Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement

In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.

McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.

In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.

A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.

The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”

A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”

Third Circuit Unpersuaded That a Need to Pay Restitution to Microsoft Justifies a Variance From the Sentencing Guidelines

In United States v. Kononchuk, No. 06-2484, (3d Cir. May 8, 2007), the Third Circuit vacated the defendant’s sentence and remanded for resentencing, finding that the district court’s sentencing variance below the Guidelines was unsupported by a “meaningful consideration” of the §3553(a) factors and failed to address the government’s specific, meritorious concerns and objections raised during sentencing.

For three years Dmitri Kononchuk, a permanent resident alien living in the U.S., sold counterfeit versions of software for which Microsoft held the copyright. Kononchuk retained the services of Maxim Dolgosheev, a minor at the outset, to help him sell the software over the internet.

Dolgosheev pled guilty to four counts of conspiracy, trademark counterfeiting and copyright infringement. Because of Dolgosheev’s cooperation with the government, his agreement to testify against Kononchuk, his minority status when the criminal activity began, and his academic success, the government advocated for a sentence of probation and restitution.

Kononchuk was later indicted under the same four counts and eventually entered a plea to the conspiracy, and acknowledged responsibility for the remaining three counts. The government advocated for incarceration during sentencing, emphasizing the sophistication and deliberateness of Kononchuk’s scheme, the dissimilarity between he and Dolgosheev, and the risk that he would be deported before paying complete restitution. However, the district court imposed the same probation sentence as it had upon Dologsheev, with the additional penalty of twelve months home detention. The government appealed Kononchuk’s sentence as unreasonably low.

The Third Circuit stated that “when the district court imposes a sentence that varies significantly from the advisory Guidelines range and a party has made objections with legal merit that the variance is unjustified by the record, the district court has an obligation to explain why the variance is justified.” The Third Circuit found that “[b]eyond its entirely rote recitation of the §3553(a) factors,” the district court’s justification of the sentencing variance by the need for Kononchuk to maintain the financial capacity to pay restitution to Microsoft was “insufficiently responsive to the government’s objections.” The Third Circuit further stated in regards to the district court’s error that “the court essentially conceded that it was subordinating the goal of just punishment (§3553(a)(2)(A)) to the goal of keeping Kononchuk employable, but it did not explain how such a subordination was justified in light of Kononchuk’s obvious deliberateness as an offender and his decision to ensnare a minor in the offense.”

Sentence Reversed for Ex Post Facto Violation Citing Pre-Booker Precedent

In United States v. Shaheed Wood, No. 06-1372 (3d Cir. May 17, 2007), the Court of Appeals, using the plain error standard and citing only pre-Booker precedent, reversed a 6-level sentencing enhancement for assault on a police officer pursuant to U.S.S.G. § 3A1.2(c) on ex post fact grounds. The official victim enhancement was amended effective November 1, 2004. Wood engaged in the conduct charged in the indictment on January 10, 2004, approximately 10 months before the amendment became effective. Prior to the amendment Wood would have received a 3-level rather than a 6-level enhancement.

The Court also deemed improper that portion of the prosecutor’s closing argument where he argued that if the Government, police officers, citizens or judges make mistakes, the court of appeals will correct them. Such an argument may lead the jury to believe that if they made a mistake in wrongly convicting the Defendant, the court of appeals can correct that mistake, thereby minimizing the gravity of the jury’s responsibility. Interestingly enough, the Court ruled that a mistrial was not required in this case, where the improper remarks were harmless considering their scope, their relation to the context of the trial, the ameliorative effect of any curative instructions and the strength of the evidence supporting the conviction. Nonetheless, the Court cautioned that "reference in an argument to the review function of the courts of appeals may be dangerous territory into which a prosecutor should venture with care."

Section 2254 - Constitutional Claims Not Exhausted by Direct Appeal in State Court

In Ellison v. Rogers, No. 04-2314, the Third Circuit held that a §2254 petitioner’s allegations of ineffective assistance should have been raised in state post-conviction proceedings rather than on direct appeal, where the trial record was not sufficient to establish petitioner’s allegations, and therefore his federal petition was properly dismissed for failure to exhaust state remedies. The petition was also properly dismissed, rather than stayed, by the district court.

Ellison, convicted of sexual assault and child endangerment in New Jersey state court, pursued a direct appeal with counsel but also alleged ineffective assistance in supplemental pro se briefs. The New Jersey appellate court denied the ineffective assistance and due process claims without prejudice to seek post-conviction relief. Ellison did not file for post-conviction relief in state court but filed a §2254 petition in federal district court. The district court denied relief and dismissed the petition for failure to exhaust at the state level. Ellison appealed.

The Third Circuit held that because the trial record did not provide adequate proof of Ellison’s allegations and required an evidentiary hearing, the matter was not proper for direct appeal and should have been exhausted through state post-conviction proceedings. The Court also held that the district court did not abuse its discretion in dismissing the petition rather than staying and holding the petition in abeyance. Following the Supreme Court’s decision in Rhines v. Weber, a stay and abeyance is only proper where the district court finds good cause. Although Ellison’s petition was dismissed prior to Rhines and the district court did not determine whether there was good cause for failure to exhaust, Ellison was explicitly told by the state appellate court that he could pursue his claims in an application for state post-conviction relief.

Court Vacates Shedrick Opinion; Grants Panel Rehearing Sua Sponte

In a April 26, 2007, Order, the Third Circuit vacated its February 28, 2007, precedential opinion in United States v. Shedrick, 478 F.3d 519 (3d Cir. 2007).

In that published opinion (described in detail here), the Court found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.

Third Circuit Retains Jurisdiction Even Where Defendant Signs Waiver of Right to Appeal

In United States v. Gwinnett, Case No. 06-1766 (3d Cir. April 26, 2007), the Third Circuit held that it "retains subject matter jurisdiction over the appeal by a defendant who had signed an appellate waiver." It emphasized that it "will not exercise that jurisdiction to review the merits" of an appeal where the defendant "knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice," because waivers of right to appeal are valid and enforceable. The Court then found that Ms. Gwinnett’s waiver of her appellate rights was knowing and voluntary. It consequently declined to exercise its jurisdiction and affirmed the district court's decision.

This case resolves the confusion created by the Court’s decision in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). In Khattak, the Court stated, "we have no jurisdiction to consider the merits of [Khattak’s] appeal . . .." The Third Circuit noted that this was confusing because of its inconsistency with the Court's behavior: "[W]e did not dismiss the appeal [in Khattak], as we do when we conclude we have no jurisdiction. Instead, we affirmed the judgment of the district court."

Feigned Mental Illness is Proper Basis for Sentencing Enhancement for Obstruction of Justice

In United States v. Batista, Case No. 05-2949 (3d Cir. April 25, 2007), the district court applied the two-level enhancement of U.S.S.G. § 3C1.1 to the defendant’s offense level for feigning mental illness in an attempt to avoid trial. The defendant had initially negotiated with the government concerning a guilty plea. That negotiation fell through, and he moved for a evaluation of his competency to stand trial. The defendant underwent five separate competency evaluations. The evaluators decided that he was malingering, and the district court found him competent to stand trial. He subsequently pleaded guilty. At sentencing, the government moved for, and the district court granted, the sentencing enhancement for obstruction of justice.

The Third Circuit affirmed. It endorsed the Fifth Circuit’s holding in United States v. Greer, 158 F.3d 228, 237 (5th Cir. 1998), that "[w]hile a criminal defendant possesses a constitutional right to a competency hearing if a bona fide doubt exists as to his competency, he surely does not have the right to create a doubt as to his competency or to increase the chances that he will be found incompetent by feigning mental illness." However, the Third Circuit emphasized that the enhancement "would be appropriate only in cases, like that presented here, where the defendant feigns mental illness." It should not apply "as a matter of course when a defendant requested a competency hearing and was later found competent to stand trial."

3C Rules On Document Sealing And Attorney Speech Rule

In US v. Wecht (decided April 12, 2007), the Third Circuit addressed three applications arising during the prosecution of the Allegheny County coroner (Wecht). The trial on the 84-count indictment, alleging that Wecht had used his public office for private financial gain, was stayed pending the Circuit’s resolution of the applications, which were:
1. A challenge by Wecht and several intervening media outlets to the constitutionality of Local Rule 83.1 of the US District Court for the Western District of Pennsylvania ("LR 83.1"), which limits attorney speech about pending cases;
2. The government’s appeal of the DC’s decision to grant the media outlets’ motion to unseal certain personnel records about FBI Agent Orsini ("the Orsini records"), who, according to Wecht, had led the investigation and who had signed three search warrants in the case; and
3. Wecht’s petition to disqualify the trial judge.
The most interesting part of the opinion involves the sealing and unsealing of the Orsini records. Briefly, the government sought to prevent or at least delay Wecht’s access to the Orsini records, first by seeking and obtaining permission to file a motion under seal, then by seeking an ex parte ruling as to whether it had to disclose the Orsini records to the defense, and then by obtaining a protective order prohibiting Wecht from reproducing the records or disclosing their contents in open court. This protective order was issued over Wecht’s objection and before the parties had briefed the propriety of the sealing. At a subsequent evidentiary hearing on Wecht’s motion to suppress, which challenged Orsini’s credibility, Wecht did not use the Orsini records to cross-examine Orsini (although Wecht had, by then, been permitted access to the records), explaining at oral argument before the 3C that he believed the protective order and another ruling by the DC precluded him from doing so.
After the suppression hearing, the DC denied Wecht’s motion to unseal the records but granted the intervening media outlets’ motion to unseal them. The DC stayed the unsealing order pending the 3C’s resolution of the question. The 3C ultimately concluded that the public has a common law right to the Orsini records. It cited several reasons for its conclusion: (1) the documents were filed with the government’s motion for in camera review, which established them as judicial records; (2) the district court evaluated their relevance and ruled that they must be disclosed as potential impeachment evidence; (3) the process by which the government investigates and prosecutes its citizens is an important matter of public concern; (4) there was little question that the particular documents at issue here are of significant interest to the public; and (5) the records were relevant to Wecht’s suppression motion. The 3C also ruled that the DC’s decision to unseal the records was appropriate pursuant to the trial court’s general discretionary powers
Judge Bright, in a concurring opinion on the sealing issue, concluded that the DC sealed the government’s ex parte motion without making the necessary findings justifying its decision. Thus, rather than holding the government to its burden, the DC sealed the documents and then required Wecht and the media to establish why they should be unsealed. The procedures followed by the DC, according to Judge Bright, were improper in and of themselves and had the effect of precluding Wecht from making use of the records to test the credibility of Orsini at the suppression hearing.
The majority and Judge Bright also differed with respect to the merits of Wecht’s recusal application. The majority reviewed Wecht’s complaints regarding the trial court’s rulings and its attitude toward the defense and concluded that Wecht had failed to satisfy the test set forth in Liteky v. United States, 510 U.S. 540, 555-56 (1994) (that is, by showing "the ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair judgment possible’"). Judge Bright, on the other hand, concluded that this was the "rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government." This ex parte advocacy, in Judge Bright’s view, amounted to "an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality." The dissent summarized: "In this case, the Government’s ex parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises serious concerns about the propriety of the Government’s strategy. All parties in this case, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly."
With respect to the challenge to LR 83.1, the 3C held, without reaching the constitutional questions, that speech should be limited only to the extent that it is "substantially likely to materially prejudice ongoing criminal proceedings," rather than limiting comments that have a "reasonable likelihood of prejudice,"which was the standard incorporated in LR 83.1. It noted that its holding applies to the local rules of all the district courts in the Circuit.

Crawford does not prevent introduction of hearsay evidence at sentencing

In United States v. Robinson, Appeal No. 05-5330 (3d Cir. 3/5/07, published 4/16/07), the Third Circuit fell in line with every other Circuit to consider the issue when it ruled that the United States Supreme Court's recent confrontation clause decision in Crawford v. Washington, 541 U.S. 36 (2004), provides no basis for reversing prior Supreme Court precedent expressly allowing the introduction of hearsay evidence in the sentencing context.

120-month bank robbery sentence held reasonable for ailing defendant

The Third Circuit has upheld as reasonable a 120-month sentence in a bank robbery case in which the defendant has suffered from AIDS since the early 1980s. The defendant in United States v. Watson, No. 05-3892 (3d Cir. Apr. 5, 2007) faced a Guidelines range of 151-188 months, and the district court varied downward on account of the defendant's health, which had deteriorated during his pre-trial detention due to improper management of his medication by prison officials.

The defendant appealed, claiming that 120 months is unreasonably excessive (regardless of the higher Guidelines range) as it amounts to an effective life sentence given his prognosis. The Third Circuit was unpersuaded, noting that "the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence," --- at least not in the court of appeals, under the deferential review accorded sentences post-Booker. The Court noted that the district court gave meaningful consideration to all of the Section 3553(a) factors in determining sentence.

The Court also distinguished its recent decision in United States v. Manzella in rejecting the defendant's claim that the 120 months of imprisonment had been chosen in order to further rehabilitative and treatment goals, in violation of 18 U.S.C. 3582(a). Unlike in Manzella, where there was ample evidence that imprisonment was ordered to further drug treatment, here, the district court merely mentioned the defendant's medical treatment needs in the context of discussing the overall appropriate sentence and the recommended designation to a BOP medical facility.

Third Circuit rejects challenge to shoeprint expert testimony, affirms application of CO provision and 460-month sentence for bank robbery

In United States v. Ford, No. 05-4998 (3d Cir. Mar. 29, 2007), the Third Circuit rejected a challenge to the admission of testimony of the government’s expert witness, where Ford argued that the expert opinion failed to meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The expert was permitted to testify that Ford’s shoes were the kind that could have made the footprints left on the bank counter at one of the robberies with which he was charged. Ford argued that the testimony should be excluded because the opinion was no more precise than that the shoe impressions at the bank and those made by the shoes he was wearing when apprehended were "similar." However, the Court ultimately reasoned that an expert opinion expressing the possibility that a crime shoe impression may have been made by shoes worn by the defendant, to the extent it meets the reliability and relevancy thresholds in Daubert, is "clearly relevant" to the question of whether defendant was present at the scene of the crime, and thus determined that the district court did not abuse its discretion in admitting this testimony.

The Third Circuit also affirmed the application of the career offender provision in U.S.S.G. § 4B1.1(a), based on two prior convictions for crimes of violence, one of which was an escape attempted while Ford was incarcerated in Virginia. Acknowledging that United States v. Lister, 305 F.3d 199 (3d Cir. 2002), held that escape is a crime of violence, Ford argued that Luster is no longer controlling due to Booker, and that the fact finding of whether his prior offenses were crimes of violence should have been submitted to a jury. Noting that although Booker did not directly address whether jury fact finding is necessary to determine whether a particular offense is a crime of violence, the Court stated that Booker nevertheless expressly excludes the fact of prior conviction from the purview of jury fact finding. Thus, where it had previously held every escape conviction to be a crime of violence, the Third Circuit concluded that no jury fact finding was required and thus the district court did not err in applying the CO provision and sentencing Ford to 460 months.

United States v. Vargas - Fast-Track Disparity Case - Denied Rehearing

The Third Circuit has denied rehearing in United States v. Vargas, where the Court rejected an appeal raising error for the district court’s refusal to consider fast-track disparity in sentencing. (panel opinion here) In a concurring opinion, Judge Ambro elaborated on the “limited scope” of the Court’s panel opinion, its two holdings and how it is consistent with United States v. Gunter. First, Vargas held that “a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable.” Although Gunter held that a court errs when it believes it has no discretion to consider an infirmity in the guidelines, it did not establish a rule that the court must consider it. Sentencing courts may, however, do so if “they are persuaded that the Guidelines do not sufficiently effect the goals of sentencing.” Second, Vargas held that a sentencing court “may not, in the fast-track context, rely on § 3553(a)(6)’s reference to ‘unwarranted sentence disparities’ to justify a sentence that varies from the advisory Guidelines range.” This does not preclude other factors - - such as ‘the history and characteristics of the defendant’ - - from serving as a basis for variance in the fast-track context. For example, an individual defendant may enter an early plea and waive various procedural rights, considerations permissible in Gunter’s third step.

Court affirms conviction for attempted support of terrorists, rejecting claims of entrapment, outrageous government conduct, and juror misconduct

In United States v. Lakhani, No. 05-4276 (3d Cir. Mar. 16, 2007), the Third Circuit affirmed the defendant’s conviction and 47-year sentence. Lakhani, a now-71-year-old trader of Indian descent, was convicted of attempting to provide material support to terrorists and other offenses following a jury trial for his role in the attempted importation of shoulder-fired surface-to-air missiles. Much of the evidence at trial consisted of Lakhani’s recorded conversations with a government informant who asked the defendant to procure missiles for his terrorist group, and who Lakhani "enthusiastically" agreed to help. Over the course of almost two years, Lakhani made various assurances to the informant that a missile would soon be available. In the end, however, the only weapon that the defendant "obtained" was a mock missile designed by cooperating Russian and American authorities.

The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"

Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).

Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."

Court clarifies earlier opinion: "We have never held that an arrest that is unlawful under state law is unreasonable per se under the 4th A."

In United States v. Laville, No. 06-1577 (3d Cir. Mar. 16, 2007), the Third Circuit—in a decision authored by Judge Barry, with a concurrence by Judge McKee and dissent by Judge Stapleton—reversed the district court’s grant of a motion to suppress post-arrest statements, explaining that the district court misinterpreted the Third Circuit’s holding in United States v. Myers, 308 F.3d 251 (3d Cir. 2002)(authored by Judge McKee, joined by Judge Barry, with a dissent by Judge Alarcon, from the Ninth Circuit). The district court found that the officer who arrested the defendant only had probable cause that the defendant had committed a misdemeanor offense (illegal entry), which, under the territorial law of the Virgin Islands, must be committed in the presence of an officer to justify a warrantless arrest. The district court read Myers as holding that local law governed the constitutionality of the defendant’s arrest; therefore, since the offense had been completed before the officer arrived at the scene, he had no authority to arrest Laville.

Judge Barry’s opinion explained that the district court’s ruling was based on a misinterpretation of Myers. "We did not hold in Myers and, indeed, have never held that an arrest that is unlawful under state and local law is unreasonable per se under the Fourth Amendment." Rather, "the validity of an arrest under state law is at most a factor that a court may consider in assessing the broader question of probable cause." The Court emphasized that reasonableness is the central inquiry under the Fourth Amendment and, under that standard, Laville’s arrest was supported by probable cause.

Judge McKee concurred with this analysis, but wrote separately to note his concern that the government is not allowed to take an interlocutory appeal merely because it disagrees with a suppression ruling. Moreover, this case could be decided entirely on the basis of the Third Circuit’s analysis of when the offense of illegal entry is completed in Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995).

In dissent, Judge Stapleton agrees with the district court that Myers requires application of the misdemeanor presence rule to determine the validity of Laville’s arrest. Even apart from Myers and the misdemeanor presence rule, however, Judge Stapleton would affirm the lower court because the information available to the arresting officer was insufficient to supply probable cause for an arrest.

Court finds information alleging prior felony properly filed and served

In United States v. Rivas, No. 05-3380, (3d Cir. Mar. 12, 2007), the Third Circuit affirmed the defendant’s conviction for conspiring to distribute crack cocaine, finding no reversible trial error. The Court also affirmed the defendant’s 240-month sentence, rejecting Rivas’s claim that the government improperly filed and served the information charging a prior felony drug conviction pursuant to 21 U.S.C. § 851.

Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.

The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."

Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.

Child Support Recovery Act does not Exceed Congressional Power Under Commerce Clause

In United States v. Kukafka, No. 05-1955 (3d Cir. Mar. 6, 2007), defendant was found guilty of two counts of failure to make child support payments in violation of 18 U.S.C. §228(a)(1) and (3). Kukafka argued that the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998, ("the Act"), exceeds the scope of Congress’s power under the Commerce Clause and violates the Tenth Amendment of the U.S. Constitution.

The Third Circuit previously held the Deadbeat Parents Punishment Act constitutional in United States v. Parker, finding that failure to pay child support is a local activity which is part of a national economic problem "substantially affecting interstate commerce," fitting within the third category of activity that Congress may regulate as identified in United States v. Lopez. Kukafka argued that Parker was overruled by United States v. Morrison, in which the Supreme Court struck down portions of the Violence Against Women Act. Morrison held that Congress could not regulate non-economic conduct "based solely on that conduct’s aggregate effect on interstate commerce." The Morrison framework for determining whether a law regulates an activity that has a substantial effect on interstate commerce looks at four factors: (1) the economic nature of the regulated activity, (2) a jurisdictional element to limit the law’s reach, (3) the existence of express congressional findings regarding the effect on interstate commerce, and (4) the link between the activity and interstate commerce. Based upon these factors, the Third Circuit held that the Act regulates an activity with a substantial effect on interstate commerce, it is economic in nature with an explicit jurisdictional element and followed extensive legislative findings about its effect on interstate commerce. The Act therefore falls within Congress’s power under the third Lopez category.

The court went on to find that the Act also falls under the second Lopez category, regulation of persons or things in interstate commerce. Child support payments are "things" in interstate commerce because they are normally transmitted through instrumentalities of interstate commerce and the "persons" targeted by the act are those who intentionally avoid payment by travelling across state lines.

Maximum 60-month Sentence on Revocation of Supervised Release Reasonable

In United States v. Bungar, No. 05-5519 (3d Cir. Mar. 5, 2007), the Third Circuit found reasonable a 60-month sentence upon revocation of supervised release for drug-related violations. Bungar was originally charged with conspiracy to possess with intent to deliver heroin, distribution and possession with intent to distribute heroin and distribution and possession with intent to distribute cocaine. Pursuant to a cooperation agreement, he entered a guilty plea to the first two charges. The mandatory guideline range at the time was 292 - 365 months. The government filed a §5K1.1 motion and the court departed to 96 months’ imprisonment and 5 years’ supervised release.

Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.

Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."

Court finds it has jurisdiction to hear § 2255 petition despite waiver of right to mount collateral attack

In United States v. Shedrick, No. 04-2329 (3d Cir. Feb. 28, 2007), the Third Circuit found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.

Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.

While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.

Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."

The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.

The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.

Guidelines enhancement for bartering drugs for gun

In US v. Charles Navarro, No. 05-4102 (3d Cir. 2/14/06) (click to link) the 3rd Circuit upheld a 4-level enhancement under USSG section 2K2.1(b)(5) for possession of a gun "in connection with another felony offense."

Navarro, who was charged with being a felon in possession of a gun, had told police he had bartered three rocks of crack cocaine for the gun. At sentencing, the defense objected to a 4-level enhancement under USSG 2K2.1(b)(5) for possession of the gun in connection with a felony -- drug trafficking -- because in the context of the bartering arrangement here, the drug delivery was not sufficiently distinct from the offense of possession of the gun. The district court applied the enhancement.

On appeal, the Circuit interpreted two prior cases, Fenton, 309 F.3d 825 (3d Cir. 2002), and Lloyd, 361 F.3d 197 (3d Cir. 2004), in an effort to "distill" a rule applicable to a bartering situation such as this one. The Circuit concluded that these cases taken together establish a two-part test: 1) "Whether the predicate offense and the firearms offense each have an element not shared by the other." (The Blockburger test.) 2) "Whether more than mere possession of the firearm (such as brandishment or other use) was an integral aspect of the predicate offense." If the answer to both is yes, the enhancement applies.

Applying this test here, the Circuit found first that drug delivery and firearms possession each have an element not shared by the other. Second, the Circuit found that since drug dispensation does not require an exchange of something of value, Navarro's possession of the firearm was not an integral aspect of the offense. The Court thus concluded that the enhancement applied; under this test, the drug dispensation was sufficiently distinct to count as "another felony offense."

Judge Bright (from the Eighth Circuit, sitting by designation) wrote a persuasive dissent. As Judge Bright points out, "In this case, firearm possession was integral to Navarro's drugs for guns exchange" since this exchange was the means through which he came into possession of the gun. The gun was not brandished or used in any other way beyond mere possession, and thus the facts do not meet the second part of the test. Thus, Judge Bright would hold that the enhancement should not have applied.

“Closely-regulated industry” exception to warrant requirement, as applied to PA Liquor Control Board, requires that Board officials conduct search

In a civil action under section 1983 alleging that a warrantless search of their tavern violated plaintiffs’ Fourth Amendment rights, defendants moved for summary judgment on the ground that the search had been conducted lawfully pursuant to the closely-regulated industry exception. That exception "requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant." The defendants argued that the search was authorized under the Pa. Liquor Control Board’s regulations. Because the record showed that the search had been conducted by local police and not by any officials of the Board, the court examined Pa. law to determine whether the search met the requirements of the exception. Reviewing the state statutes and caselaw, the court determined that the regulatory scheme in Pa. only permits warrantless inspection by specified categories of individuals connected to the Board or working under their direction. Because the plaintiffs alleged that the search was performed by local police acting without any grant of authority by the Board, the court reversed the grant of summary judgment and allowed the case to proceed. Watson v. Abington Township, http://www.ca3.uscourts.gov/opinarch/054133p.pdf, 2/16/07.