a "circumstance-specific" approach, rather than a "categorical approach," was necessary because (1) the "aggravated felony" statute at issue differed from the ACCA statute at issue in Taylor by listing both generic and specific circumstance offenses, (2) subparagraph (M)(i)'s language, containing the words "in which" (modifying "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements "of" the offense, and (3) applying a categorical approach would leave subparagraph (M)(i) with little, if any, meaningful application. Finally, the Court rejected Petitioner's fairness argument, concluding that Petitioner and others in similar circumstances had the opportunity to contest the loss amount at both the sentencing and deportation hearings.

Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

United States v. Jones, No. 07-2798 (May 20, 2009).
The Third Circuit gives broad rein to a district court’s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (“VICAR”) statute. The defendant was charged with having joined in a retaliatory, drive-by-type shooting on the orders of higher-ranking members of the Double II Bloods gang in East Orange, New Jersey. One person was injured in the shooting but no one was killed. The defendant was sentenced to 22 years’ imprisonment after conviction of, among other offenses, conspiracy to commit murder for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)(5).

At voir dire, following the description to prospective jurors of separate charges brought against certain of Mr. Jones’s six codefendants but not Mr. Jones, all of the codefendants pled guilty. At least one juror, who was dismissed, learned of the codefendants’ pleas via media coverage. By this point, the jury selection process had taken “well over” a month, the court had “pre-qualified approximately 40 jurors out of a pool of approximately 360 based on a detailed questionnaire,” and more than 50 percent of jurors had been excused for cause due to bias against gang members. Following the pleas, the district court instructed jurors to limit their deliberations to the particular crimes charged against the defendant and not to speculate on how he came to be tried alone. The Third Circuit found no abuse of discretion in the district court’s rejection of Mr. Jones’s request to restart the voir dire process with a new jury pool. The court, it found, had made a “substantial effort” to ascertain jurors’ ability to be impartial, “particularly on specific issues,” and had instructed the jury “cautiously.”

The Third Circuit also rejected the defendant’s Rule 401 and 403 challenges to the admission of other gang members’ activities. These spanned a multiple-year period, whereas the charges against the defendant arose from a single incident on one date. Among the evidence admitted was an autopsy photograph of a murdered Double II Bloods member, the “brutal face slashing” of a Double II Bloods member by another member while in jail, and testimony concerning drug-running operations between New Jersey and New York City. The Third Circuit found no abuse of discretion in the district court’s determination that the potential for prejudice did not substantially outweigh this evidence’s probative value on VICAR elements going to the existence of a racketeering enterprise and a connection to interstate commerce. It noted that the government “took steps to pare down” evidence it had planned to introduce against other codefendants, whereby “a trial expected to last up to six months was reduced to five full days of testimony.”

Sentencing-wise, the Court found no procedural error in the district court’s failure to formally rule on the defendant’s motion for a downward departure for overrepresentation of his criminal history. It was sufficient that the government’s sentencing memorandum had acknowledged the “plausibility of a departure” and that the record did not indicate the district court to have thought it lacked discretion to depart. A second contention of procedural error, which the Court called “plausible … but ultimately unconvincing,” was a claim that the district court had given insufficient consideration to the disparity between the defendant’s sentence and that of a codefendant who had participated equally in the shooting incident. Although the codefendant received a sentence of only four years (compared with defendant’s 22), the Circuit held the district court to have given “meaningful consideration” to the disparity factor. The opinion is somewhat ambiguous as to precisely what record the district court made of its reasoning, but for its part, the Circuit notes that the codefendant had pled guilty, accepted responsibility, denounced his gang affiliation despite a “looming threat of violent retaliation,” and substantially cooperated with the government, including by testifying against Mr. Jones. The Third Circuit also found Mr. Jones’s sentence, which reflected a 44-month downward variance, not to be substantively unreasonable.

Mr. Jones fared no better on the one issue reviewed de novo by the Circuit, which was the sufficiency of evidence to support the existence of an agreement to commit murder and thus the conspiracy conviction. An agreement could be inferred from the government’s showing that the defendant, after previously pledging to kill for the gang, had been dispatched from an organizational meeting with a loaded gun and instructions to “kill” or “RIP” (meaning “rest-in-peace”) anyone found at the location of the shooting. The Court also noted that the defendant was “required to follow the orders of senior members,” acted in concert with a second gang member, and was watched over by a third member assigned to make sure the shooting was carried out.

Reversing course, Third Circuit defers decision on whether Section 666 bribery requires proof of a quid-pro-quo

Prompted by a rehearing petition supported by amicus National Association of Criminal Defense Lawyers, the Third Circuit today amended its opinion in United States v. Bornman, No. 07-3447 (3d Cir. Mar. 6, 2009)--blogged here--to delete what had been a brief statement that the federal bribery statute (18 U.S.C. 666) does not require evidence of a quid-pro-quo. The effect of today's amendment, issued in the form of this order, is to defer the thorny question of whether, under Section 666, the government must show that the thing of value was given in exchange for the official act. The Circuits are split on this issue.

Has the Third Circuit Ended Crack Litigation?

The decision in United States v. Doe, http://www.ca3.uscourts.gov/opinarch/083968p.pdf, holds that if the starting point for the sentence is not lowered by the retroactive crack amendment, a defendant is ineligible for relief under 18 U.S.C. section 3582(c)(2). This seems to put an end to litigation on behalf of career offenders who receive departure sentences, or those subject to mandatory minimum sentences who received 5K/3553(e) relief.

The decision is based on what the panel calls the "second element" of section 3582(c)(2), which provides that reductions in sentence should be "consistent with" policy statements of the Sentencing Commission, and the Commission's policy statement in USSG section 1B1.10 that defendants are not entitled to relief unless the amendment has the effect of "lowering the defendant's applicable guideline range." Because its ruling is based on the "second element," the decision does not address Doe's "based on" or rule of lenity arguments.

Judge Fuentes writes a concurring opinion that sounds almost like a dissent, commenting that it is unclear (though not grievously ambiguous, so no rule of lenity relief) that the Commission intended this result and that the Court's interpretation creates some serious inequities among crack defendants.

Doe will seek rehearing en banc. The petition is due on May 14th.

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III. The district court denied Russell's request for a variance, pursuant to 18 U.S.C. § 3553(a), from the 70-to-1 ratio recommended by the guidelines for his base offense level. As an alternative, Russell had suggested a 25-to-1 ratio, which would result in a sentence of 60 months, the statutory mandatory minimum sentence.

At sentencing, the district court had relied upon the Third Circuit's decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to conclude that it did not have the authority to reject the guidelines' crack-to-powder ratio, nor to fashion an alternative ratio of its own. Russell argued that, subsequent to his sentencing, the Supreme Court rendered two decisions which expressly held that the sentencing court may in fact categorically reject the guidelines' crack-powder differential. In Kimbrough v. United States, 128 S.Ct. 556 (2007), the High Court recognized that a district court is permitted to categorically reject and vary from the crack guidelines. Recently, in Spears v. United States, 129 S.Ct. 840 (2009), the Court ruled that a district court is also permitted to apply a different crack-powder ratio which it believes will correct the disparity.

The Third Circuit reviewed the sentence for both an abuse of discretion and plain error. The court concluded that the district court's ruling should be remanded under either standard of review.

Based upon Kimbrough and Spears, the Third Circuit determined its prior ruling in Ricks was no longer good law. By doing so, the court implicitly overruled United States v. Gunter, 527 F.2d 282 (3d Cir. 2008)("Gunter II"), which relied on Ricks. The court ultimately vacated Russell's sentence and remanded for resentencing so that the sentencing court could impose a sentence in light of its "clarified authority " under Kimbrough and Spears.

Supreme Court Limits Belton Searches

The Supreme Court issued an opinion today in Arizona v. Gant, 2009 WL 1045962 (April 21, 2009), holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest. The Court's decision places a limit on the Belton rule, allowing search of passenger compartments, to situations where the interests of officer safety or preservation of evidence (Chimel v. California) are present. In other words, if the defendant is secured in a patrol car already - no warrantless search!

Cert granted in Third Circuit case striking down criminal prohibition on depictions of animal cruelty

The Supreme Court this morning agreed to decide whether 18 U.S.C. 48, which makes it a crime to create, sell, or possess depictions of animal cruelty, is invalid under the Free Speech Clause of the First Amendment. The en banc Third Circuit had struck down the statute last summer by a vote of 10-3, in U.S. v. Stevens, No. 05-2497 (3d Cir. July 18, 2008). The case will be heard in the October 2009 Term.

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence. The panel held that the district court erred in not granting a subpoena for Olhovsky’s treatment provider to testify, failed to consider mitigating evidence, and imposed a harsher than necessary sentence (even though the sentence was below-Guidelines).

Olhovsky was barely 18 at the time of his arrest, and had a very sad background, including severe birth defects, divorced parents, and a disabled mother. He was bullied and teased at school, and spent much of his time alone in his room with a computer. He was so depressed and suicidal that the was admitted to a psychiatric facility and had cut himself with a knife. He traded child pornography on a website that was infiltrated by the FBI, and was found to have over 600 images stored on his computer, including photographs of prepubescent children engaged in sex with adults. He had been viewing child pornography since he was 15. He admitted his involvement, waived indictment, and pleaded guilty.

During his pretrial release, he participated in mental health counseling and sex offender treatment through Pretrial Services. His treatment provider wrote a letter – the first of its kind he had ever written – extolling Olhovsky’s progress in treatment, explaining that his offense was motivated primarily by isolation and immaturity, and urging a non-prison sentence for Olhovsky’s protection and to prevent regression. Olhovsky’s attorney sought to call the treatment provider at sentencing, but Pretrial Services threatened that the provider’s contract would be canceled if he assisted the defense, unless he were subpoenaed. The district court refused to grant the subpoena, under the mistaken belief that the law did not authorize compelling the testimony of an expert and because live testimony was unnecessary since the provider had submitted the letter.

In imposing sentence, the district court emphasized the harm that trading child pornography inflicts. It expressed concern that Olhovsky could "turn around and become again a predator – a pedophile monster," despite the letter from the treatment provider and similar findings by other experts. As the Third Circuit said, "[i]t is not at all clear what (if any) basis the court had for making [that statement] . . . . In fact, the entire record is to the contrary."

The Subpoena. The Third Circuit found it "clear that the district court committed legal error in concluding that it could not subpoena [the treatment provider]." The error was not harmless, given the district court’s concerns about public safety and recidivism. "[W]e will not ignore," the Court said, "the potential force of a conversation with a treating psychologist specializing in the treatment of sex offenders who had been treating Olhovsky for almost two years."

Procedural Reasonableness. Because the district court failed to meaningfully consider all of the 3553(a) factors, the Court found the sentence procedurally unreasonable: "Here, it is not at all apparent that the court actually considered the lengthy, very specific and highly positive reports of any of the three defense experts . . . . [W]here, as here, the record strongly suggests that some of the statutorily prescribed sentencing factors were ignored, we cannot conclude that the resulting sentence was reasonable."

Substantive Reasonableness. The Court found that the district court "was so appalled by the offense that it lost sight of the offender." While it acknowledged that a prison sentence could be reasonable because trading child pornography is an extremely serious crime, six years was too much: "Given the factual and procedural error here, it was substantively unreasonable to sentence Olhovsky to six years imprisonment." The Court remanded for imposition of "a reasonable sentence based upon all of the § 3553(a) factors, including the ‘overarching’ principle of parsimony."

NOTE: This opinion was written by Judge McKee, who was in the majority in Tomko, but joined by Judge Rendell, who was in the dissent. (The third member of the panel was Judge Tashima, of the Ninth Circuit.)

PRACTICE TIP: Even if you have a less sympathetic defendant, consider seeking a below-Guidelines sentence on the basis that the Guidelines lack any empirical foundation. This argument is presented in great detail in a paper by AFPD Troy Stabenow, which is available on www.fd.org. Many courts around the country have granted variances based on the irrationality of the child porn guidelines alone.

Closely Divided En Banc Court Affirms “Gilded Cage” Sentence: Gall requires great deference to district court sentencing decisions

In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007). Judge Smith wrote the opinion affirming the district court’s sentence, and was joined in the majority by McKee, Barry, Ambro, Fuentes, Chagares, Hardiman, and Jordan.

The district court had sentenced Tomko, a first-time, white collar, tax fraud defendant to three years of probation (the first of which to be served in home detention), 250 hours of community service, and the statutory maximum fine of $250,000. The advisory Guidelines had called for a prison sentence of 12-18 months and a fine of $3000-30,000. When the case was first reviewed, the panel reversed the sentence, finding it procedurally unreasonable, because the district court did not adequately address the need for general deterrence, and substantively unreasonable, because instead of prison, the court sentenced Tomko to serve home detention in the mansion that was at the center of the tax fraud.

Noting that "[if] any one of a significant number of the members of this Court – including some in today’s majority – had been sitting as the District Judge, Tomko would have been sentenced to some time in prison," the en banc court nonetheless deferred to the sentencing judge, citing Gall’s reasoning that "the sentencing judge is in a superior position" to determine the appropriate sentence. Gall, 128 S. Ct. at 597. "It will be a rare case," the Court stated, "when it is clear that no acceptable reasoning can justify a given sentence. This is not one of them."

The record made clear that the district court had considered the government’s arguments that (1) crimes like Tomko’s deserved imprisonment; and (2) a non-prison sentence would send the message that wealthy offenders could buy their way out of prison. The record also contained support for the variance granted. Indeed, the Court found significant that the government had not disputed any of the facts cited by the district court in support of its sentence – Tomko’s status as a first-time offender, his philanthropic efforts, and the threat that his incarceration would pose to his 300 employees. The district court’s basing the sentence on these facts was "logical and consistent with the factors set forth in section 3553(a)."

The Court did not take the opportunity presented by the defense bar’s amicus brief to examine the irrationality of the Sentencing Guidelines’ treatment of white collar crimes. Nor did it address the question whether the Guidelines improperly limit the use of probationary sentences. The Court did emphasize, however, that the variance in Tomko’s case – twelve months – "was not substantial."

Five members of the en banc court, led by Judge Fisher, dissented (Rendell, Scirica, Sloviter & Cowen). The dissenters were concerned that the facts relied upon by the district court did not distinguish Tomko from other tax evaders. Congress and the Commission intended that "mine-run" fraud offenders like Tomko receive prison sentences. White-collar criminals had historically been underpunished, and both the Sentencing Reform Act and the Guidelines aimed to remedy that. It criticized the district court for granting a variance based on factors that were discouraged by both the SRA and the Guidelines. Gall, the dissent argued, approved a variance under very special circumstances – a youthful conspirator who had withdrawn from his life of crime and become a responsible adult. Other co-conspirators had been punished harshly enough that deterrence was not compromised by the variance in Gall, the way it would be here. The dissent also declined to address the defense bar’s amicus arguments.

PRACTICE TIP: A copy of the amicus brief attacking the white collar crime Guidelines and defending probationary sentences as consistent with the SRA and § 3553(a) is available at http://www.fd.org./

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.