Circuit holds that the force required to support an abduction enhancement under § 2B3.1(b)(4)(A) is determined by an objective standard, and that a temporary taking of property may justify application of the loss enhancement under § 2B3.1(b)(7)(B).

United Statesv. Thomas Edward Smith, Appeal No. 13-4422, 2014 WL 3582897 (July 10, 2014)

(Rendell, Chagares, Jordan, J.)

Thomas Smith pulled his car off of the road, pretending to be disabled, and flagged down the manager of the local Citizens & Northern Bank, Kimberlea Whiting, who was driving home from the bank for lunch.  Smith’s motive was revenge:  He blamed the bank for initiating foreclosure proceedings on his house.  Smith drew a gun, which was stolen, and ordered Whiting to drive to the bank, saying she and another bank employee were going to pay for taking his house.  Once at the bank, Smith directed Whiting to drive to the rear parking lot.  Whiting, fearing he would shoot her there, continued past the lot. She ultimately slowed her Ford Explorer and rolled out of it and onto the street. When the Explorer came to a stop, Smith abandoned it and fled on foot.  Smith was convicted of carjacking, brandishing a firearm during a crime of violence, and possessing a stolen firearm after trial.

            The appeal challenged the district court’s application of two sentencing enhancements - - a four-level enhancement under § 2B3.1(b)(4)(A) for the victim’s abduction, and a one-level enhancement under § 2B3.1(b)(7)(B) for the victim’s loss. 

Section 2B3.1(b)(4)(A) of the Sentencing Guidelines applies “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A) (2012). The Court describes three predicates for the abduction enhancement.  First, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victims must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender's escape.

Here, Smith used force to control both Whiting and her vehicle by pointing a gun at her and directing her to drive to the bank.  He forced Whiting to accompany him to a new location. And Smith forced Whiting to return to the bank to facilitate his threatened revenge for the foreclosure on his home.

Smith’s challenge to the enhancement was based on the fact that Whiting disregarded some of his commands and ultimately escaped.  The Court declines what it calls Smith’s invitation to fashion an exception to the abduction enhancement for when a victim struggles with the offender to the point that he or she thwarts the intended criminal objective, explaining that the invitation “is based on the perverse logic that a victim's boldness lessens a criminal's culpability.”  Use of force is determined by an objective, not subjective, standard. “Thus, whether or not a victim struggles or disobeys orders, as long as a reasonable person would not have felt free to refuse the offender's commands, the predicate is satisfied.” The court makes explicit the holding that “the intended crime need not be accomplished for the abduction enhancement to apply.”  

            Smith next argues that the court wrongly applied the loss enhancement because Whiting's car was not “taken, damaged, or destroyed,” as those terms are used in § 2B3.1 of the Guidelines.  Application Note 3 in the Commentary to Section 2B3.1 defines “loss” for purposes of robbery as “the value of the property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1 cmt. n. 3.  Smith did not damage or destroy the vehicle and was only a temporary passenger.  The Court declines to limit “taken” to situations involving a permanent deprivation of property.  Following opinions from several other circuits, the Court holds that here, Smith exercised dominion and control, albeit temporarily, over the vehicle when he coerced Whiting, against her will and at gunpoint, to drive to the bank. Whiting's later escape did not erase that taking.  

The Court affirms the judgment of sentence.

Summary by Renee D. Pietropaolo

The Circuit explains that Fed.R.Evid. Rule 404(b) is “a rule of general exclusion” and reiterates the importance of a methodical approach by the proponent of prior act evidence and a carefully reasoned ruling by the trial judge.

United Statesv. Caldwell, Appeal No. 13-1918, 2014 WL 3674684 (July 24, 2014) (Smith, Vanaskie, Shwartz, J.)

The Circuit holds that in a trial for being a felon-in-possession of a firearm, 18 U.S.C. § 922(g), based on a theory of actual possession, the district court erred by admitting under Federal Rule of Evidence 404(b), evidence of the defendant’s prior convictions for unlawful weapons possession; it vacates the judgment and remands.  In a scholarly 53-page opinion, which is a must read for the defense bar, Judge Smith discusses the evolution of the prior bad acts rule from its English common law roots to the adoption of Rule of Rule 404(b). 

            The Circuit initially explained that when the Court calls Rule 404(b) a rule of inclusion, not exclusion, it “merely reiterates the drafters’ decision to not restrict the non-propensity uses of evidence.  The Rule provides prior act evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.  Fed.R.Evid.404(b)(2).  By introducing the list of permissible purposes with the words “such as” the drafters made clear the list was not exclusive, or otherwise limited to a strictly defined class. It does not suggest that prior offense evidence is presumptively admissible.  “On this point, let us be clear:  Rule 404(b) is a rule of general exclusion, and carries with it ‘no presumption of admissibility.’”  The Rule reflects the revered policy that an accused is tried for what he did, not who he is. 

The court then sets forth the 4-steps that must be taken before evidence is admissible for a non-propensity purpose. 

            First, the party seeking to admit evidence under Rule 404(b)  bears the burden of identifying a proper 404(b) purpose that is “at issue” in, or relevant to, the case.  In evaluating whether an identified purpose is “at issue,” courts should consider the “material issues and facts the government must prove to obtain a conviction.”  The Court stressed that the proponent’s “incantation of the proper uses of [prior act] evidence… does not magically transform inadmissible evidence into admissible evidence.  Rather, the proponent must identify a specific purpose that ‘is of consequence in determining the action.’ Fed.R.Evid. 401(b).” 

The “crucial” second step is for the proponent to explain “how the evidence is relevant to that purpose.  The Court reiterates that the government must explain how the evidence fits into a chain of inferences connecting the evidence to a proper purpose, no link of which is a forbidden propensity inference.  “We require this chain be articulated with careful precision because, even when a non-propensity purpose is ‘at issue’ in a case, the evidence offered may be completely irrelevant to that purpose, or relevant only in an impermissible way.” The court admonishes, “[d]espite our repeated instructions in this area, some proponents of Rule 404(b) evidence still fail to follow this course.”  The proffered evidence must be excluded if the proponent neglects or is unable to articulate this chain of inferences, and failure to exclude such evidence constitutes reversible error. 

The court emphasizes that these are distinct steps.  “The first step requires the proponent to identify a proper purpose that is pertinent to the case, whereas the second step requires the evidence tend to establish the identified purpose.” 

            Once the proponent has shown that the evidence is relevant for a proper, non-propensity purpose, the court must balance under Rule 403 whether the evidence is sufficiently probative, such that its probative value is not outweighed by the inherently prejudicial nature of the prior bad act evidence.  This balancing requires great care because few categories of evidence bring greater risk of prejudice to the accused under Rule 403. 

            Finally, if requested, the court must provide a limiting instruction.   

In Mr. Caldwell’s case, the prosecution failed to offer an acceptable, non-propensity purpose, i.e., one that is “at issue” in, or relevant to, the prosecution.  Again, in determining whether an identified purpose is at issue in a case, the Court begins by considering the material issues and facts the government must prove to obtain the conviction.  The government must proffer a logical chain of inferences consistent with its theory of the case.  Evidence is relevant if it has a tendency to make more or less probable a fact that “is of consequence in determining the act.”  Fed.R.Evid. 401(b).

The government’s theory was that Caldwell was in actual, not constructive, possession of the firearm:  Officers testified to seeing the firearm in Caldwell’s hands.  In the typical felon in possession case when the government proceeds on a theory of actual possession, knowledge is not at issue.  Absent unusual circumstances (such as when the defendant claims he did not realize the thing in his hand was a gun), the knowledge element in a felon in possession case is necessarily satisfied if the jury finds the defendant physically possessed the gun.  Nor is intent at issue in a felon in possession case because section 922(g)(1) does not require the government to prove the defendant intentionally possessed a gun.

The Circuit also rejects as improper the district court’s reasoning that a defendant puts knowledge at issue by claiming innocence.  Situations can arise during trial where a defendant could put knowledge at issue, for example, where a defendant testifies the thing in his hand was something other than a gun.  However, a defendant does not merely by denying guilt of an offense with a knowledge-based mens rea, open the door to admissibility of prior convictions of the same crime.  “Such a holding would eviscerate Rule 404(b)’s protection and completely swallow the general rule.

The Government also failed to articulate how Caldwell’s prior gun convictions are relevant to show knowledge that he possessed the gun.  It is not enough to merely recite a Rule 404(b) purpose.  The prosecution must “explain ‘exactly how the proffered evidence should work in the mind of a juror to establish the fact the government claims to be trying to prove.” The court asked, “how exactly, do Caldwell’s two prior convictions for unlawful firearm possession suggest he knowingly possessed this gun on this occasion?” It found only one answer:  If Caldwell knowingly possessed a firearm in the past, he was more likely to have knowingly possessed the firearm this time.  This is precisely the propensity-based inferential logic that Rule 404(b) forbids. 

The district court failed to conduct a meaningful balancing.  The Circuit provides some guidance on this point.  Even if the prior convictions were probative of knowledge (and they were not), the probative value would, at best, be minimal.  In a 922(g) case, knowledge is generally subsumed within a finding of physical possession.  Thus, any value added by the prior conviction would be negligible.  Further, the probative value is diminished where the defendant does not contest the fact for which supporting evidence has been offered.  “Rule 403 balancing may tilt in favor of excluding highly prejudicial evidence when it is offered to establish a fact that is completely uncontested by the defendant.”  On the other side of the scale, “it is beyond cavil” that evidence of prior firearm convictions is highly prejudicial. 

Next, the Circuit rejects the prosecution’s alternative argument that the prior convictions were admissible for impeachment purposes under Fed.R.Evid. Rule 609.  When a testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only “if the probative value of the evidence outweighs its prejudicial effect to that defendant.  This “heightened” balancing test creates a predisposition toward exclusion.  The Court considers (1) the kind of crime involved, (2) when the conviction occurred, (3) the importance of the defendant’s testimony to the case, and (4) the importance of the credibility of the defendant. 

In looking at the first factor, courts consider the impeachment value of the prior conviction, with crimes of violence having less impeachment value.  They also consider the similarity of the crime to the offense charged.  The balance tilts further toward exclusion as the offered impeachment evidence becomes more similar to the crime for which the defendant is being charged. 

            The third factor looks at the importance of the defendant’s testimony to his defense at trial.  “The tactical need for the accused to testify on his or her own behalf may militate against use of impeaching convictions.” 

            In Mr. Caldwell’s trial, the government failed to carry its burden.  The trial was a classic case of he said / they said.  But this single factor is not enough to allow admission.  The prior gun convictions were similar to and identical to the charged offense, making the priors highly prejudicial.  The impeachment value of the prior convictions is low because unlawful firearm convictions do not by their nature imply a dishonest act.  Also, the government failed to show that the probative value of the evidence was not diminished by the passage of more than 6-1/2 years. Finally, Caldwell’s testimony was important to his defense; he would have taken a great risk by failing to testify in his defense. 

            Finally, the Circuit rejects defense argument that the out of court confession made by a second person at the scene should have been admitted as a statement against interest under Rule 804(b)(3).  Where a statement is offered to exculpate the accused in a criminal trial, it must be “supported by corroborating circumstances that clearly indicate trustworthiness.  Examples of corroborating circumstances include the lack of a close relationship between declarant and the accused, the fact that the statement was voluntarily made after the declarant was advised of his Miranda rights, and the fact that the statement was not made to curry favor with the government.

Summary by Renee D. Pietropaolo



 

En banc Court adopts “new rule” requiring a defendant to raise any procedural objection to a sentence after sentence is imposed

United States v. Flores-Mejia, No. 12-3149, 2014 WL 3450938 (July 16, 2014)

Overruling United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), the en banc Court held that procedural error at sentencing is preserved only if a party objects after sentence is imposed or at the time that the procedural error becomes evident.  The Court explained that it was adopting this new rule for several reasons:

(1)  Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced;

(2)  Objecting to a procedural error after sentence is pronounced will promote judicial efficiency because it allows a sentencing court to correct or avoid a mistake;

(3)  Requiring that a procedural objection be made at the time sentence is pronounced prevents “sandbagging” of the court by a defendant who raises an error on appeal while remaining silent at the sentencing hearing.

 In Flores-Mejia’s case, defense counsel raised several grounds for departures and variances in a sentencing memorandum and at the sentencing hearing.  One of the grounds raised was that Flores-Mejia’s cooperation with the government warranted a reduced sentence.  After hearing argument on this issue from both parties, the district court stated: “Okay, thanks.  Anything else?”  Neither party replied, and the parties proceeded to sum up their positions on sentencing.  The court then imposed sentence.

On appeal, Flores-Mejia contended that the district court committed procedural error in failing to sufficiently consider his argument that his cooperation warranted a lower sentence.  A panel of the Third Circuit agreed, relying upon Sevilla.  Upon the government’s request, the Third Circuit granted en banc review.   

Based upon the “new rule” adopted by the en banc Court, Flores-Mejia did not preserve the procedural error issue for appeal.  However, the Court decided not to apply the rule retroactively to Flores-Mejia.  Using an abuse of discretion standard, the Court concluded that the district court record did not reflect meaningful consideration of Flores-Mejia’s cooperation argument, and remanded the matter for resentencing.         

Judge Greenaway dissented, joined by Judges Smith, Shwartz, and Sloviter, and in part by Judge Fuentes.  The dissent takes the majority to task for creating a new rule of procedure, “without intervening Supreme Court precedent and without a majority of our sister courts,” “that flies in the face of Fed. R. Crim. P. 51.”  According to Judge Greenaway, the majority’s “fundamental change to our sentencing procedures . . . is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.”  The “new rule” will force busy district courts to sit through “an objection—probably formulaic—in every criminal case.”  Recognizing that sentencing hearings are “highly charged and fraught with emotion,” the dissent asserts that “[i]t  is unwise to burden counsel to engage in a reasoned analysis of the district court’s sentencing explanation and then interpose an objection that was already asserted, all while attending to an emotional client and raising residual issues, like surrender dates and places of incarceration.”  

Circuit holds for the first time that the government can have a sufficiently important interest in forcibly medicating a defendant to restore his mental capacity and render him fit to proceed with sentencing

United States v. Cruz, No. 13-4378, 2014 WL 3360689 (July 10, 2014)

A jury convicted Cruz of two counts of threatening a federal law enforcement officer.  Prior to sentencing, the government raised concern about Cruz’s competency and moved for a determination on the matter.  The motion was granted and a BOP forensic psychologist concluded that Cruz suffered from schizophrenic disorder, bipolar type.  A second competency evaluation determined that Cruz would remain mentally incompetent, but that his competency could be restored through "a period of forced medication." The government sought an order authorizing BOP to forcibly medicate Cruz.   The district granted a hearing, pursuant to Sell v. United States, and subsequently ordered that Cruz be forcibly medicated.  Cruz moved to stay the order, which was granted, and appealed. 

The Third Circuit conducted a plain error review because Cruz raised his arguments for the first time on appeal.  Cruz failed to file an opposition to the government’s request for an order of forcible medication.  On appeal, Cruz cited to his non-concurrence to the government’s request and he argued that there was no need to file an opposition because the district court quickly scheduled an evidentiary hearing.  The Third Circuit disagreed – "Cruz was on notice of the Government’s ultimate request for relief, and he thus was or should have been aware of his obligation to oppose (or be deemed to support) it."

As to burdens of proof, the Third Circuit last addressed the Sell-specific standard of review in United States v. Grape, 549 F.3d 591 (3d Cir. 2008), in which it concluded that under Sell, the government had the burden of proof on factual questions and had little reason to address burden-shifting.  Now, the Third Circuit builds up on the Grape standard by "adopt[ing] both the Milkulich [the 6^th Circuit] burden-shifting standard and the mixed standard of review set forth in Dillon [the D.C. Circuit]."

As to the Sell factors, the Third Circuit found that the government can have an important interest in restoring a defendant’s mental competency in order to proceeding with sentencing, noting that the government "cannot achieve the sort of uniformity contemplated in Booker without formal sentencing proceedings."  The Court also agreed with the district court that Cruz’s crimes were "serious."  The Court also decided that the district court did not commit reversible error in relying on the PSR because Cruz raised that issue for the first time in his Reply Brief.

Circuit holds for the first time that § 3553(a) factors must be considered in determining length of imprisonment for mandatory revocation of supervised release under § 3583(g)

United States v. Thornhill, Nos. 13-2876, 13-2877, 13-2878, 2014 WL 3056536 (July 8, 2014)



After six petitions to revoke her term of supervised release based on positive drug tests and two additional convictions, the district court revoked Thornhill’s supervised release under 18 U.S.C. § 3583(g) and sentenced her to 36 months of imprisonment. On appeal, Thornhill argued that the district court failed to articulate whether it considered the sentencing factors under § 3553(a) and failed to acknowledge her mitigation arguments. The government argued that the district court was not required to, but did consider some of the 3553(a) factors.



In this matter of first impression, the Third Circuit held that 3553(a) factors must be considered in mandatory revocation under 3583(g). The Court explained that statutory interpretation is not limited to the statutory language alone – the "structure of the section in which the key language is found and the design of the statute as a whole and its object" also illuminate the plain meaning of the statute. Here, the "text and structure of the Sentencing Reform Act, §§ 3551-3586" also informed the Court’s analysis.



While consideration of 3553(a) factors is required for discretionary revocation under 3583(e), mandatory revocation makes no reference to 3553(a). However, since revocation under 3583(g) "is automatic," "[t]here was no need, therefore, for Congress to instruct that the § 3553(a) factors be considered prior to making a decision about mandatory revocation under § 3583(g)." In addition, the usage of the phrase "term of imprisonment" in § 3583(g) "incorporates both § 3582 and its directives to consider the § 3553(a) sentencing factors." Furthermore, § 3553(a)’s applicability "fits neatly within the sentencing regime established by the Sentencing Reform Act."



After holding that § 3553(a) were required, the Circuit concluded that the district court had in fact considered these factors, and affirmed the sentence.



Notably, the Judge Rendell, concurring in part and dissenting in part, contends that district court could not foresee that the majority’s holding and did not "meaningfully consider the § 3553(a) factors." "Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guideline sentence." Hence, the case should have been remanded for resentencing.

Circuit finds no prejudice in 2255 claim of failure to cross-examine and failure to object to indictment on Double Jeopardy grounds, and broadens the Double Jeopardy analysis of the overt act factor for conspiracy charges.

United States v. Travillion, No. 12-4184 (July 7, 2014)
    
The Third Circuit affirmed the district court’s denial of Travillion’s 2255 motion for ineffective assistance, finding no prejudice. Travillion was convicted on three counts -- conspiracy to distribute crack cocaine, conspiracy to distribute powder cocaine, and possession with intent to distribute crack cocaine, all in violation of 21 USC §§ 846, 841(a)(1) and (b)(1)(A)(iii). His defense at trial was that he was not a member of the conspiracy and that the drug involved was heroin, not crack. Michael Good, Travillion’s main supplier and government witness, testified that on the wiretapped calls with Travillion, they negotiated the price of crack. Travillion’s attorney cross-examined Good on several issues, including his addiction history and his cooperation with the government for a reduced sentence.

In his 2255 claim, Travillion argued that his trial counsel was ineffective for (1) failing to properly cross-exam Good with his prior testimony in another case, covering the same time and facts; and (2) failing to object to the indictment on Double Jeopardy grounds for conspiracy charges in Counts Nine and Thirteen.

At the outset, the Third Circuit explained that a 2255 motion "is reviewed much less favorably than a direct appeal of a sentence" and that relief is only available when "the claimed error of law ‘was a fundamental defect which inherently results in a complete miscarriage of justice....’ " The Circuit also noted that issues which were resolved in a direct appeal may "be used to support a claim for ineffective assistance of counsel."

For each of Travillion’s two claims, the Third Circuit applied the two-prong Strickland test for deficiency and prejudice, examining prejudice first. As to the first claim of failure to properly cross-examine, the Third Circuit agreed with the district court that there was no prejudice because the trial evidence was overwhelming and the outcome of the trial would have been the same. Defense counsel attacked Good’s credibility in his closing arguments and advance the defense that (1) Travillion was not a co-conspirator and (2) he possessed heroin, not crack. The Circuit also noted that the district court’s charge to the jury "protected Travillion by instructing the jury to heavily scrutinize Good’s testimony as key witness for the Government." Finding no prejudice, the Circuit court "need not address deficiency prong."

For Travillion’s second claim, the Third Circuit found that Travillion could not meet the totality of the circumstances test. The Court "employs a ‘totality of the circumstances’ test when determining whether a pretrial evidentiary hearing is necessary to determine if an indictment is invalid under the Double Jeopardy clause." The totality of circumstances test requires the examination of four factors: (a) "locus criminis" of the two conspiracies (b) temporal overlap between the two conspiracies, (c) overlap of personnel, and (d) over acts. "These factors need not be applied in a rigid manner." The Circuit court addressed the latter two factors at length. Regarding (c), the Court explained that while there was overlap of personnel, "their knowledge of, and objectives for," were not common enough to form one conspiracy.

In the analysis of (d), the Court echoed the requirement of a less rigid application of these factors. The Third Circuit held that since §846 does not require an overt act, "the strict approach to [overt acts] prong is too narrow and rigid under the modern ‘totality of the circumstances’ test... Thus, we now broaden our analysis and decide whether to infer only one conspiracy from the relevant activities of those involved." In concluding the separate conspiracies existed, the Court noted the Supreme Court’s holding that one "may be subject to multiple prosecutions of the same conduct if Congress intended to impose multiple punishments for that conduct." Congress formulated different statutes and punishments for crack and cocaine. The Court explained that the "use of separate conspiracies provides a convenient way of determining [whether the jury convicted the defendant of conspiracy to distribute crack or conspiracy to distribute cocaine, or both.]"

The Court concluded that t no fundamental defect inherently resulting in a complete miscarriage of justice was show and affirmed the denial of the 2255 motion.

Supreme Court grants certiorari to resolve intent question in threat cases under 18 U.S.C. § 875(c)

On June 16, 2014, the United States Supreme Court granted certiorari in Elonis v. United States, No. 13-983 (Third Circuit opinion here). Anthony Elonis was convicted after trial of posting threatening communications on Facebook, in violation of 18 U.S.C. § 875(c). Applying an objective intent standard, the Third Circuit upheld Elonis's conviction, finding the evidence sufficient to support the jury's conclusion that the Facebook statements constituted true threats.

The Supreme Court granted certiorari to resolve a circuit split on the intent issue. The question presented by Elonis's cert petition is:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Court ordered the parties to also address the following question:  Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant's subjective intent to threaten.

Alleyne v. United States Not Retroactive to Cases on Collateral Review

In United States v. Reyes, No. 13-3537, 2014 WL 2747216 (3d Cir., June 18, 2014), Defendant was convicted of armed Hobbs Act robbery and sentenced to 180 months in prison. His conviction and sentence were upheld on appeal. Defendant subsequently filed a habeas petition under 28 U.S.C. § 2255. Prior to the court’s ruling on the habeas petition, Defendant requested permission to amend it in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), in which the Supreme Court ruled that any facts that raise the range of penalties to which a defendant is exposed are elements of the offense and must be found beyond reasonable doubt. The court denied Defendant’s request, ruling that Alleyne did not apply retroactively to cases that were on collateral review. Nonetheless, the court issued Defendant a certificate of appealability on that issue. During the briefing on Defendant’s appeal, the Third Circuit issued an opinion in United States v. Winkleman, et al., 746 F.3d 134 (3d Cir. 2014), ruling that Alleyne does not apply retroactively to cases on collateral review. The Third Circuit answered a question left unanswered in Winkleman, namely that Alleyne announced a new rule of criminal procedure. However, citing Schriro v. Summerlin, 542 U.S. 348 (2004), and Teague v. Lane, 489 U.S. 288 (1989), the Third Circuit concluded that Alleyne was not retroactive to cases on collateral review because the new rule did not place the conduct or individuals covered by the statute beyond the government’s power to punish, nor was it a watershed rule that implicated the "fundamental fairness and accuracy of the criminal proceeding." To the contrary, the Third Circuit recognized that Alleyne announced a procedural, not a substantive rule. Further, the Third Circuit determined that Alleyne was not a watershed rule because it provided "only a limited modification to the Sixth Amendment rule announced in Apprendhi v. New Jersey, 530 U.S. 466 (2000)." The court noted that, as the Supreme Court has not decided to make Apprendhi retroactive, Alleyne should not be deemed retroactive.

Enhancement under U.S.S.G. § 2J1.2(b)(2) for Substantial Interference with Administration of Justice Applies for Destruction of Hard Drive during Child Porn Investigation

In United States v. Waterman, No. 13-3825, 2014 WL 2724131 (3d Cir., June 17, 2014), Defendant challenged the sentence imposed for his conviction for destruction of records, in violation of 18 U.S.C. § 1519. Defendant, a police officer, destroyed a computer hard drive during a FBI investigation into his alleged possession of child pornography. Defendant initiated the investigation by informing his supervisor that he had in fact viewed child pornography on his personal home computer. Nonetheless, two years after his disclosure, Defendant attempted to destroy one of his personal computers. The court noted that Defendant actually destroyed the circuit board of the computer, but not the data platters which contained the data on the hard drive. Experts testified that the damage to the circuit board was extensive, and consequently, the data was irretrievable. During sentencing, the court adopted the probation office’s recommendation to apply the three-level enhancement under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the administration of justice. The court concluded that Defendant’s actions resulted in the early termination of the FBI’s investigation. The sentencing court reviewed the § 3553(a) factors and ultimately granted Defendant a six-month downward variance. Nonetheless, Defendant appealed the sentence, challenging the application of the enhancement under § 2J1.2(b)(2). Defendant claimed that the evidence presented was insufficient to prove that he had destroyed the hard drive as charged because no one witnessed him committing the act. The Third Circuit rejected Defendant’s argument, ruling that the circumstantial evidence was sufficient to support the lower court’s determination, based upon a preponderance of the evidence, that Defendant had in fact destroyed the hard drive. Note that the Third Circuit interpreted the enhancement, which mandates that the "offense resulted in substantial interference with the administration of justice," to impose a causation requirement. The timing of the offense in relation to the events which give rise to an assertion of substantial interference is a relevant factor for the sentencing court to consider when determining whether the offense caused substantial interference.

Use of a "Moocher Hunter" to Determine a Computer's Whereabouts is not a Search Under the Fourth Amendment

In United States v. Stanley, No. 13-1910, the defendant was "mooching" off a neighbor's wireless internet router, which was not password-protected.  The officer realized this when he traced the IP address and obtained the subscriber information from Comcast, executed a search warrant at the neighbor's home, and did not find the child pornography he suspected had been downloaded from a file sharing network.  The officer then used a "moocher hunter," which is a mobile tracking software tool, to determine the whereabouts of the computer that was "mooching" off the neighbor's wireless router.

The Third Circuit held that this was not a search within the meaning of the Fourth Amendment.  The Court distinguished Kyllo v. United States, 537 U.S. 27 (2001) (the thermal imaging case), because in that case, the defendant confined his marijuana growing activities to the home.  Here, the defendant made no effort to confine his activities to his own home.  The Court reasoned that in effect, the defendant reached a "virtual arm" across the street to exploit the neighbor's internet connection.  Thus, any subjective expectation of privacy he may have had is not one society is prepared to recognize as reasonable.  The Court appeared to leave open a distinction between unauthorized wireless connections and authorized ones.

Importantly, the Third Circuit rejected the district court's finding that the defendant had no legitimate expectation of privacy because he voluntarily disclosed his signal to third parties, a rationale the Court feared "might open a veritable Pandora's Box of Internet-related privacy concerns."

 

To qualify for the exception to the warrant requirement, a "knock and talk" encounter must begin at the front door

Responding to a police dispatch, Pennsylvania State Trooper Jeremy Carroll and another trooper proceeded to the home of Andrew and Karen Carman. The troopers were looking for a man who had stolen two loaded handguns and a car with New Jersey plates. They had neither a warrant to search the Carmans' property, nor a warrant to arrest the theft suspect. Upon arriving at the Carman residence, the troopers bypassed the front door of the home and proceeded directly to the back of the house and onto a deck adjoining the kitchen. On the deck, Trooper Carroll and Andrew Carman scuffled. The Carmans' brought unlawful entry and unlawful seizure claims under 42 U.S.C. § 1983. The case proceeded to trial. After opening arguments and at the close of Carroll's testimony, the Carmans moved for a directed verdict based on Florida v. Jardines, 133 S.Ct. 1409 (2013). The District Court denied the motions. Both claims were also rejected by a jury. This appeal followed.

On appeal, the Third Circuit, in Carman v. Carroll, No. 13-2371 (3d Cir. May 15, 2014), reversed the district court's denial of the Carmans' motion for judgment as a matter of law on their unlawful entry claim, but affirmed the jury's verdict on the Carmans' unlawful seizure claim, finding sufficient evidence to support the jury's verdict. The Court began by reiterating the Supreme Court's holding in Jardines, that a warrantless search of a home's curtilage is presumptively unreasonable. It was undisputed that Carroll entered the Carmans' curtilage (backyard) without a warrant, without consent, and without exigent circumstances. Carroll argued that his entry was justified as a "knock and talk" encounter, which was a permitted exception to the warrant requirement.

Under the "knock and talk" exception, a police officer may approach a home and knock, just as any private citizen may do. In order to satisfy the "knock and talk" exception, three requirements must be met. First, a police officer, like any visitor, must knock promptly, wait briefly to be received, and then leave if not expressly invited to stay. Second, the purpose of a "knock and talk" must be to interview the occupants of the home, not to conduct a search. Finally, "a 'knock and talk' encounter must begin at the front door because that is where police officers, like any other visitors, have an implied invitation to go." Here, the Court held that Trooper Carroll could not avail himself of the "knock and talk" exception because he entered the back of the Carmans' property without approaching the front door first. The Court rejected Carroll's explanation that the layout of the Carmans' property (a corner lot with side street parking) made the back door the most expedient and direct access to the house from where the troopers had to park. The Court noted that the Fourth Amendment is not grounded in expediency and the "knock and talk" exception does not give police license to bypass the front door and enter other parts of the curtilage based on expediency concerns. Accordingly, the Court reversed the district court's denial of the Carmans' motion for judgement as a matter of law on the unlawful entry claim.

Five Years of Inaction Leads to Dismissal of Case Due to Violation of Right to Speedy Trial

In United States v.Velazquez, No 12-3992 (3d. Cir. April 14, 2014), the Third Circuit reversed the district court’s decision to deny Velazquez’s motion to dismiss based on a violation of his right to a speedy trial.

 

After investigating Velazquez on narcotics charges, the DEA attempted to find him at the address of one of his associates, but he was not there.  The DEA declared Velazquez a fugitive, leaving his apprehension to the United States Marshalls Service, where Degan was assigned to the case.  In November 2005, Degan transferred.  Between November 2005 and November 2010, authorities only checked NCIC eight times to find out whether any law enforcement agencies encountered Velazquez.  The DEA included him on the “Most Wanted” section of the website for the local DEA office.  The DEA renewed the search for Velazquez in November 2010.  In December 2011, he was arrested on an unrelated narcotics charge and extradited to the Eastern District of Pennsylvania. 

Velazquez filed a motion to dismiss the indictment based on a speedy-trial violation.  The district court denied the motion finding that the government acted reasonably diligent in pursuing him.  Velazquez pleaded guilty conditionally, reserving his right to appeal the speedy trial issue, and was sentenced to 80 months in prison followed by five years of supervised release.

On appeal, the Third Circuit applied the test from Barker v. Wingo, 407 U.S. 514 (1972), using four factors to determine whether there was a violation of Velazquez’s right to a speedy trial:  (1) the length of the delay before the trial, (2) the reason for the delay, including a consideration of whether the government was to blame, (3) the extent to which the defendant asserted his right to a speedy trial and (4) the amount of prejudice suffered by the defendant. 

The Third Circuit found the length of time of the delay, nearly seven years between indictment and trial, was sufficient to trigger an inquiry into the other factors.  Once the existence of a delay was shown, the government had the burden of justifying the delay, which the government in this case failed to do.

The government asserted that Velazquez caused the delay in trial, arguing that his lack of verifiable employment history, his receiving mail at a post office box, and his ability to avoid apprehension until his arrest on unrelated charges indicates his deliberate attempt to conceal his whereabouts.  However, the Third Circuit found that the delay, and particularly the five years of inaction, demonstrates the government’s failure to make a “serious effort” to apprehend Velazquez, thereby causing the delay.

The Third Circuit held that asserting the right to a speedy trial after arrest, when Velazquez discovered the indictment against him, is considered a timely assertion of the right and weighs in favor of Velazquez.

The extraordinary length of delay in this case led to a presumption of general prejudice against the defendant, which the government failed to overcome. 

The Third Circuit found the district court’s determination that the government utilized reasonable diligence to find Velazquez was clearly erroneous.  For this reason, the Third Circuit reversed the district court’s judgment and remanded for the purpose of dismissing the indictment against Velazquez with prejudice. 

Denial of Suppression Motion Reversed Because Search of Home Incident to Arrest Required “Articulable Basis”

In United States v. White, No. 13-2130 (3d. Cir. April 14, 2014), the Third Circuit vacated an order denying a motion to suppress and remanded for further proceedings in order to determine the applicability of alternative exceptions to the warrant requirement that require an “articulable basis”.

White pled guilty to a felon in possession of a weapon charge, expressly reserving his right to appeal the denial of his suppression motion.  White was sentenced to 96 months imprisonment and filed his appeal solely challenging the denial of his suppression motion.
 

In April of 2012, two state police troopers responded to a domestic disturbance at White’s residence.  The troopers ordered White out of his residence, instructed him to lay face down and arrested him approximately 20 feet from his residence.  The residence was searched and two firearms were found and seized.  A search warrant, based in part on the two firearms seized, was executed on the residence weeks later and an additional 91 firearms were seized.  White moved to suppress all 93 firearms and specifically argued that the initial warrantless search of his home was in violation of his Fourth Amendment Rights.

At the evidentiary hearing, the troopers testified that the warrantless search was performed in the interests of safety.  The district court denied the motion to suppress and held that the sweep of the residence that yielded the seizure of two firearms was lawful because reasonable suspicion was not required to perform searches incident to arrest under the first prong of the Supreme Court's decision in Maryland v. Buie, 494 U.S. 325 (1990).

The Third Circuit disagreed and held that the first prong of Buie is only available when the arrest is made in the home.  According to Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997), arrests that occur just outside the home must be analyzed under the second prong of the Buie analysis which requires an “articulable basis” for protective sweeps.

Since White was arrested twenty feet from his residence, the second prong of Buie is appropriate and the district court must consider on remand if there was an “articulable basis” for the protective sweep under the circumstances at that time.

Public Official’s “Influence” over Governmental Decision Sufficient to Establish Hobbs Act Extortion

United States v. Bencivengo, No. 13-1836. Defendant John Bencivengo was the mayor of Hamilton Township, New Jersey, when he hit up his close friend, Marliese Ljuba, for some help with money. In exchange, Bencivengo offered to convince a member of the local school board not to put up for bid Ljuba’s highly lucrative commissions as the school board’s insurance broker. In addition, Bencivengo agreed to approve a candidate proposed by Ljuba for a vacant seat on the board. At Bencivengo’s subsequent trial, Ljuba testified she believed Bencivengo could influence the school board member because “the Mayor is the head of the Republican party in Hamilton Township,” and that his endorsement of her proposed candidate was a practical necessity “if you want a position on the school district.” As a formal matter, Mayor Bencivengo had no official authority over actions of the school board, no actual power to replace a board member, and no other means of ensuring that Ljuba retained her brokerage contract.

Held, in prosecution for extortion under color of official right in violation of Hobbs Act, government not required to prove defendant had “effective power” over decision whether to place contract for bid; enough to show that defendant has, and agrees to wield, “influence over a governmental decision,” or that defendant’s official “position could permit such influence,” and victim reasonably believed defendant wields such influence. Conviction affirmed.

Separately, the Court holds that an indictment charging a Travel Act violation in one count and a Hobbs Act violation in another based on the same transaction is not multiplicitious in violation of the Double Jeopardy Clause. The Travel Act requires proof of interstate travel or use of the mails or other interstate facility, whereas the Hobbs Act requires proof of an effect on interstate commerce.

The Court further holds that the district judge’s statements in front of the jury, which “admonished defense counsel on several occasions to clarify questions that perhaps did not need to be clarified, as they were clearly understood, “ did not give rise to reversible error. The jury was twice instructed not to draw any inference from the court’s comments as to whether it held any opinion as to the defendant’s guilt, and evidence of guilt was in any event overwhelming.

Practice Note: Bencivengo suggests that where a challenge to the sufficiency of the evidence is predicated on a disputed construction of the charging statute, preserving the sufficiency claim requires that objection also be raised to any jury instruction embodying the government’s preferred construction. Thus, while instructional error would seem to be distinct from evidentiary insufficiency, special care should now be taken in asserting and preserving this genus of claims. Clearly, this is the best practice in any event, as challenges premised on a construction of the charging statute will ordinarily support both a corresponding instruction and a Rule 29 motion for judgment of acquittal.

Conviction Vacated Because Venue Did Not Lie in New Jersey in Computer Fraud and Abuse Act Prosecution

In United States v. Auernheimer, No. 13-1816, the defendant was accused of hacking into AT&T's system and obtaining the email addresses of 114,000 iPad owners.  Neither he, his co-conspirator, nor the servers he hacked were in New Jersey, but some of the iPad owners lived there, and the government prosecuted him in the District of New Jersey.  The district court denied his request for a jury instruction on venue, reasoning that venue properly lied in New Jersey as a matter of law.

The Third Circuit reversed, noting that proper venue is twice guaranteed to a criminal defendant in the Constitution, at Article III, Section 2, Clause 3 and in the Sixth Amendment.  It is also codified in Federal Rule of Criminal Procedure 18.  The panel reasoned that neither of the "essential conduct elements" of the Computer Fraud and Abuse Act ("CFAA") offense - accessing a computer without authorization, and obtaining information - occurred in New Jersey.  Further, because the government charged Auernheimer with conspiring to violate the CFFA in furtherance of a New Jersey state crime, neither of the conduct elements of that offense (accessing a computer without authorization, and disclosing information) occurred in New Jersey either.  Therefore, venue was not proper on the conspiracy count.

With respect to the identity fraud offense, neither of the essential conduct elements (transfer, possession or use, and doing so in connection with a federal crime or state felony) occurred in New Jersey, so venue was not proper on that charge.

The Court rejected the government's policy arguments for discounting the ordinary "essential conduct elements" test for venue.  It also rejected the government's argument that the venue error was harmless.  The Court indicated that a venue error may be structural and in any case this error was not harmless.  The Court reversed the district court's venue determination and vacated Auernheimer's conviction. 

Special thanks to Claudia Van Wyk for her contributions to this post!

 

 


 

Congress' Delegation of Authority to Determine SORNA's Applicability to Pre-Act Sex Offenders Did Not Violate the Nondelegation Doctrine

In United States v. Cooper, No. 13-2324, the Third Circuit considered whether Congress' decision to delegate authority to determine the applicability of federal registration requirements to sex offenders convicted before the Sex Offender Registration and Notification Act's ("SORNA") enactment was constitutional.  SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update his or her registration. 18 U.S.C. § 2250(a). The statute defines sex offenders to include persons convicted of sex offenses prior to SORNA’s enactment. 42 U.S.C. § 16911(1). However, Congress delegated to the Attorney General the authority to determine whether SORNA’s registration requirements would apply to pre-SORNA sex offenders. The Attorney General has since determined that SORNA’s registration requirements do in fact apply to offenders convicted of sex offenses prior to SORNA’s enactment. 28 C.F.R. § 72.3.

The Court determined that Congress’ delegation of this responsibility to the Attorney General was constitutional under the "nondelegation doctrine," which is rooted in the principle of separation of powers. The Court declined to apply a heightened standard here simply because Congress delegated the authority to create criminal liability. Instead, the Third Circuit analyzed Congress’ delegation of authority under the more common "intelligible principle" test. Under the intelligible principle test, a delegation of authority is constitutional so long as Congress "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." See Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Court ultimately concluded that since Congress laid out the general policy underlying the SORNA, the public agency to apply the policy, and the boundaries of the delegated authority, its delegation to the Attorney General did not violate the nondelegation doctrine.
 

Second or Successive 2255 Petition Not Authorized to Seek Relief Under Alleyne v. United States

Two brothers in United States v. Winkleman, Nos. 03-4500, 03-4753, filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held that "any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury" and proved beyond a reasonable doubt. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255.

A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters "our understanding of the bedrock procedural elements" of the adjudicatory process.

For those proceeding outside the successive petition context, it may be possible to argue that the Court's statement that Alleyne is not a watershed rule is dictum, since it was not necessary to the Court's ruling on retroactivity for successors under Tyler v. Cain, 533 U.S. 656, 668 (2001).

Defendant eligible for sentence reduction when mandatory minimum not applied at original sentencing

In United States v. Ortiz-Vega, 12-1482 (3d Cir. March 12, 2014), the Court found that where a defendant was subject to a mandatory minimum sentence but that minimum was not actually applied, he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on retroactive changes to the guidelines. Ortiz-Vega’s crack cocaine offense called for a guideline range of 97 to 121 months but the count of conviction at that time carried a mandatory minimum 120 months. 21 U.S.C. §841(b)(1)(A)(iii). Nonetheless, the court sentenced Ortiz-Vega to 108 months and the government did not challenge the sentence. When Ortiz-Vega moved for resentencing, arguing that the new range would be 78-97 months, the District Court found a reduction would not be consistent with the Commission’s policy statements (Step Two), relying on United States v. Doe, 564 F.3d 305 (3d Cir. 2009) to treat the mandatory minimum as the “applicable guideline range,” whether or not the mandatory minimum had been applied. However, Doe was superseded by the 2010 amendments to the guidelines and the “applicable guideline range” corresponds to offense level and criminal history category if the mandatory minimum was not applied. See United States v. Savani, 733 F.3d 56 (3d Cir. 2013) (discussing below minimum sentences based on substantial assistance). The Court would not read a limitation into the guideline commentary for substantial assistance, even though it is one of few permissible bases for sentencing below a mandatory minimum. The Court then considered whether Ortiz-Vega was sentenced based on a range that has been subsequently lowered (Step One). The Court found Ortiz-Vega was not “subject to” or subjected to the mandatory minimum sentence and thus his range had been lowered. The Court found it appropriate to perpetuate the sentencing error because prior errors cannot be modified in a 3582 proceeding and this principle should not only be used against defendants. The case was remanded for the District Court to consider a sentence reduction.

Incomplete counterfeit bills count towards face value calculation under U.S.S.G. § 2B5.1(b)(1)

In United States v. Woronwicz, No. 12-4320 (3d Cir. March 12,2012), the Court held that incomplete counterfeit bills should be included in face value calculation under U.S.S.G. § 2B5.1(b)(1). Woronwicz was found with over $207,000 in counterfeit bills: 90% were completed on only one side, and $20,000 were completed on both sides. He pled guilty to counterfeiting in violation of 18 U.S.C. § 474. While Note 3 to § 2B5.1(b) excepts “items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny,” the reach of Note 3 is limited to subsection (b)(2). Incomplete bills, like bills of unpassable quality, all count towards (b)(1). Thus, the 12-level enhancement for counterfeit currency exceeding $200,000 was correctly applied.

In context of Grand Jury investigation, District Court followed and correctly applied proper standard to determine whether and how to conduct in camera examination of grand jury target’s former attorney to consider whether attorney’s testimony before grand jury could be compelled under the crime-fraud exception to attorney-client privilege, and did not abuse its discretion in concluding that there was sufficient evidence for the crime-fraud exception to apply.

In In Re: Grand Jury Subpoena, No. 13-1237 (3d Cir. Feb. 12, 2014), a grand jury, investigating alleged violations of the Foreign Corrupt Practices Act, served a subpoena on the former attorney of a target of the investigation, and the Government moved to enforce the subpoena and compel the attorney’s testimony based on the crime-fraud exception to the attorney-client privilege. The target sought to quash the subpoena by asserting the attorney-client privilege and work-product protection. The District Court, after questioning the attorney in camera, with only the attorney’s counsel present, found a reasonable basis to suspect that the target intended to commit a crime when it consulted the attorney and could have used the information gleaned from the consultation in furtherance of the crime. The court concluded that the crime-fraud exception applied and issued an order compelling the attorney to testify before the grand jury.

The target appealed, challenging the standard that the District Court applied to determine whether to conduct an in camera examination, it’s decision to hold an in camera examination and the procedures that it used in that examination, and whether the crime-fraud exception applied to the target’s communication with their attorney.

The Third Circuit held, first, that the District Court applied the proper standard to determine whether to conduct an in camera examination, based on the Supreme Court’s decision in United States v. Zolin, 491 U.S. 554, 572 (1989): that the District Court find a factual basis adequate to support a good faith belief by a reasonable person that in camera review may reveal evidence to establish the claim that the crime-fraud exception applies, and that such factual basis can include unmemorialized oral communications.

The Court next held that the District Court properly applied the Zolin standard when it relied on the Government’s Ex Parte Affidavit, which provided details of the FBI’s examination sufficient to permit the District Court to conclude that the Zolin standard was met. In addition, the District Court did not abuse its discretion in excluding the target from the in camera interview or in declining to release a transcript or summary of the testimony.

Further, the Court held that the District Court did not abuse its discretion in determining that there was sufficient evidence to conclude that the target was committing or intending to commit a crime or fraud when it consulted the former attorney, and that the target used the attorney’s advice in furtherance of a crime or fraud, and therefore the crime-fraud exception applied.

Finally, the Court held that the former attorney’s testimony was not protected by the work-product doctrine because it does not apply in light of a crime-fraud finding, and because the communications at issue were not made in the course of preparation for possible litigation.