Prisoner who through no fault of his own did not receive notice of district court order dismissing his civil action not entitled to file a late appeal to the court of appeals

The lesson of Baker v. United States Government Officials, Nos. 08-2288 and 08-2365 (February 13, 2012)— which applies to appeals of civil orders (including those under §§2244 and 2255)— is that no news for five months means check the district court dockets.  Baker filed a tort claim in the U.S. District Court for the Western District of Pennsylvania alleging he was harmed by second hand smoke in his prison.  While the case was pending in 2005, Baker was transferred from FCI Lisbon (the opinion notes that there is no FCI Lisbon but rather an FCI Elkton in Lisbon, Ohio, but in order to avoid confusion, the opinion adopted the prison name used in the docket entries) to FCI Lewisburg.  On July 11, 2006, the district court granted the government’s Fed.R.Civ.Pro 12(b)(6) motion, but sent the dismissal order to FCI Lisbon, [and] as a result, the order was returned to the district court.  No one in the clerk’s office made any attempt to locate Baker.  Seven months later, on February 9, 2007, the docket notes that Baker sent a letter to the clerk in December, 2005 notifying the clerk’s office of his new residence in Lewisburg. A second February 9, 2007 entry notes that Baker wrote to the clerk explaining that he had received word of the dismissal when he received a docket sheet and as a result filed neither an appeal or motion for reconsideration. He asked for a copy of the dismissal order and was sent one — on January 7, 2008!

            Before receiving the dismissal motion, Baker, on May 31, 2007, filed several motions, among them: a post-judgment motion under Fed.R.Civ.Pro. 60(b); a motion to file a notice of appeal under Fed.R.Civ.Pro. 4(a)(1); a motion to toll the time to take an appeal under Fed.R.Civ.Pro. 4(a)(4); and a motion to reopen the time to take an appeal under Fed.R.Civ.Pro. 4(a)(6). On January 16, 2008, Baker supplemented his May 31, 2007 motion, filing a motion to alter or amend the judgment under Fed.R.Civ.Pro. 59(e). In all of these motions Baker blamed the prison for his not receiving the dismissal order, preventing him from filing timely motions.  On January 31, 2008, the District Court denied all of the motions.  Baker filed another motion to reconsider under Fed.R.Civ.Pro. 59(c). This was denied on April 10, 2008, and Baker filed a timely appeal from that order.

Baker sought rulings that his appeal of the July 11, 2006 dismissal was timely pursuant to Fed.R.App.Pro 4(a)(4) and (6). Fed.R.App.Pro 4(a)(4) allows a district court to reopen the appeal period for fourteen days after the date to reopen is entered if it finds that the moving party did not receive notice of the order under Fed.R.Civ.Pro. 77(d) within 21 days of its entry, the motion is filed 180 days after judgment is entered or 14 days after Fed.R.Civ.Pro. 77(d) notice of entry of the judgment is received (whichever is earlier), and the district court finds no party would be prejudiced.  Fed.R.App.Pro 4(a)(6) allows the time to appeal to run from the date of a ruling on a timey filed Fed.R.Civ.Pro. 59 motion.

The Court first dealt with the Fed.R.App.Pro 4(a)(6). Baker asserted that the time to file his Fed.R.Civ.Pro. 59 motion ran from February, 2007, when he learned of the July 11, 2006 order.  Relying on Bowles v. Russell, 551 U.S. 205 (1977), the Court ruled that Rule 4’s time limits cannot be equitably tolled, as the time limit to appeal is derived from a statute, it is jurisdictional, and courts are without power to expand them. The delay caused by the prison sending the notice back to the district court, rather than forwarding it to Baker, could not be subtracted from the time between the issuance of the order and the time the appeal was due.  The mailbox rule for determining when a prisoner files a document does not stretch so far to allow the entry of an order to be the date a prisoner receives it.

The Court then dealt with whether under Fed.R.App.Pro 4(a)(4) his Fed.R.Civ.Pro. 59 motion could be deemed timely, allowing his appeal to proceed.  The Court ruled, on the same day it ruled on Baker’s case, in Long v. Atlantic City Police Department, No. 06-4732 (February 13, 2011), that a Fed.R.Civ.Pro 59(e) motion can be deemed timely when a prisoner alleges and proves that prison official delayed or interfered with the delivery of a final order of the district court.  Baker’s problem was not the prison though.  Rather, the error was the district clerk’s sending the notice of the dismissal to the wrong prison. Charitably, the Court noted, “We recognize that this conclusion works an unfortunate result for Baker.  The result is distressing, given that the clerk’s office seriously erred in failing to update Baker’s address of record until more than a year had passed from when he notified the District Court of his move.”  (Perhaps this soothes Baker’s inner Mr. Bumble.)  As a result the only order the Court could review was the district court’s ruling that the Fed.R.Civ.Pro. 59(e) was not timely filed, and that, the Court of Appeals ruled, was correct.

Defendants in Multi-National, Internet-Based, Controlled-Substance-Distribution Case Seek Relief on Multiple Grounds Without Success

In United States v. Bansal, Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526, 07-4618, 09-1827 (3d. Cir. December 14, 2011), the Third Circuit discussed and then denied 13 of the 75 issues presented in this case involving a multi-national, internet-based, controlled-substance-distribution scheme. In the interest of brevity, the issues addressed in this 69-page opinion are as follows:

(1) Whether the money laundering convictions impermissibly merge with the underlying predicate felonies under United States v. Santos, 553 U.S. 507 (2008)?

(2) Whether the indictment insufficiently stated the elements of a CCE offense, and whether the conviction was flawed due to improper jury instructions and insufficiency of the evidence?

(3) Whether various emails intercepted pursuant to two warrant-authorized wiretaps should have been suppressed because they were not immediately sealed upon the warrant’s expiration pursuant to 18 U.S.C. § 2518(8)(a), which requires that the recordings of the contents of any wire, oral or electronic communication obtained pursuant to a search warrant be sealed immediately upon the expiration of the period fo the order?

(4) Whether the District Court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), during sentencing because the jury made no finding of fact as to whether the substances involved in the case were Schedule II, III or IV substances?

(5) Whether the conspiracy convictions are invalid on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time of the indictment?

(6) Whether the money laundering convictions are invalid because the money was laundered from lawful sources, i.e. because it was legal at the time to sell controlled substances over the internet without prescriptions?

(7) Whether the conspiracy conviction was a misdemeanor rather than a felony - - a conclusion that if correct, might undermine the money laundering conviction which requires proceeds to be from specified felonies, alter the Sentencing Guidelines calculations or bear upon the mutual understanding of the forfeiture agreement?

(8) Whether the grand jury proceedings were tainted by the presence of an allegedly improperly appointed Special AUSA; whether prosecutors made material misstatements and elicited false testimony during the grand jury proceedings; whether the indictment insufficiently stated the elements of the CCE charge because it did not allege with particularity three predicate felonies upon which a valid CCE charge must rely; and whether the District Court improperly limited public and press access to the pretrial jury selection procedures when it conducted a portion of the voir dire (individual voir dire) about sensitive subject in the presence of the parties in a closed jury room adjacent to the courtroom?

(9) Whether the District Court erred when it failed to suppress evidence obtained from the internet service providers that managed his email accounts because the five magistrate judges who issued the warrants lacked jurisdiction to do so because the warrants were ultimately executed on internet service providers in California, the warrants were unconstitutional general warrants, the warrants were invalid because they lacked probable cause, and the agents executing the warrants failed to adhere to the notice requirements of Rule 41 when they did not provide the defendant with a copy of the warrants; whether the District Court erred when it failed to suppress evidence obtained during the search of a garage because the garage was beyond the curtilage; whether the District Court erred when it failed to suppress evidence obtained from the defendant’s vehicle after his arrest?

(10) Whether the government presented sufficient evidence at trial to support the jury’s verdict of guilty with respect to the controlled substance distribution and importation charges?

(11) Whether various items of evidence (domestic and foreign business records, Excel spread sheets, bank check and wire-transfer exhibits, testimony of IRS Agent re domestic and international wire transfers, website screenshots, and summary exhibits) were admitted at trial in violation of the 6th Amendment’s Confrontation Clause and the Federal Rules of Evidence?

(12) Whether the District Court erred when it instructed the jury on certain matters including, advising them as a matter of law that each of the drugs listed in the indictment were controlled substances, the definition of "business enterprises involving narcotics", a cautionary instruction re cooperating witnesses and its instruction to consider whether witnesses who have pleaded guilty have an incentive to lie, instructing the jurors to "seek the truth", a "willful blindness" instruction re deliberate indifference, and an instruction on the elements of conspiracy and on the intent element of felony misbranding?

(13) Whether the government withheld exculpatory evidence (certain intercepted phone calls, emails, an indictment filed against coconspirators in New York, proffer statements from one of coconspirators and impeachment evidence against a coconspirator) in violation of Brady v. Maryland, 373 U.S. 83 (1963), and whether the government intruded into the defense camp by intercepting telephone calls he made while incarcerated in a federal detention center?

AMD 691 Vitiates Precedent that USSG §2K2.1(b)(6) Does Not Apply When the Predicate is Burglary of the Firearms that are the Subject of the Conviction

In United States v. Keller, Nos. 11-1172-1173 (3d. Cir. December 14, 2011), the Third Circuit vacated the sentence in this burglary of a gun shop case and remanded to the District Court to recalculate the guidelines range by applying the four-level enhancement in USSG §2K2.1(b)(6) for use or possession of any firearm or ammunition in connection with "another felony offense".

Keller pled guilty to conspiracy against the United States, stealing firearms from a federally licensed firearms dealer and possession of unregistered firearms, in violation of 18 U.S.C. §§ 371, 922(u), and 26 U.S.C. § 5861(d). Although the Probation Office included the four-level enhancement in Keller’s guidelines calculations, the District Court found that the enhancement did not apply. The Government then appealed.

In ruling in favor of Keller, the District Court followed existing Third Circuit precedent in United States v. Fenton, 309 F.3d 825 (3d Cir. 2002), United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004) and United States v. Navarro, 476 F.3d 188 (3d Cir. 2007).

However, in 2006, the Sentencing Commission proposed an amendment to USSG §2K2.1 in order to resolve a Circuit conflict (Amendment 691). This amendment removed Application Note 15, which said that "another felony offense" refers to offenses other than explosives or firearms possession or trafficking offense, and inserted a new Application Note 14 which said that the enhancement applies if the firearm or ammunition facilitated or had the potential of facilitating "another felony offense" or another offense. It also indicated that the enhancement applies in a case in which a defendant who during the course of a burglary finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm, during the course of the burglary, and in the case of a drug trafficking offense, in which a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia. Amendment 691 noted that the enhancement is warranted because the presence of the firearm has the potential of facilitating "another felony offense" or another offense. The Third Circuit held that it was bound by this commentary, as provided in United States v. Stinson, 508 U.S. 36 (1993).

Despite that fact that the Circuit held in Fenton that the offense of burglary to steal firearms could not serve as the predicate for a USSG §2K2.1(b)(6) enhancement, the Commission sided with those courts of appeal that had held to the contrary. Therefore, the rule stated in Fenton and reaffirmed in Lloyd and Navarro is no longer valid to the extent it was applied to the burglary and drug trafficking offenses referenced in Application Note 14.

Finally, the Court determined that Amendment 691 is not plainly erroneous or inconsistent with USSG §2K2.1(b)(6), as provided in Stinson, 508 U.S. at 47.

The Second Amendment does not protect a person legally entitled to possess a firearm who lives with a felon from being charged with aiding and abetting under 922(g). And in determining the sufficiency of the charge in defendant’s Rule 12(b)(3)(b) motion to dismiss, the District Court should not ordinarily stray outside the four corners of the Indictment.

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happens to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

In determining the sufficiency of the charge, the District Court took into consideration discovery, the affidavits of probable cause supporting the search warrant, and the prosecutor’s remarks made during Hall’s guilty plea hearing. The District Court concluded that this evidence failed to establish a connection between Huet and Hall’s possession.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession. The Court characterized the District Court’s review of facts outside the four corners of the Indictment as a “novel procedure” that “impermissibly expanded the scope of its review at the Rule 12 stage” since in reviewing a Rule 12 motion, the court must accept as true all facts alleged. The Court noted, without deciding, that if there were a stipulated record or if immunity issues were implicated, a Rule 12 dismissal might be justified on sufficiency of evidence grounds — but that’s not this case. Finally, the Court ruled that the District Court erred in faulting the Government for not including in the Indictment specific facts on how Huet aided and abetted. The Court said that the Indictment satisfied Rule 7(c)(1)’s requirement of a “plain, concise, and definite written statement.”

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment does not shield Huet from being charged with aiding and abetting a felon to possess a firearm, reasoning that Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon: the Second Amendment does not permit Huet to facilitate Hall’s illegal possession.

Attorney's failure to conduct adequate investigation of mitigating circumstances constituted ineffective assistance of counsel

In Blystone v. Horn, Nos. 05-9002 & 05-9003 (3d Cir. Dec. 22, 2011), the Third Circuit denied the government's cross-appeal and upheld the district court's conclusion that trial counsel in a capital case provided ineffective assistance of counsel by failing to adequately investigate mitigating circumstances for the defendant's punishment phase of his death penalty case even though the defendant had indicated that he did not wish to present a mitigation case to the jury. The Court held that the duty to conduct a reasonable investigation of mitigating evidence exists independently of the duty to present a mitigation case to the jury. In fact, the Court found, the duty to conduct a reasonable investigation is a "necessary predicate" to the decision of whether to present a mitigation case.

Here, the trial attorney conducted a minimal investigation involving only four of the defendant's family members. He solicited no expert mental health testimony and failed to examine extensive institutional records accumulated by the defendant because the defendant had chosen to forego the presentation of his own testimony and that of his family members. The Third Circuit concluded, however, that the fact the defendant had chosen to forego presentation of the mitigating evidence the lawyer had collected did not permit the inference that, had counsel competently investigated and developed expert mental health evidence and institutional records, the defendant would have also declined their presentation.

With regard to the defendant's direct appeal, the Third Circuit held that a timely Rule 59(e) motion to amend or alter a judgment based on newly discovered evidence is not a second or successive petition, whether or not it advances a claim, and therefore such a motion lies outside the reach of AEDPA's jurisdictional limitations on collateral attacks. Nevertheless, the Court found that the defendant's evidence was not newly discovered as it had been in the defendant's possession for many months before the district court denied habeas relief. Accordingly, the Third Circuit affirmed the district court's denial of the defendant's Rule 59(e) motion.

Fact that co-conspirator helped plan robbery that led to high speed chase insufficient to warrant U.S.S.G. §3C1.2 enhancement

Defendant Dwayne Cespedes was part of a three-member conspiracy which planned and executed an armed bank robbery. After removing more than $20,000 from the bank safe, Cespedes and co-conspirator Michael Grant entered the getaway car driven by co-conspirator Curtis Whitehurst. Whitehurst refused to submit to an attempted traffic stop and led police on a high speed chase through two counties. During the chase, Cespedes and Grant got out of the car and fled on foot, while Whitehurst continued his reckless driving, ignoring traffic laws, running stop signs, traveling in the wrong direction on certain roads and nearly striking several pedestrians in a crosswalk.

At Cespedes's sentencing, the district court applied a two-level enhancement for recklessly endangering others while fleeing from law enforcement officers pursuant to U.S.S.G. §3C1.2. The court rejected Cespedes's objection that the enhancement was improper because he never possessed control over the getaway vehicle and had exited the vehicle due to his co-defendant's erratic driving. On appeal, the Third Circuit, in United States v. Cespedes, No. 10-3432 (3d Cir. December 21, 2011), joined a number of other circuits in concluding that some form of direct or active participation by a defendant is required in order to apply the §3C1.2 enhancement. The Court noted that Application Note 5 to §3C1.2 provides that a defendant is only accountable for the reckless conduct of another under §3C1.2 if the defendant "aided or abetted, counseled, commanded, induced, procured, or willfully caused" the reckless conduct. Thus, where a defendant is merely a passenger in a vehicle fleeing from police, a district court must clearly indicate on the record how the defendant was responsible for the driver's conduct. The proof here, indicating only that the conspirators collectively planned a robbery that led to a high speed chase was inadequate to qualify Cespedes, a passenger in the getaway car, for a reckless endangerment during flight enhancement. Accordingly, the Court vacated Cespedes's sentence and remanded his case for resentencing without the enhancement.

Court Errs by Not Considering Postsentencing Rehabilitation on Remand after Pepper

In United States v. Salinas-Cortez, No. 11-1580 (3d Cir., November 8, 2011), the defendant challenged the sentencing court’s rejection of his request for a downward variance based upon postsentencing rehabilitation. In Salinas-Cortez, the defendant pled guilty to possession with intent to distribute more than five kilograms of cocaine, as well as conspiracy to do so. At his initial sentencing hearing, the defendant requested a downward adjustment based upon his minimal or minor role in the offense. The probation office claimed in the Presentence Report that the defendant had more than a minimal or minor role in the offense. The sentencing court, at this first proceeding, adopted the PSR without specifically addressing the defendant’s request. The Third Circuit vacated this initial decision, ruling that the sentencing court erred when it failed to address the defendant’s colorable argument for a minor role adjustment. On remand, the defendant also requested a reduction based upon his postsentencing rehabilitation. The sentencing court again rejected the defendant’s request, reasoning that it did not have the authority to consider any other issue on remand except the previously-requested minor role adjustment. Approximately one week after the sentencing court’s decision on remand, the U.S. Supreme Court decided United States v. Pepper, 131 S.Ct. 1229 (2011). The High Court in Pepper addressed the issue of whether, after the original sentence has been set aside on appeal, a sentencing court may consider evidence of postsentencing rehabilitation to support a downward variance. The Court answered in the affirmative, reasoning that information regarding the defendant’s history and characteristics historically has been highly relevant to the sentencing process. The Third Circuit interpreted Pepper to conclude that the defendant’s postsentencing rehabilitation is an essential part of his history, and therefore relevant to determine his likelihood of recidivism. The court in Salinas-Cortez concluded that, while the appellate court retains the authority limit the scope of a sentencing hearing on remand, such limitation must be explicitly instructed. The court ultimately ruled that its decision to remand the defendant’s original sentence did not dictate that the sentencing court could consider only the defendant’s previously-requested minor role adjustment. Consequently, the Third Circuit remanded the sentencing once again to afford the sentencing court the opportunity to address the defendant’s request for a downward variance based upon postsentencing rehabilitation.

*Congratulations to Supervisory Assistant Federal Defender David L. McColgin on this mighty win “on the papers”! He will surely be missed here in the Eastern District of PA, as he has decided to take his “mojo” up north to Vermont.

Court finds PA Terroristic Threats Prior to be Crime of Violence

United States v. Mahone, 2011 WL 5153699 (Nov. 1, 2011).

Mahone pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mahone objected to the base offense level in the PSR, calculated under U.S.S.G. § 2K2.1(a)(2) at 24 because he had "at least two felony convictions of either a crime of violence [ (COV) ] or a controlled substance offense." Mahone asserted that one of his priors, a 1994 Pennsylvania conviction for making terroristic threats in violation of 18 Pa. Cons.Stat. § 2706, did not qualify as a COV.

At the time Mahone incurred the prior conviction, the statute made it unlawful for a person to:

"threaten[ ] to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience."

18 Pa. Cons.Stat. § 2706 (1972).

Application of the formal categorical approach showed the offense to be broader than the definition of COV under U.S.S.G. § 4B1.2(a)(1). However, § 2706 is phrased in the disjunctive, and the court applied the modified approach, outlining § 2706 to determine if there was a variation that could constitute a COV. (Since Mahone’s conviction, the PA legislature has rewritten the statute into three distinct subsections, because the Court found the statute has always been divisible into the three enumerated offenses, the analysis is the same).

The court next concluded that the subsection prohibiting a threat to commit a crime of violence with intent to terrorize another person, of which Mahone was convicted, may qualify. Next the Court re-employed the modified approach to determine whether the underlying state crime of violence could satisfy the requirements for a federal COV.

The charging document and colloquy in this case showed that the predicate PA "crime of violence" was "criminal homicide," a statutory provision states that prohibits "intentionally, knowingly, recklessly or negligently cause[ing] the death of another human being." Despite the fact that the PA crime of violence contained reckless and negligent mens reas which would not satisfy the federal COV standard, the Court concluded that the only variations of the criminal homicide statute that could serve as the predicate crime of violence for purposes of § 2706 is the act of intentionally or knowingly causing the death of another, because a person cannot threaten to terrorize another with a reckless act.

Continuing offense predating Guidelines harshening + continuing offense following Guidelines harshening + U.S.S.G. § 3D1.2 grouping + one book rule...

...equals no ex post facto prohibition on applying harsher Guidelines.

The Third Circuit decided United States v. Siddons, Case No. 10-1350, on October 3, 2011. Mr. Siddons raised four issues on appeal: (1) the district court’s denial of his request to withdraw his guilty plea; (2) the district court’s applying U.S.S.G. § 2B1.1(b)(16)(A) (2008) to increase his offense level by four; (3) the district court’s applying an obstruction of justice enhancement to increase his offense level by two; and (4) the district court’s varying above the Guidelines. The Third Circuit affirmed the district court on all four, and discussed only the second in significant detail. This post follows the Court's lead.

The text of § 2B1.1(b)(16)(A) (2008) was added to the Guidelines in 2003 (and currently resides at § 2B1.1(b)(17)(A)). It enhances a defendant’s offense level by four where the offense involved a violation of securities law and the defendant was, among other things, an investment advisor. Mr. Siddons had been an investment advisor when conduct relevant to his offense – but not the offense conduct itself –started, in 2002, but was no longer one by the time the Guideline went into effect in November, 2003. He argued that the district court erred in two ways when it applied the enhancement: First, by applying the Guideline when his offense conduct didn’t meet the prerequisites, and second, by applying the Guideline when doing so violated the ex post facto clause.

The Third Circuit rejected the first argument out of hand. It held that because his 2002 behavior as an investment advisor was relevant conduct to his offense pursuant to § 1B1.3, it was part of the calculation of his offense level under § 2B1.1. It then rejected the second after a more in-depth discussion of the combined effects of offense grouping under § 3D1.2, the “one book” rule, and the continuing nature of Mr. Siddons’s offenses:

We agree with those Courts of Appeals that have found no ex post facto violation when a court groups continuing, related conduct and applies the Guidelines Manual in effect during the latest-concluded conduct. This is so because the grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of his or her last offense in a series of continuous, related offenses . . . . Due to the grouping rules at § 3D1.2(d) and the one-book rule at § 1B1.11, Siddons was on constructive notice that the November 1, 2003 enhancement could apply to his entire scheme, should he continue the conduct after the date of enactment. As the Eighth Circuit aptly stated, “it was not the amendments to the Sentencing Guidelines that disadvantaged [Siddons], it was his election to continue his criminal activity [after the effective date of the enhancements]."

The Third Circuit's position thus is consistent with the views of the Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. So far, only the Ninth has taken a contrary view.

The Sentencing Enhancement Under 18 U.S.C. §3147 Authorizes Courts to Add Up to Ten Years to the Statutory Maximum.

Section 18 U.S.C. §3147(1) provides that if a person is convicted of an offense while under pretrial release, then in addition to the sentence for the underlying felony offense, the person should be sentenced to an additional term of up to 10 years. In United States v. Melvin Lewis, No. 10-4460 (3d Cir. October 18, 2011), the Third Circuit, in a case of first impression, held that §3147 has the effect of increasing the statutory maximum for an underlying offense by up to ten years, and that the sentences must be imposed consecutively.

Appellant Melvin Lewis was tried and convicted on two counts of a three count indictment. Specifically he was convicted of (1) being a felon in possession of ammunition, in violation of 18 U.S.C. §922(g)(1), and (2) committing an offense while on pretrial release, in violation of 18 U.S.C. § 3147(1). He was acquitted of a carjacking charge.

Mr. Lewis’s sentencing range was 140 to 175 months, and he was sentenced to 138 months, 96 for the ammunition offense and 42 months for violating §3147. He challenged the sentence arguing that the statutory maximum for §922(g)(1) was 120 months. The district court interpreted §3147 to authorize a combined sentence that exceeded the statutory maximum for the underlying offense. The Third Circuit agreed, finding that it was the “clear and unambiguous”intent of Congress to impose an extra sentence and that there was no exception to the statute that would prevent the extra time from exceeding the statutory maximum.

Nevertheless, the Third Circuit remanded the case because §3147 is a sentencing enhancement and not a separate crime. While the enhancement must be submitted to the jury, that finding is not a conviction. Therefore, it was plain error to convict Mr. Lewis for violating §3147, as if it were a separate offense.

Bribery Prosecution: Instruction that coercion may bear on intent not required, sentence remanded for failure to consider sentencing disparity

In U.S. v. Herman Friedman, No. 10-2235 (3d Cir., Sept. 28, 2011), the Third Circuit Court of Appeals affirmed Friedman’s conviction for bribery under 18 U.S.C. § 666(a)(2), but vacated and remanded for resentencing based on procedural unreasonableness.

Friedman owned a residential apartment building with 16 rented apartments, but after a routine inspection, a building inspector issued a Notice of Violation because only 15 units were legal. Although Friedman could apply for a variance, he faced a $500 per day penalty while his application was pending. So, Friedman arranged to pay a construction code official $5000 to overlook the violation. Unfortunately for Friedman, the code official, who had been caught taking bribes in an earlier investigation, was an FBI informant.

The Court rejected several defense arguments relating to the conviction; the most significant was an issue of first impression: whether the District Court abused its discretion in rejecting Friedman’s requested proposed jury instruction that coercion bears on the defendant’s state of mind.

Friedman’s proposed jury instruction would have charged the jury that coercion “may bear upon whether the defendant ever formed the intent required to commit the crime of bribery,” even when the defendant was not legally entitled to the act he was paying the official to perform. Friedman conceded that neither Supreme Court nor Third Circuit law (including the Third Circuit Model Jury Instructions) addressed this issue. But Friedman did cite for support the Second Circuit’s decision in United States v. Barash, 365 F.2d 395 (1966).

The Court found Barash inapposite because it found that coercion can bear on the intent required to commit bribery only in limited circumstances, where :“(1) the defendant is paying the official to perform an act to which he is legally entitled; and (2) the official threatens the defendant with ‘serious economic loss’ unless the bribe is paid.” Barash, 365 F.2d at 401-02. In contrast, Friedman’s proposed instruction did not limit the jury’s consideration of coercion to situations where the defendant was legally entitled to the act. The Court further noted that even if Friedman’s jury instruction were proper as a matter of law, the record provided no evidence of coercion.

In vacating and remanding Friedman’s 34-month sentence for resentencing, the Court noted , among other things, that the District Court had not considered explicitly the “unwarranted sentencing disparities” sentencing factor of 18 U.S.C. § 3553(a)(6). In his sentencing memorandum, Friedman noted the sentence of another person convicted of the exact same offense — involving the same $5000 bribe to the same code official — who received a sentence of three-years’ probation.

Summary by Ron Krauss

Money Laundering - Insufficient Knowledge of Intent to Conceal

United States v. Richardson, – F.3d –, 2011 WL 4430808 (3d Cir. Sept. 23, 2011). Asya Richardson was the fiancee of Alton Coles, the leader of a drug ring responsible for selling large amounts of cocaine and cocaine base in the Philadelphia area between 1998 and 2005. In the summer of 2005, the couple bought a home together. The government charged Richardson with money laundering, under 18 U.S.C. § 1956(a)(1)(B)(1), on the theory that she had participated in the purchase of the home knowing that drug money was being used and with intent to conceal that fact. The court found the evidence insufficient to support her conviction.

Although the government proved that Richardson lied about various aspects of the transaction in the mortgage materials, there was little evidence that she did so for any reason other than to hide the couple’s bad credit. There was also little evidence connecting her to Coles’s suspicious financial transactions related to the house (e.g., structuring deposits for the down payment). Thus, the government could not prove the element that Richardson knew the transaction was designed to conceal the nature, location, source, ownership or control of the proceeds of a specified unlawful activity. In considering Richardson’s various arguments, the Court held that “proceeds” of drug trafficking are gross receipts, not profits, weighing in on a question left open in Supreme Court’s decision in United States v. Santos, 553 U.S. 507 (2008).

Summary by Sarah Gannett

Honest Services Fraud and Bribery convictions upheld

In US v. Wayne R. Bryant and R. Michael Gallagher, Nos. 09-3243 & 09-3275 (click here) (Aug. 25, 2011), the Circuit affirmed the convictions of Bryant and Gallagher for honest services fraud and bribery in connection Gallagher, dean of a NJ medical school, giving Bryant, a state senator, a "low-show" job in exchange for Bryant funneling state money to the medical school. The Circuit rejected defense arguments that the government interfered with defense access to witnesses, that the evidence was insufficient, and that the jury instructions were defective.

Due Process/Interference with the Defense

The Court rejected a due process challenge to language that the government had placed on the face of every grand jury subpoena issued in the case, warning witnesses that “disclosure of the nature and existence of this subpoena could [and, in at least one case, “would”] obstruct and impede a criminal investigation . . . .” The defense contended that that language interfered with its access to witnesses by restricting the witnesses’ free choice whether to speak with the defense. Even though the warning language tracked the language of the obstruction of justice statute, and even though the U.S. Attorney implied a judicial imprimatur by placing the language on the face of the subpoenas, the Court characterized the language as a mere “request[] that witnesses practice discretion,” which “forthright citizens” would be inclined to heed. Thus it found no due process violation.

When defending its warning language in the district court, the U.S. Attorney’s Office for the District of New Jersey had cited an office policy of putting that language on every single grand jury subpoena. The Bryant Court criticized that blanket approach as “bad policy,” but preserved the prosecutors’ discretion to decide when to warn witnesses that they risk prosecution for obstruction if they speak with the defense.


Honest Services Fraud

The jury in Bryant was instructed solely on a bribery theory of honest services fraud, which survived the Supreme Court’s 2009 Skilling decision. Thus, the defense challenged the contours of the bribery theory, with respect to evidentiary insufficiency and instructional error.

In sum, the Court reaffirmed that honest services fraud bribery requires a quid pro quo exchange of a thing of value for an official act; that is, an intent to influence an official action (by the payor) and to be influenced (by the payee). It found the evidence plainly sufficient, and declined to adopt a more restrictive interpretation of bribery in light of Skilling. On the latter point, it rejected a defense challenge to the “stream of benefits” (or “retainer”) theory of bribery. The Court also endorsed, for the first time, an instruction that permits conviction in the presence of a “dual purpose” for the challenged payments. That is, a payor who makes a payment with the intent to influence official action is guilty even if he also intends to compensate the payee for legitimate work. The Court does not appear to have intended to use “dual purpose” to dilute the requirement of a quid pro quo, however. It referred to the secondary purpose as an “additional hope” of receiving legitimate work – in addition, that is, to the required corrupt intent to influence official action. Thus “dual purpose” will likely function in the future as another in a string of engraftments to the honest services fraud instruction that tell juries what is not a defense, rather than what the government must prove.
Section 666 Bribery

The Bryant Court declined to reach the most significant open issue in this circuit with respect to Section 666 bribery: does it require a quid pro quo exchange? Because the Court found that the jury instructions did require an exchange, it did not have to decide whether omitting an exchange was error.

The defense had contended that the jury instructions improperly substituted the mere temporal overlap of payment and official action for the required exchange, by using the phrase “while intending to influence [or to be influenced],” “while” being a temporal concept rather than a causal one. The Court held that the inclusion of the word “while” did not dilute the central concept of exchange that the intent language embodies.

Mail Fraud in Connection with Pension

The Court also addressed several arguments related to “traditional” mail fraud, in connection with counts alleging that Bryant had defrauded the New Jersey Board of Pensions and Benefits. Here the Court left open another significant issue: whether to join other circuits in rejecting the doctrine of mail fraud convergence. The doctrine requires proof that the defendant made a false statement to the actual victim. Finding that Bryant had in fact made a false statement directly the victim, the Court declined to decide whether convergence is required.

A practice note on this point: the government typically argues that the circuit already rejected mail fraud convergence in United States v. Olatunji, 872 F.2d 1161 (3d Cir. 1989), even though (as the defense contended in Bryant) any such ruling in Olatunji would have been dicta. Bryant makes clear that the circuit views the issue as open.

47 year prison terms affirmed for brothers convicted of Hobbs Act robbery of local drug dealer

Brothers Barron and Barry Walker were convicted after trial of various offenses including drug trafficking, firearm and robbery charges. Each was sentenced to a prison term of 47 1/2 years. On appeal, the brothers challenged their convictions and sentences on multiple grounds, including improper joinder, sufficiency of the evidence, improper expert testimony, and an alleged Brady violation. The Third Circuit, in United States v. Walker, 10-3090 (3d Cir. Sept. 13, 2011), quickly disposed of the severance claims, holding that joinder of all counts against both brothers was proper, despite the inclusion of two escape-related charges solely against Barry Walker, where the escape charges arose directly from the earlier drug, conspiracy and gun charges against both brothers. Nor, according to the Third Circuit, did the district court abuse its discretion in declining to grant Barron Walker's motion to sever his trial from his brother's trial where the issues were uncomplicated, the trial lasted only four days, included only two defendants and encompassed only three distinct episodes of criminal conduct.

With regard to the sufficiency of the evidence on the 18 U.S.C. § 924(c) charge (use of a firearm in furtherance of drug distribution), the Court found that the testimony of the confidential informant and a cooperating co-defendant, while not overwhelming, was sufficient to sustain the convictions. The witnesses testified that they observed Barron and Barry Walker arrive together in the same vehicle, that Barron had cocaine in his possession, and that Barron and Barry jointly made a cocaine sale while Barry wore a gun on his hip.

Next, the Court addressed the brothers' challenge to the government's expert on cocaine trafficking. In order to support the interstate commerce element of the Hobbs Act robbery charge, the government's expert, a 30 year law enforcement officer and narcotics investigator, testified that cocaine is manufactured outside of Pennsylvania and transported into the State. The Walkers' argued that the expert's testimony was unreliable because they could have possessed synthetic cocaine and the expert was unable to distinguish between synthetic and plant-based cocaine. The Third Circuit rejected this argument and agreed with the district court's conclusion that the expert's method for reaching his conclusions was reliable. It found that the expert's opinions were based on his personal experiences interacting with drug traffickers and law enforcement personnel over 30 years. Accordingly, the Court concluded that the expert's testimony was properly admitted.

With regard to the sufficiency of the evidence on the Hobbs Act robbery charge, the Third Circuit held "that by presenting evidence that (1) the Walkers attempted to rob a cocaine dealer of a de minimis amount of drugs and cash, and (2) the drug dealer's cocaine originated outside of Pennsylvania, the government presented sufficient evidence" to satisfy the interstate commerce element of the Hobbs Act. The Court acknowledged that the use of the Hobbs Act to prosecute "what could be considered a fairly garden-variety robbery gives us some pause," especially in light of the extremely harsh sentences that resulted. Nevertheless, the Court "trust[s] and expect[s]" that federal prosecutors will exercise their broad prosecutorial discretion "to make the most effective use of federal resources, to avoid supplanting the state criminal systems that quite ably address classic state-law crimes, and to seek just and appropriate criminal sentences in the course of their representation of the United States."

Finally, the Third Circuit addressed the defendants' claim that the government withheld exculpatory evidence material to their defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court found that the government' s failure to disclose information regarding an incident where their confidential informant was found to be in possession of 0.18 grams of crack cocaine was not material to the instant prosecution where the CI was not the only witness against the defendants and had already been thoroughly impeached by the defense team.

For the foregoing reasons, the Third Circuit affirmed the convictions and sentences of both Barron and Barry Walker.

General Criminal Venue Provision Applies When Part of Offense Committed in US & Illicit Sexual Conduct Outside the US Statute Constitutional

In United States v. Pendleton, No. 10-1818, September 7, 2011, the Court of Appeals considered: (1) whether the general criminal venue provision of 18 U.S.C. § 3238 applies when a defendant commits part of his offense inside the United States; and (2) whether 18 U.S.C. § 2423(c) and (f)(1) of the PROTECT Act, which criminalize noncommercial illicit sexual conduct outside the United States, are a valid exercise of Congress’s power under the Foreign Commerce Clause of the United States Constitution (Article I, Section 8, Clause 3).

In 2005, Thomas Pendleton boarded a plane in New York City bound for Hamburg, Germany. Six months after his arrival there, he sexually assaulted a 15-year-old boy. German authorities arrested him, and a jury in Hamburg found him guilty of "engaging in sexual acts with a person incapable of resistance." After serving nineteen months in a German prison, Pendleton returned to the United States, where he was arrested and indicted in the District of Delaware on one count of engaging in noncommercial illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c) and (f)(1).

Although Pendleton’s offense began when he initiated foreign travel by boarding a plane bound for Germany in the Eastern District of New York, he "committed" the offense when he engaged in a illicit sex act in Germany. Because the criminal conduct was "essentially" foreign, the district court did not err in applying the general criminal venue provision, and venue was proper in Delaware.

As for the constitutionality of 18 U.S.C. § 2423(c), because the jurisdictional element in this section has an "express connection" to the channels of foreign commerce (the first prong of the Lopez three part framework to determine whether a statue has a constitutionally tenable nexus with foreign commerce), it is a valid exercise of Congress’s power under the Foreign Commerce Clause.

Use immunity for defense witness

In US v. Jamaal L. Mike, No. 10-1394 (Aug. 23, 2010) (click here), the 3d Circuit held that the district court properly denied a defense request for use immunity for a defense witness because the proffered testimony was not "clearly exculpatory" in view of the evidence undercutting both the proffered testimony and the defense theory of the case. (The Court also addressed two other issues unique to the Virgin Islands that are not reviewed here.)

Mike was charged with aiding and abetting the receipt of a gun acquired outside his state of residence. The government's evidence was that another person, Francis, purchased an AK-47 rifle in Florida and had it shipped to a false name in the Virgin Islands. Mike arranged with two others to retrieve it from the Post Office, having them supply the false name. They were arrested once they placed the package in the car. Francis was also arrested, and he pleaded guilty. But he told agents during plea negotiations that Mike and the others did not know what was in the package. Mike then asked the court to grant Francis use immunity, and the court denied the request. Mike was convicted after a trial.

On appeal the 3rd Circuit upheld the conviction, ruling that Francis's testimony would not have been "clearly exculpatory." Following US v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court explained that the right to Due Process includes the right to have "clearly exculpatory" evidence presented to the jury, and this must include the right to compel the testimony of a defense witness who asserts the Fifth Amendment right to remain silent. "[T]he only way to compel this evidence is to grant [use] immunity." For this reason, courts have the inherent judicial power to grant defense witnesses use immunity. Smith imposed five conditions that must be met: "[1] immunity must be properly sought in the district court; [2] the defense witness must be available to testify; [3] the proffered testimony must be clearly exculpatory; [4] the testimony must be essential; and [5] there must be no strong governmental interests which countervail against a grant of immunity." Id. at 972.

The principal issue here concerned condition #3 - whether the evidence was "clearly exculpatory." In US v. Thomas, 357 F.3d 357 (3d Cir. 2004), the Court explained that use immunity may be denied when the exculpatory nature of the testimony is "at best speculative... because a credibility determination would [be] required in order to determine which parties are more credible." Id. at 365-66. The Court here ruled that Francis's testimony would not have been clearly exculpatory because there was "evidence in the record undercutting the testimony Francis might have given and Mike's theory of the case." A juvenile who was with Mike testified that Mike gave him the false name on a slip of paper to use to pick up the package, and also that Mike wanted him to take the rap for the charge since a conviction for him would only mean a stay in a Boy's Home. In addition there were numerous phone calls between Francis and Mike on the days the AK-47 was purchased, the day it was sent, and the day it was picked up. Concluding that the jury here was confronted with "more than just a credibility determination," the Court held that Francis's testimony was not clearly exculpatory.

Chief Judge McKee dissented, stating, "I do not believe our precedent can be interpreted to preclude use immunity for Francis merely because his credibility would have been in issue had he testified. Such a broad prohibition of use immunity would be tantamount to eliminating that tool altogether, even when a witness's testimony was required to satisfy the requirements of due process, because credibility is always an issue whenever any witness testifies.... Here, the district court's ruling deprived Mike of the only witness who could testify about Mike's knowledge of the contents of the package he received."

Practice note: This decision leaves the definition of "clearly exculpatory" very murky. Chief Judge McKee is surely right in stating that since the jury must always make a credibility determination regarding a witness, that fact cannot preclude use immunity. Likewise, the fact that the government has other evidence contradicting the defense theory of the case also cannot be a basis for precluding use immunity. If it were, then use immunity would seem to be available only when the government's case was insufficient.

Self-representation; CCE: and 851 notice

In US v. Prince Isaac, No. 08-4755 (Aug. 23, 2011) (click here) the 3rd Circuit held:

(1) Defendant who was representing himself was not denied his 6th Amendment right of self-representation by judge's failure to include him in two side-bar conferences (at which stand-by counsel did participate) since defendant never objected and seemed to acquiesce in stand-by counsel's participation;

(2) Instruction on CCE was error, as conceded by the government, because several of the counts it listed as counts that could qualify as the predicate drug distribution felony did not qualify; but error, to which there was no objection, did not rise to plain error because jury found defendant guilty on all the drug distribution counts, thus easily satisfying this element;

(3) The requirement of written notice of a prior conviction under 21 USC 851 (to enhance the mandatory sentence) is jurisdictional, and the lack of actual notice prior to trial in this case constituted plain error.  "[T]he requirements set out in 851 are mandatory and a district court may not impose an enhanced sentence unless the defendant has been notified of the 'strikes' in compliance with these provisions."

Fumo Sentencing Errors

In US v. Fumo and Arnao, Nos. 09-3388 & 09-3389 (Aug. 23, 2011) (click on link to see decision), the Third Circuit upheld Fumo's conviction, but reversed the sentences for both Fumo and Arnao, finding a number of sentencing errors.  The holdings of broadest significance were that the district court judge failed to follow the 3-step sentencing process, in particular the 2nd step, in which he was required to identify the new Guidelines range after granting a departure, and that he failed to specify whether he was granting a departure or a variance.

Background:
Fumo and Arnao were charged with multiple counts of fraud, tax evasion and obstruction of justice, arising from "one of the larges political scandals in recent state history."  Fumo was a powerful PA state senator, and Arnao was a Senate employee.  Fumo required Senate employees to attend to his personal needs and political interests, including housekeeping and political fundraising.  He also arranged state contracts for friends and supporters.  In order to conceal his personal use of public funds, he provided false job descriptions and failed to disclose the nature of their work.  He also funneled state money to a non-profit he founded, Citizens Alliance, for which Arnao became the director.  Fumo and Arnao used Citizen Alliance funds for their personal benefit and for political purposes, in violation of its non-profit status.  Fumo also used his position on the board of Independence Seaport Museum to take pleasure cruises on its yachts and to obtain other personal benefits.  When reporters with the Philadelphia Inquirer began investigating, Fumo had his emails deleted, and later "wiped" his computers to prevent forensic analysis. Following a lengthy trial, Judge Buckwalter sentence Fumo to 55 months and Arnao to one year in prison.  Both sentences were substantially below the Guidelines ranges.

Trial issues (Fumo's cross-appeal):
1) Evidence the government presented regarding the state Ethics Act was relevant and properly admitted in light of Fumo's defense that there were no rules or laws that barred use of Senate resources for personal benefit.  The Ethics Act was relevant to show that Fumo was acting to deceive the Senate and that he had fraudulent intent. The judge made clear to the jury that Fumo was not on trial for violating the Ethics Act.
2) Juror's comments on Facebook and Twitter during deliberations did not require reversal because they did not prejudice Fumo, and the postings were vague and "virtually meaningless."  Judge Buckwalter, moreover, provided excellent intructions to the jury, which the Circuit "enthusiastically endorse[d]", focusing on the importance of not consulting websites or blogs or posting case information on social media. 
3) Defense counsel's allegation that another juror learned during trial about Fumo's past overturned conviction was based on a double-hearsay affidavit and did not establish "substantial prejudice."  Opinion sets out 6-factor test for substantial prejudice.

Sentencing Issues (Government's appeal):
1)  Judge miscalculated the amount of loss.  (a) The government made out a prima facie case of $1 million loss due to Fumo arranging for overpayment of Senate employees, and Fumo did not show this estimate was inaccurate.  (b) Judge abused his discretion in not ruling on whether loss should include $150,000 contract awarded to Arnao's husband for no services.  (c)  Judge should have included in loss amount the lost rental value and unnecessary improvements made on a property Fumo induced Citizens Alliance to purchase and furnish for his use.
2) Judge should have applied 2-level enhancement for acting on behalf of a charitable organization USSG 2B1.1(b)(8)(A), based on Fumo's misrepresentation that he was acting on behalf of Citizens Alliance, since Fumo acquired funds from PECO for Citzens Alliance, intending to divert them to his personal use.
3) Judge  should have applied enhancement for use of sophisticated means, USSG 2B1.1(b)(9)(C), since Fumo's use of sham entities to conceal flow of funds to Fumo qualified as sophisticated means.
4)  Judge erred by not calculating the final Guidelines range, in Step 2 of the sentencing process, after granting what the judge initially said was a departure for Fumo's good works.  (The 3-Step sentencing process is: (1) calculate the Guidelines range: (2) address any departure arguments and specify effect on Guidelines range of any departures granted; and (3) impose sentence after consideration of 3553(a) factors and consideration of any arguments for variances.)
5)  Judge erred by failing to make clear whether he had granted a departure or a variance, since he called it both at various times.
6)  Judge correctly included pre-judgement interest in restitution, since this is permitted under the VWPA and is compensatory in nature.
7)  Judge gave a sufficiently thorough explanation for the variance below the Guidelines in Arnao's case to show that he had fully considered the government's arguments and the statutory factors.

The Fair Sentencing Act Applies to All Defendants Sentenced on or After August 3, 2010, Regardless of When the Criminal Conduct Occurred

In United States v. Dixon, No. 10-4300, the Third Circuit held that the Fair Sentencing Act of 2010, Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010) (“FSA”), signed into law on August 3, 2010, applies to all defendants sentenced after that date, regardless of when the criminal conduct occurred. The FSA reduced the crack/powder ratio to approximately 18:1, thus triggering a mandatory minimum sentence of 5 years for defendants convicted of possessing 28 grams of cocaine and 10years for possessing more than 280 grams. The Anti-Drug Abuse Act of 1986 (“1986 Act”) previously mandated 5 and 10 year mandatory minimum sentences for possession of more than 5 and 50 grams of crack, respectively. In passing the FSA, Congress sought to ameliorate the disparities between crack and powder cocaine offenders. Dixon was one such defendant whose criminal conduct predated the FSA, but whom was sentenced after its passage.

Section 8 of the FSA gave the United States Sentencing Commission emergency authority to promulgate new drug guidelines compliant with the Act. The Commission responded by promulgating new, FSA-compliant guidelines implementing the 18:1 ratio, which took effect on November 1, 2010. Section 10 of the Act also directed the Commission to study and submit a report to Congress outlining the impact of the FSA on federal sentencing law. Later, on June 30, 2011, the Commission decided to apply the new guidelines retroactively to defendants sentenced before the FSA was passed. But, as the Third Circuit explained in a footnote, this has no bearing on the applicability of statutory mandatory minimum sentences. It should also be noted that after oral argument, the government changed its position on the issue and submitted a Rule 28(j) letter indicating that it now supports application of the FSA to defendants in Dixon’s position.

The main issue was whether the General Saving Statute, 1 U.S.C. § 109, precludes application of the FSA to defendants sentenced after its passage. Under the Saving Statute, the mandatory minimum sentences in the 1986 Act remain in force unless the repealing Act expressly provides otherwise. The FSA does not mention retroactivity in its text. But the Supreme Court has explained that the Saving Statute “cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.” Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908) (emphasis in Dixon). And in Dixon, the Third Circuit held that the necessary or fair implication of the FSA’s text is that Congress meant for it to apply to defendants sentenced after its passage, for three reasons.

First, Section 8's emergency directive to the Commission to “make such conforming amendments” to the guidelines that would “achieve consistency with other guideline provisions and applicable law” evinces Congress’s intent for the new mandatory minimum sentences to apply to defendants sentenced after the FSA’s passage. The “applicable law” is the FSA. Further, the Sentencing Reform Act of 1984 directs courts to sentence defendants under the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). So Congress knew the amended guidelines would be in effect when defendants in Dixon’s position were sentenced. Section 8's goal of achieving consistency between the guidelines and the statute shows its intent for the new mandatory minimums to apply. The Court reasoned that it would be nonsensical to apply emergency guidelines, while at the same time imposing mandatory minimums that diminish the impact of those new guidelines. Indeed, the old mandatory minimums would still control in many cases. Congress’s urgency in directing the Commission to promulgate emergency guidelines also demonstrates its intent for the new mandatory minimums to apply going forward. Finally, the Court reasoned, “[r]efusing to apply the FSA to defendants like Dixon would lead to a troubling result in which the Act would have little real effect for years, until the statute of limitations runs on pre-August 3, 2010 conduct.”

Second, Congress’s directive to the Commission in Section 10 of the FSA to study and report on the effects of the FSA further evinces its intent. “If the FSA’s provisions only apply to post-August 3, 2010 conduct, defendants sentenced in the coming years will be subject to the mandatory minimums in the 1986 Act. Consequently, during the time period in which the Sentencing Commission is supposed to produce a report on the effects of the FSA, the Act often will be inapplicable.” Such a report would be “incomplete” and “incomprehensible,” such that Congress must have meant for the new mandatory minimums to apply to defendants sentenced after the FSA’s passage.

Finally, the Third Circuit found the FSA’s title and stated purpose compelling. The Act was passed to restore fairness to federal sentencing. Congress simply could not have meant for district courts to continue imposing sentences that are unfair over the next five years until the statute of limitations runs on all crack offenses occurring before August 3, 2010. Accordingly, the FSA’s “plain import” directly conflicts with an earlier statute - the Saving Statute’s preservation of the old mandatory minimum sentences from the 1986 Act. As such, the FSA controls and all defendants sentenced after the FSA’s passage are subject to its reduced mandatory minimum sentences, regardless of when their criminal conduct was committed.

Conviction Vacated for Erroneous Instruction on Intent

In United States v. Waller, No. 10-1321 (Aug. 16, 2011), the Court holds that it was reversible Doyle error for a district court to instruct the jury that it could consider, among other things, "any statements made or omitted by the defendant” in deciding whether he had the intent to distribute a controlled substance.

Mr. Waller was found in possession of 52 stamp bags of heroin marked “Shoot, Shoot Them,” bundled into four groups of ten and one group of twelve. At trial, there was no dispute as to possession, but only as to whether the heroin was intended for personal use or distribution. There was circumstantial evidence from which the parties urged opposite inferences: for example, the defendant's possession of a gun but no cash. There was no direct evidence bearing on intent. The Court holds that the instruction permitting consideration of statements “omitted by the defendant” improperly invited the jury to infer intent from the defendant’s post-arrest, post-Miranda warnings silence, in violation of his right to due process and the rule announced in Doyle v. Ohio, 426 U.S. 610 (1976).

Under the circumstances, the government could not carry its “decidedly heavy burden” to show that the constitutional error was harmless. “It is rather easy to see how the erroneous instruction might, in fact, have contributed to the jury’s verdict: in the face of equivocal evidence of Waller’s intent, the jurors were invited by the District Court to consider the statements that he failed to make.”

The opinion includes a discussion distinguishing the “statements made or omitted” language from the Third Circuit’s Pattern Instruction. The Pattern Instruction directs the jury that it may consider “what the defendant said, what the defendant did and failed to do, how the defendant acted, and all other facts and circumstances….” The Court reads this model charge to permit “the jury to take into account only those statements actually made by the defendant, as well as the defendant’s failures to act,” but “does not invite the jury to consider statements omitted by the defendant, or otherwise comment on the defendant’s failure to speak.” (The emphases are the Court’s.)

Officer's Reliance on Warrant Insufficient to Support Good Faith Exception to Exclusionary Rule

In People of the Virgin Islands v. Tydel John, No. 09-4185 (Aug. 15, 2011), the Court holds 2-1 that the good faith exception to the exclusionary rule does not apply — and that evidence must therefore be suppressed — when an officer obtains and executes a warrant for child pornography by means of an affidavit representing that people who commit contact sex offenses against children customarily keep evidence of such crimes, including “photographs,” in their homes.

The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”

The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”

Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.

In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.

Evidence Insufficient to Sustain Conviction for Conspiracy to Transport Firearms

In United States v. Tyson, No. 09-3487 (3d Cir, Aug. 3, 2011) , the defendant was found guilty by jury of multiple firearms-related offenses, under both federal and Virgin Islands law. Specifically, the federal counts charged conspiracy to transport firearms from Tennessee to the Virgin Islands, and related gun trafficking offenses. However, the District Court granted the defendant's motion for judgement of acquittal as to the federal counts.

The Third Circuit concluded that, while the evidence was sufficient to support the defendant’s conviction for transporting and dealing firearms without a license, the evidence was insufficient to sustain his conviction for conspiracy to transport firearms. Explicitly rejecting the “rule of consistency” in multi-defendant conspiracy trials, the court concluded instead that the evidence simply failed to prove an illegal agreement existed between the defendant and the only co-conspirator identified by the government. The court reasoned that the government’s evidence of “unusual and suspicious activity” showed only that the defendant and the alleged co-conspirator engaged in “parallel conduct,” not the requisite concerted action to further a common goal.

The Third Circuit also upheld the defendant’s conviction for transferring a firearm with intent to commit a crime. The court noted that mens rea requirement of 18 U.S.C. § 924(b) may be satisfied by showing that either the defendant himself intended to commit a crime with the firearm, or he knew or had reasonable cause to believe a crime would be committed with the firearm. Citing United States v. McBane, 433 F3d. 344, 349 n.9 (3d Cir. 2005), the court interpreted the phrase “reasonable cause to believe” to require proof that, under the factual circumstances of the case, either a reasonable person would have believed or it would have been reasonable for the defendant himself to believe. The Third Circuit concluded that the defendant’s overall sale process sufficiently proved that he had reasonable cause to believe that a crime would be committed with the firearms he transferred from Tennessee to the Virgin Islands.

No Reasonable Expectation of Privacy in Common Area of Multi-Unit Dwelling

In United States v. Correa, No. 10-2199 (3d Cir., Aug. 2, 2011) , law enforcement officials executed arrest warrants for two associates an escaped inmate at a multi-unit dwelling. When the officers arrived at the building, the exterior front door was locked. As a result, one of the officers climbed through a partially opened window and unlocked the door for his colleagues. Once inside, the officers encountered the two individuals they initially sought as well as the defendant in the common stairwell leading to the basement. During the search incident to his arrest, the defendant alerted his arresting officer that he possessed a firearm. The defendant challenged his arrest in the common area of the multi-unit dwelling as the fruit of an unlawful entrance and search, and he sought the suppression of the firearm and his subsequent statement. The Third Circuit disagreed, extending its ruling in United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992), to rule that a resident of a multi-unit dwelling has no objectively reasonable expectation of privacy in the common areas of the dwelling, regardless of whether the exterior door is regularly locked or unlocked. The court reasoned that no objectively reasonable expectation of privacy can exist in the common area of multi-unit dwelling where all of the residents are permitted to access, as well as their guests. The court also determined that a locked exterior door does not serve to protect the privacy interests of the residents, but rather serves to provide them with security. The court ultimately ruled that, as the defendant had no objectively reasonable expectation of privacy in the common area of the multi-unit dwelling, he lacked standing to challenge the law enforcement officials' entrance and search. Therefore, no Fourth Amendment violation occurred.

Language Barrier May Qualify as an Extraordinary Circumstance Warranting Equitable Tolling of AEDPA’s One Year Statute of Limitations.

In Pabon v. Superintendent S.C.I. Mahanoy, No. 08-1536, Petitioner Angel Pabon challenged the denial of his habeas petition, as out of time. Following the denial of his motions for post conviction relief at the state level, Pabon filed a pro se habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §2254. The habeas petition was based on a violation of the Confrontation Clause. Specifically, the state trial court admitted into evidence the confession of one of the codefendants, who did not testify at trial. The District Court dismissed Pabon’s petition because it was not timely under AEDPA’s one year statute of limitations, as set forth in 28 U.S.C. §2244. Conceding that his petition was out of time, Pabon argued that his petition should still be considered under the doctrine of equitable tolling, an argument the District Court rejected. The Third Circuit granted a certificate of appealablity (COA) to determine the question of timeliness and equitable tolling.

In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.

The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.