Third Circuit Digests

Summarized by Research and Writing Attorneys

Louise Arkel, Thomas Belsky, Karina Fuentes, and Julie McGrain

FEBRUARY 2008

United States v. Smalley, __ F.3d __, 2008 WL 540253 (3d Cir., Feb. 29, 2008) (1) Defendant did not "otherwise use" dangerous weapon during course of bank robbery, but rather, "brandished or possessed" dangerous weapon, as required for imposing three-level enhancement, rather than four-level enhancement, from sentencing guidelines, where defendant possessed knife and threatened to stab bank teller, but knife remained in defendant's pocket during entire robbery and was never visible to teller; (2) District court's procedural miscalculation in sentencing defendant to four-level enhancement from guidelines for otherwise using dangerous weapon during course of bank robbery, rather than three-level enhancement for brandishing or possessing dangerous weapon by defendant's possession of knife in pocket and threatening to stab bank teller with knife that was never visible to teller, was not harmless error, since court would not have imposed same sentence using correct guidelines range; (3) District court's "amended judgment," imposing alternative sentence of three-level enhancement from guidelines for defendant's plea of guilty to bank robbery was not properly filed 14 days after pronouncement of original sentence imposing four-level enhancement, since judgment was filed after 7-day filing deadline, was not clerical error, and was not amplification of prior ruling as judgment added new concept without counsel having opportunity to address concept and did not explain or clarify court's reasons for imposing original sentence; (4) District court's "amended judgment" imposing alternative sentence of three-level enhancement from guidelines range for defendant's guilty plea for bank robbery did not render harmless court's original sentence imposing four-level enhancement, since court's bare statement that same sentence would have been imposed even if three-level enhancement was applied was not adequate explanation for deviating eight months above upper-end of properly calculated guidelines range. Congratulations to Federal Defender Richard Coughlin, AFPD Lori Koch, and RWA Julie McGrain (Camden) for securing a sentencing reversal in this case!

Link to case: http://www.ca3.uscourts.gov/opinarch/064552p.pdf

United States v. Langford, __ F.3d __, 2008 WL 466158 (3d Cir., Feb. 22, 2008) (1) Discontinuance of juvenile delinquency petition, following adjudication of delinquency, did not constitute a "prior sentence" under federal Sentencing Guidelines' definition, and thus should not have been used in calculation of defendant's criminal history under Guidelines; discontinuance did not result in imposition of adult or juvenile sentence, and was not equivalent to suspended or stayed sentence; (2) Federal district court's miscalculation of advisory Sentencing Guidelines range, in prosecution for bank robbery and armed bank robbery, which resulted in too-high criminal history category, was not rendered harmless by fact that sentence imposed was within overlap of incorrect and correct Guidelines ranges; sentence imposed was at bottom of incorrect range but at top of correct range, and there was nothing to indicate that court would have imposed same sentence under lower Guidelines range.

Link to case: http://www.ca3.uscourts.gov/opinarch/062774pa.pdf

United States v. Cunningham, __ F.3d __, 2008 WL 450654 (3d Cir., Feb. 21, 2008) (1) Defendant whose companion had been observed carrying book bag later determined to contain handgun and drugs, but who had not himself been seen handling bag, did not constructively possess gun, nor aid and abet its possession, precluding conviction for possession of firearm in furtherance of drug trafficking crime; defendant's walking down street while companion carried bag holding gun was insufficient to permit inference that defendant attempted to facilitate carrying of gun, or that gun was in any way instrumental to defendant's decision to participate in drug offense; (2) Evidence provided clear link between defendant and crack cocaine found in book bag handled by defendant's companion but not by defendant, and thus was sufficient to support constructive-possession or aiding-and-abetting conviction for possession with intent to distribute cocaine base; crack cocaine in bag was packaged in vials identical to those found in vehicle of individual observed conducting curbside transaction with defendant, allowing inference that drugs in bag and drugs dealt curbside by defendant had common source and that defendant knew about drugs in bag.

Link to case: http://www.ca3.uscourts.gov/opinarch/063899p.pdf

United States v. Drennon, __ F.3d __, 2008 WL 441816 (3d Cir., Feb. 21, 2008) In defendant's sentencing for bank robbery, the government's decision not to move for a one-level sentencing guidelines offense level reduction based on defendant having assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty deprived the district court of authority to apply such an offense level reduction, absent a showing that the government's decision not to file the motion was based on an unconstitutional motive.

Link to case: http://www.ca3.uscourts.gov/opinarch/063399p.pdf

United States v. Wise, 515 F.3d 207 (3d Cir. 2008) (1) Court of Appeals will not weigh credibility of witnesses; (2) In-court identification of defendant by witness was reliable, and thus admissible, despite prosecutor's imprudent showing of mug shot of defendant to witness with words "Harrisburg Police Department" written across top, where witness had lived with defendant for over one month prior to his arrest; (3) If the Court of Appeals determines that the district court has committed no significant procedural error in sentencing, the Court reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the United States Sentencing Guidelines range; the Court of Appeals can consider the extent of the district court's deviation from the Guidelines range, but the Court of Appeals must give due deference to the district court's decision that the statutory sentencing factors, on a whole, justify the extent of the variance; (4) If the applicable United States Sentencing Guidelines range has been lowered after a defendant has been sentenced, a district court may sua sponte, or upon motion of the defendant, or upon motion of the Director of the Bureau of Prisons, reduce the defendant's sentence, but only if the reduction would be consistent with a policy statement issued by the Sentencing Commission; (5) Sentence of 324 months imposed upon defendant, which was in middle of United States Sentencing Guidelines range, was substantively reasonable for his conviction on charge of possession with intent to distribute crack cocaine; although court considered that Guideline range was "much, much higher than it would be had [defendant] been dealing powder cocaine," which might have justified lower sentence, it also considered that nature and circumstances of offense was very serious and defendant's history and characteristics indicated that defendant had history of drug trafficking.

Link to case: http://www.ca3.uscourts.gov/opinarch/064926p.pdf

United States v. Maloney, 513 F.3d 350 (3d Cir. 2008) (1) Law enforcement officer's identification of defendant as the driver of a car that fled when officer attempted to stop him was not so suggestive as to violate defendant's due process rights, in proceeding for revocation of defendant's supervised release; although officer obtained official photographs of registered owner of car, based on his observation of the car and license plate, and then concluded that the owner was the driver he observed, the officer was close enough to identify the driver, he identified defendant as the driver less than 24 hours after the initial viewing, and officer was extensively cross-examined about his identification at the revocation hearing; (2) Condition of defendant's supervised release that he notify the probation officer within 72 hours of being arrested or questioned by law enforcement was impermissibly vague as applied, as it did not, as a matter of due process, put defendant on notice that he was required to notify his probation officer that he had been asked by a code enforcement officer for his peddler's license, and that he was issued a citation because his license was not properly displayed on his cart; (3) Remand to the District Court was necessary to give the District Court the opportunity to consider whether a shorter sentence upon revocation of defendant's supervised would be appropriate, in light of the Court of Appeals determination that the defendant only committed two violations of his supervised release terms, rather than three violations as determined by the District Court. Congratulations to AFPD K. Anthony Thomas and RWA Louise Arkel (Newark) for their victories in this appeal!

Link to case: http://vls.law.villanova.edu/locator/3d/Jan2008/063745p.pdf

United States v. Jimenez, 511 F.3d 62 (3d Cir. 2008) (1) District court did not abuse its discretion in refusing to strike prospective juror for cause in bank fraud conspiracy prosecution, even though one defense attorney believed juror exhibited an aggressive attitude toward her in restroom regarding who was next in line; district court questioned juror extensively about her understanding of burden of proof and presumption of innocence, allowed defense attorneys to conduct voir dire concerning restroom incident, and defendants were granted four extra peremptory strikes than those provided under federal rules; (2) Check kiting scheme involving only one bank violated the bank fraud statute, 18 U.S.C. § 1344, where scheme subjected bank to actual loss by fraudulently moving funds among numerous bank accounts at same bank; (3) Non-hearsay use of evidence as a means of demonstrating a discrepancy does not implicate the Confrontation Clause; (4) Joinder of defendant in bank fraud prosecution, in which defendant was one of nine individuals named in 47-count indictment charging eight separate conspiracies, was harmless, even though defendant was charged in only two counts; there was overwhelming evidence that defendant was involved in residential loan mail fraud conspiracy, two mortgage company employees testified that they each personally witnessed defendant calculate false information and falsify documents when he processed loans, codefendant testified that upon defendant's request he prepared false bank statements for use with loan applications defendant processed, and jury was instructed to consider each defendant separately.

Link to case: http://vls.law.villanova.edu/locator/3d/Jan2008/054098p.pdf

United States v. Schwartz, 511 F.3d 403 (3d Cir. 2008) (1) Government did not breach plea agreement in withdrawing promised downward departure motion for substantial assistance after defendant violated terms of bail and committed further crimes, where government reserved right to withdraw motion if defendant failed to cooperate and conditioned cooperation agreement upon defendant's not committing any additional crimes; (2) Government did not act in bad faith in withdrawing downward departure motion for substantial cooperation based on defendant's consistently positive drug tests and possession of significant amounts of methamphetamine, on basis that it should have known that his cooperation with authorities as required by plea agreement would cause continued association with drug dealers; government did not bear responsibility for defendant's crimes by reason of execution of plea agreement.

Link to case: http://vls.law.villanova.edu/locator/3d/Jan2008/054098p.pdf

United States v. Kellogg, 510 F.3d 188 (3d Cir. 2007) Posing a guilt-assuming hypothetical question to a reputation character witness is improper because it requires the witness to speculate about how information regarding the crime would affect the community’s assessment of the defendant. Posing the same type of question to an opinion character witness may be permissible in some circumstances.

Link to case: http://vls.law.villanova.edu/locator/3d/December2007/051893p.pdf

United States v. Ali, 508 F.3d 136 (3d Cir. 2007) (1) There was no Sixth Amendment concern with applying preponderance of the evidence standard in determining loss amounts for defendants convicted of mail fraud and perjury, since recommended guidelines range sentences for defendants fell far below statutory maximums; (2) District court committed legal error by employing reasonable doubt standard of proof, rather than preponderance of the evidence standard of proof, in calculating defendants' Guidelines sentence for mail and wire fraud offenses, requiring remand.

Link to case: http://vls.law.villanova.edu/locator/3d/November2007/052098p.pdf

United States v. Weaver, 507 F.3d 178 (3d Cir. 2007) A declarant’s statement explaining the current status of the conspiracy is "in furtherance" of the conspiracy, as required to qualify for co-conspirator exception to the hearsay rule, only if the addressee is also a member of the conspiracy.

Link to case: http://vls.law.villanova.edu/locator/3d/November2007/043888p.pdf

United States v. Introcaso, 506 F.3d 260 (3d Cir. 2007) (1) Antique firearm exception to National Firearms Act's general requirement that firearms be registered was ambiguous when applied to defendant's pre-1899 shotgun, which met statutory requirements for firearm, such that court would apply rule of lenity to reverse conviction against defendant for possession of unregistered firearm; term "for" in the phrase "for which ammunition is no longer available" in antique firearm exception could have been read either as "specifically designed for" or "able to be used in," only one of which qualified defendant's shotgun as an antique, and statutory text, history and legislative purpose did not provide clarity as they recognized opposing interests in regulating guns and avoiding placing burdens on gun collectors.; (2) Imposition of 46-month sentence for conviction of possession of unregistered destructive devices was reasonable, where district court performed initial Sentencing Guidelines calculation based on pre-sentencing report, ruled on defendant's downward departure motion, and exercised its discretion in imposing a sentence in the middle of the Sentencing Guidelines' range.

Link to case: http://vls.law.villanova.edu/locator/3d/October2007/054088p.pdf

United States v. Yamba, 506 F.3d 251 (3d Cir. 2007) Under the plain feel doctrine, if, before the officer is able reasonably to eliminate the possibility that the object in question is a weapon, the officer develops probable cause to believe, given his training and experience, that an object is contraband, he may lawfully perform a more intrusive search; if he discovers contraband, the officer may seize it, and it will be admissible against the suspect, but if the officer goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry v. Ohio, 392 U.S. 1 (1968) and its fruits will be suppressed.

Link to case: http://vls.law.villanova.edu/locator/3d/October2007/062581p.pdf

United States v. McKee, 506 F.3d 225 (3d Cir. 2007) Indictment is constructively amended when evidence, arguments, or district court's jury instructions effectively amends indictment by broadening possible bases for conviction from that which appeared in indictment. Defendants convicted of conspiracy to obstruct government function, failure to pay federal employment taxes, and failure to file individual income tax returns demonstrated that indictment was constructively amended by trial court, as required to establish Fifth Amendment violation; in instructing jury about conduct that could establish charged conspiracy, court included failing to report information to defendants' accountant and falsifying books and records.

Link to case: http://vls.law.villanova.edu/locator/3d/October2007/053297p.pdf

United States v. Higgs, 504 F.3d 456 (3d Cir. 2007) Seven day time limit in Fed.R.Crim.P. 35(a), permitting district court to correct sentence within seven days after sentence is pronounced, is jurisdictional and may not be extended.

Link to case: http://vls.law.villanova.edu/locator/3d/October2007/063738p.pdf