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December 19th, 2009UncategorizedIn U.S. v. Schultz, No. 06-11673 (April 22, 2009), the Court affirmed fraud convictions and dismissed the defendant’s appeal in part for lack of jurisdiction.
The Court found no error in having a Magistrate Judge, as opposed to an Article III district court, decide Schultz’s Faretta motion for self-representation.
The Court noted that it lacked appellate jurisdiction to review the rulings of a Magistrate Judge, and therefore could not review Schultz’ challenge to the Magistrate Judge’s order denying self-representation. The Court noted that Schultz’ attorney orally objected at the commencement of trial in the district court to the lack of self-representation, and that the district court ruled "denied." However, the Court noted that Schultz’ oral motion did not alert the district court to the Magistrate Judge’s order. The Court rejected Schultz’s argument that the Magistrate Judge failed to inform him of the 10-day deadline for filing objections. The Court pointed out that the 10-day deadline notice requirement applies to reports and recomendations, not to pre-trial orders, and, further, was not yet in effect at the time of Schultz’ proceedings prior to September 2005. -
December 18th, 2009UncategorizedIn U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal. -
August 9th, 2009UncategorizedIn McGahee v. Alabama Dep’t of Corrections, No. 07-15602 (March 4, 2009), the Court granted a writ of habeas corpus to an Alabama death row inmate, finding that Alabama violated Batson v. Kentucky by using its peremptory strikes in a discriminatory manner at his trial for 1986 murders.
The Court found that the Alabama trial court, and the Alabama Court of Criminal Appeals, failed to properly apply Batson. The record indicated that one black juror had been struck because the State "did not want to leave him individually," a remark the Court interpreted as being because of the juror’s race. In addition, all black members of the venire were struck by the State, either for cause, or by the use of peremptory challenges. "There can be no clearer ‘pattern’ than the total removal of all African-American jurors from the venire by the State." Further, the State attempted to justify striking multiple African-American jurors because of their "low intelligence." There was no support for this finding in the record. "Furthermore, the State’s claim that several African-Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries."
The Court called the removal of all African-American jurors from the venire "astounding." The Court found that race was a basis for striking specific black members of the venire, and a Batson violation therefore occurred. -
August 8th, 2009UncategorizedThe Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No. 07-3447 (3/6/09), the Court was faced with an indictment charging two conspiracies to commit bribery (18 U.S.C. s 371 and 666(a)(1)(B)). The indictment described the object of the first conspiracy as "to enrich [defendants] by corruptly soliciting and accepting payments from contractors with the intent of being influenced . . . ." It also recited six overt acts, including solicitation and acceptance of payments as well as (1) the return of one of the payments as a "loan," and (2) the refusal to return another of the payments as a "loan." Only these last two overt acts fell within the 5-year limitations period, however.
The Court held that, because the conspiracy was charged as having a simple solicit/accept object, the conspiracy was complete when that occurred and the later return or refusal to return the payments as "loans" could not have furthered the conspiracy as charged. The statute of limitations had therefore run, and the defendant's convictions on the first conspiracy count, as well as on the underlying extortion counts, were vacated. The second conspiracy count charged a later conspiracy, which was not time-barred. The Court upheld the defendant's conviction on that count against a sufficiency-0f-the-evidence challenge.
Perhaps inadvertently, the Court also dropped a bombshell by stating without analysis that section 666 bribery does not require proof of a quid pro quo. This issue has not previously been addressed in this circuit, is the subject of a split among others, was not actually at issue in Bornman -- and, in result, is arguably inconsistent with the Third Circuit's decision in U.S. v. Kemp. The Court's cite to the Supreme Court's decision in Sabri v. U.S., 541 U.S. 600 (2004) suggests that it confused the federal nexus issue (i.e., the government need not show a link between the official act in question and the federal funds that provide the jurisdictional hook) with the quid pro quo issue (i.e., the government does need to show a link -- an exchange -- between the official act and the thing of value).
The Court also turned away the defendant's challenge to the denial of his severance motion, reaffirming that the difficult standard for severance is not met by a showing that the evidence in a case is most damaging with respect to only certain counts. -
August 6th, 2009UncategorizedU.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district. The court nonetheless gave her a 16 month sentence! The judge, the Hon. Sam E. Haddon, D. Mont., explained that it was for abuse of trust. The 9th found that the sentence was unreasonable, and had vacated and remanded, explaining that the court had to more closely look at the mitigating factors. The court, upon resentencing, still focused on the abuse of trust, and gave a 15 month sentence. The 9th (per curiam with Reinhardt and M. Smith) found the sentence again to be unreasonable. The 9th put down the marker that the reasonableness of a sentence is an inquiry, and that the appellate courts can say, in specific cases, that the sentence is too much. Moreover, the court did not appear to give sufficient, if any, weight to the recognized mitigation specifically found by the 9th. The case is also reassigned to a different judge because of the appearance for justice. In a dissent, Hall argues that the recent cases of Gall and Rita focus on the individualization of a sentence, and that is what took place here. The dissent would uphold the sentence as reasonable for the reasons stated, even if the 9th disagreed. The dissent seems to adopt the approach, championed by Scalia and Thomas, that focuses on procedure and not substance in appellate review. The response would be that a sentence still has to be rational and reasonable, and indicate a weighing of 3553 factors.
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July 28th, 2009UncategorizedIn U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.
Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him.
The Court found no abuse of discretion under FRE 404(b) and 403 in the admission of communications Covington had from jail with his ex-girlfriend, of a description of his prior assault, and of the gun he used in the prior assault. The Court recognized that prior domestic abuse evidence can be irrelevant and prejudicial in a narcotics prosecution. Here, however, this evidence was relevant to Covington’s motive to hire someone to kill his girlfriend. The motive was to silence the girlfriend.
The Court found a sufficient interstate nexus in Covington’s use the telephones because he called across state line to discuss the scheme. The FBI did not contrive to create an interstate nexus.
The Court further found an adequate agreement of payment for murder where Covington wired $300 that eventually reached his intended hit man. In addition, negotiations mentioned payment of six kilos of cocaine.
The Court affirmed the 40-year sentence. The Court rejected the argument that a prior conviction was constitutionally invalid and therefore should not have been counted at sentencing. The Court noted that Custis v. U.S. precluded the kind of challenge Covington raised. In addition, his guilty plea to a firearm in possession count amounted to an express admission that § 924(e) applied to him.
The Court rejected an improper "grouping" challenge. The Court noted that the two murder for hire counts should not have been grouped with the felon in possession of a firearm count, because the two offenses involved a different victim. The girlfriend was the victim of the two murder for hire offenses, while "society as a whole" is considered the victim of a felon in possession offense. Moreover, the motives were different. The murder for hire scheme intended to keep the girlfriend from testifying; Covington did not yet want her dead at the time of his pistol-waving assault. Finally, the Court found it reasonable for the sentencing court to run Covington’s sentences consecutively, and to impose the resulting 420-month sentence. -
July 27th, 2009UncategorizedIn Kimbrough v. Secretary, DOC, No. 08-11421 (April 13, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death in 1994.
The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase. The Court noted trial counsel’s strategic decision not to present such evidence because it would have opened the door to admission to the admission of more damaging information. -
July 26th, 2009UncategorizedIn U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue. -
July 25th, 2009UncategorizedIn U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court’s re-imposition of a life sentence.
In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence. Upon remand, the district court provided reasons.
The Court noted that its limited mandate precluded the district court from re-examining the life sentence based on new considerations. The Court recognized that one exception to the mandate rule involved intervening changes in the law. Here, one prior conviction that qualified Williams as a "career offender" was a Florida state conviction for battery of a law enforcement. The Florida Supreme Court recently held that this offense was not a "forcible felony." Further, the Court’s precedent which held that federal, not state, law governs for career offender purposes is now up for review in the United States Supreme Court. Yet neither of these recent developments constituted an intervening change in law. -
July 24th, 2009UncategorizedIn United States v. Dullum, No. 07-4502, March 13, 2009, the Court of Appeals affirmed the District Court’s ruling on five sentencing adjustments including; intended loss, vulnerable victim, abuse of trust, obstruction of justice, and acceptance of responsibility in this mail and bank fraud case. The most interesting fact about this case is that the defendant was a Secret Service Special Agent In Newark and an active member of his New Jersey church when the offenses were committed.
Dullum befriended two fellow church members who were recovering alcoholics/drug addicts, and were "a little slow", and volunteered to serve as their financial advisor. The Government maintained that it was in that capacity that Dullum forged one of the victim’s signatures on her will, did not inform the deceased’s family that he was acting as the executor of her estate, made misrepresentations about the value of the estate, transferred money form the estate’s bank account into his person account, and produced a fabricated $20,000 promissory note made out to him by the deceased.
The bank fraud aspect of the case involved a rental property at the Jersey shore owned by Dullum. He deposited two rent checks from the same renter into the estate account and then transferred the money to his personal account. (After depositing the first rent check in the estate bank account, Dullum falsely claimed he did not receive the check. He asked the renter to send a new check made payable to one of the two church members, who he falsely claimed was his wife.) Dullum made restitution for the two checks, after he was interviewed by the Secret Service and the bank froze his accounts.
Dullum argued that the District Court should have applied a four rather than a six level enhancement for loss because his bank fraud scheme (the rent checks) caused no loss. The Court held that Dullum intended to cause a loss for the full amount of the rent check. The Court rejected Dullum’s argument, that he is entitled to credit for repayment of the loss amount, because his repayment was after and not before the crime was uncovered. U.S.S.G. § 2B1.1 App. N.3(E)(I). The Court also rejected Dullum’s argument that the loss associated with the rent check should be reduced to zero because he had other funds in his bank accounts to offset the check.
Dullum argued that the two fellow church members were not vulnerable and were not direct victims. The Court, citing United States v. Monostra, 125 F.3d 183, 189 (3d Cir. 1997), held this enhancement is not limited to situations in which the vulnerable person is the direct victim of the offense of conviction, but that courts may look to all the conduct underlying an offense. The Court noted that the deceased victim was vulnerable, even if the direct victim was her estate. Further, there need only be one vulnerable victim in order for the two level enhancement to apply.
Dullum argued that his relationship with his two fellow church members was not the type of situation contemplated by the abuse of trust adjustment. The Court opined that through Dullum’s involvement with his church, he acted as a teacher, advisor and counselor to the two victims, and that he spent substantial time with them over three years as a trusted church figure of authority, counseling them with respect to their substance and alcohol abuse, and acting as their financial advisor. The Court found that Dullum’s position was a private position of trust and that the District Court did not err in applying the two level enhancement.
Dullum also objected to the two level enhancement for obstruction of justice. The Court held this adjustment was justified because during the investigation Dullum was interviewed three times, and provided five sworn statements, four of which contained lies. He also provided a forged promissory note during his third interview, and failed a polygraph examination. Only after repeated interviews, did he more truthfully discuss his actions in his fifth and final sworn statement.
Finally Dullum argued he should have received a three level, rather than one level, reduction for acceptance of responsibility. The Court determined Dullum was not entitled to the benefit of this adjustment because he refused to take full responsibility for his behavior, and, conduct resulting in an obstruction enhancement ordinarily indicates the defendant has not accepted responsibility for his criminal conduct. (U.S.S.C. § 3C1.1 App. N. 4). As a result, the Court determined the District Court was well within its discretion to grant a one level rather than three level reduction for acceptance of responsibility.
