Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only

Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.

With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares that "when Congress fails to set the unit of prosecution clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Finding the statute ambiguous in its prohibition upon the possession of "any" firearm or ammunition, the Court holds that the defendant’s "possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1)."

The Court then confronts two previous decisions it acknowledges to be in "direct conflict" regarding whether dual punishments of the kind here affect a defendant’s "substantial rights," as required to support correction on plain error review. In 2008, the Court held in United States v. Miller (Blog post here) that the potential adverse collateral consequences resulting from each punishment, and the extra special assessment, make out the requisite effect. In its 2002 decision in United States v. Gricco, however, the Court had found no such effect when the district court erroneously failed to merge two convictions. Gricco’s rationale was that the "only immediate practical effects of the concurrent sentences" were "special assessments totaling $700 for each defendant."

Ordinarily, the Court’s Internal Operating Procedure 9.1 directs that the earlier Gricco decision be treated as controlling because it was decided first. But this week’s decision in Tann faults Gricco for not following, or even mentioning, two Supreme Court cases predating it. The Court therefore refuses to be bound by Gricco -- a decision authored by then Judge Alito -- and instead follows Miller, which it finds to have followed the high court’s precedents. Confronting IOP 9.1, the Court says that a "panel of our Court may decline to follow" a prior decision "without the necessity of an en banc decision whether the conflicting Supreme Court decision was rendered before or after our prior decision."

Concluding that the judgment imposing dual punishments on the same offense seriously affected the fairness and integrity of the proceedings, the court remands with instructions "to vacate the sentence on one of Tann’s convictions under 18 U.S.C. § 922(g) and to merge the two convictions under § 922(g) into one conviction."

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." This week, in United States v. Lychock, No. 06-3311, a panel flunks a sentence under that standard. The defendant, following conviction for possessing between 150 and 300 images of child pornography, had been placed on five years' probation and fined $10,000 when the Guidelines range was 30 to 37 months’ imprisonment. The Court vacates the sentence as both procedurally and substantively unreasonable.

Two leading factors in the Court’s analysis appear to have been the sentence of probation and the defendant’s apprehension in a "wider investigation into an international child pornography enterprise," which has led to the sentencing of numerous defendants in the District of New Jersey for very similar offenses. In an opinion by Judge Roth, the Court did not offer any general remarks concerning how probation figures within the rubric of sentencing purposes identified in 18 U.S.C. § 3553(a). It did, however, repeatedly describe the defendant’s sentence with phrases such as "so far below the range suggested by the Guidelines." Considering the "significant deviation," the Court held the district judge’s explanation insufficient and the sentence therefore procedurally unreasonable. With respect to substantive unreasonableness as well, the Court explained that the "extent of any variance from the Guidelines range" must be taken into account.

The significance of the international investigation’s netting of numerous New Jersey child pornography defendants relates to § 3553(a)(6)’s directive that district courts consider the need to avoid potential sentencing disparities among similarly situated individuals. The Third Circuit notes that the government "highlighted the within-Guidelines sentences several RegPay defendants had already received from other judges of the District Court." Because the sentence here was "far below the sentences given to similar offenders, consideration of this disparity deserves particular care." In this connection, the Court finds still to be instructive its 2007 child pornography precedent in United States v. Goff (Blog post here), quoting that opinion in concluding that the district court "did not give the Guidelines the consideration they are due."

Lychock also emphasizes that district judges must offer greater than usual elaboration when imposing non-Guidelines sentences on the basis of policy disagreements with the Sentencing Commission. Such disagreement "is permissible only if a District Court provides sufficiently compelling reasons to justify it." Here, the core of the district court’s policy analysis appears to have been that the "kind of psychological problem in persons who are drawn to this kind of material … is not going to be deterred by a jail term for an internet porno observer." The Circuit dismissed that analysis as a "conclusory statement of personal belief."

PA Escape (M2) is not a Crime of Violence

In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1.1. In so ruling, the Circuit recognized that its prior decision to the contrary in US v. Luster, 305 F.3d 199 (3d Cir. 2002), has been effectively overruled.

Hopkins was convicted of drug trafficking. At sentencing the district court concluded he qualified as a career offender because he had two qualifying predicate offenses under USSG 4B1.1. One of the prior convictions was for escape under Pennsylvania state law. The escape occurred when local police went to Hopkins' home to arrest him for failure to appear for a traffic violation. Hopkins ran out the back and was caught as he tried to jump over a fence.

Hopkins challenged the sentence on appeal, and the Circuit initially affirmed on the basis of its prior decision in Luster, which held that all escape crimes are crimes of violence. Hopkins filed a cert petition, however, and the Supreme Court vacated the judgment and remanded for reconsideration in light of its decision in Chambers v. US, 129 S. Ct. 687 (Jan. 13, 2009). Chambers held that the crime of failure to report to prison, which is defined as escape under Illinois law, does not count as a "violent felony" for purposes of the Armed Career Criminal Act, 18 USC 924(e).

On reconsideration, the 3rd Circuit concluded that Chambers "is in conflict with" Luster, and that the Court would have to "undertake to determine anew" whether the escape counted as a crime of violence. Examining the PA escape statute, the Court determined that as a second degree misdemeanor, escape consists of "unlawfully removing" oneself from official detention, and does not require force, threat or the use of a weapon. The Court then compared escape to the other crimes listed in USSG 4B1.1 as crimes of violence -- burglary, arson, extortion -- and concluded that it does not pose the same degree of risk of physical injury to another. Finding that escape involves conduct "materially less violent and aggressive than the enumerated offenses," the Court held that as a misdemeanor, it does not qualify as a crime of violence. The effect of this holding is to overrule Luster. The effect is also to reject Luster's "powder keg" theory, under which the potential for an offense to explode into violence was enough to qualify it as a crime of violence.

(See also the post below regarding US v. Polk, No. 08-4399 (Aug 12, 2009), in which the 3rd Cir held that possession of a weapon in prison is not a crime of violence, overruling its prior decision in US v. Kenney, 310 F.3d 135 (3d Cir. 2002).)

Practice tips:
This ruling means two things for practitioners:

1) PA escape as a misdemeanor does not count as either a "crime of violence" under USSG 4B1.1, or a "violent felony" under the Armed Career Criminal Act, 18 USC 924(e). The definitions of the two terms are almost identical, and the Supreme Court has made clear that the case law applying to the ACCA applies also to the Career Offender provision.

2) Practitioners should look back over their closed cases to identify any sentences in which the Career Offender or ACCA enhancement was applied based on a prior escape offense. In any such cases, the defendants should be contacted and advised to file petitions under 28 USC 2255 to vacate their sentences. These petitions should be filed by January 12, 2010 -- within one year of Chambers, otherwise they will likely be time-barred.

Materiality and filing of false claims with IRS

In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim." The Court went on to hold (3) that that indictment was nonetheless sufficient, in spite of its failure to use the term "material," because the factual allegations implied materiality, and (4) that the district court's failure to instruct on materiality was harmless in light of the evidence which showed beyond a reasonable doubt that the conspirators agreed to make materially false statements as part of the conspiracy.

Defendants were convicted of conspiring to defraud the US by obtaining payment of false tax refunds, in violation of Sect 286, and of multiple counts of making and presenting false and fraudulent tax returns to the IRS, in violation of Sect 287. On appeal they challenged the government's failure to allege materiality under either section.

(1) The Court held that Sect 287 does not require proof of materiality because the statute applies to the filing of a claim, "knowing such claim to be false, fictitious or fraudulent." While the word "fraudulent" implies the materiality must be proved, the use of the disjunctive "or" means that separate meaning should be given to the other terms in the list. Thus, the Court reads Sect 287 "to demand a showing that the claim was known to be either 'fraudulent,' which would require proof of materiality, or 'false' or 'fictitious,' which would not require proof of materiality. This means that materiality is not always required to establish a Sect 287 violation."

(2) The Court also held, however, that Sect 286 does require proof of materiality because it requires proof of a "conspiracy to defraud." Although this section does not require proof that the defendants actually made or presented any falsehoods, let alone material ones, the requirement that there be proof of conspiracy to "defraud" incorporates a materiality requirement. Sect 286 thus requires the government to prove an agreement to make false statements that would have a material effect on the government's decision to pay false claims.

(3) Turning to the sufficiency of the indictment, the Court held that although it did not specifically mention "materiality," the facts alleged in support of the allegation of fraud warrant an inference that the false statements the conspirators agreed to make as part of the conspiracy were material.

(4) Last, the Court held that the district court's failure to mention "materiality" in the jury instruction regarding Sect 286 was harmless error since the misrepresentations of names, addresses, and gross income on the fraudulent tax forms were unquestionably material.

The Court accordingly upheld the convictions and sentences.

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.