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Criminal Law

Third Circuit Blog

Commentary and summaries of cases before the Philadelphia-based 3rd U.S. Circuit Court of Appeals.
By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper

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Last Entry: June 28, 2019 at 11:33:00

Court of Appeals Reverses District Court's Grant of Suppression Motion

Posted on October 15, 2008
[This case summarized by Leo Latella.]In United States v. Torres, 534 F.3d 207 (3d Cir. 2008) , the Court of Appeals reversed the district court?s grant of defendant?s suppression motion and held that police officers had sufficient reasonable articulable suspicion to initiate a traffic stop of a vehicle described by an unidentified cab driver who called 911 and stated that he saw the driver of the vehicle brandish a handgun at a gas station...

United States v. Goldberg, 538 F.3d 280 (3d Cir. 2008).

Posted on October 15, 2008
The defendant in Goldberg ran a business that sold veterinary grade prescription drugs to horse owners without proof of a prescription. The government charged him with, inter alia, possessing the controlled substance Stanozolol with the intent to distribute, and various misbranding charges...

Sufficiency/Knowledge of Conspiracy's Object and Brady/Evidence Possessed by Foreign Sovereign

Posted on October 14, 2008
[This case summarized by Felicia Sarner.]US v. Reyeros, 537 F.3d 270 (3d Cir. July 31, 2008). Reyeros, a former customs inspector, was convicted of conspiring to transport cocaine into the United States. The government's case relied in part on a cooperating witness who was initially detained in Columbia and opposed extradition...

Appellate Waiver of Direct/Collateral Review

Posted on October 14, 2008
[This case summarized by Felicia Sarner.]US v. Mabry, 536 F.3d 231 (3d Cir. July 28, 2008). Mabry's guilty plea agreement, in which he pled guilty to the drug charge in exchange for dismissal of the remaining charges, included an appellate waiver of direct and collateral review...

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Ineffective Assistance / Jury Trial Waiver

Posted on October 14, 2008
[This case summarized by Felicia Sarner.]US v. Lilly, 536 F.3d 190 (3d Cir. July 28, 2008). Since the evidence in this drug case relating to the motion to suppress was virtually identical to the trial evidence, the parties agreed to proceed with a non-jury trial and the district judge heard the pre-trial hearing and bench trial together...

Failure to raise a suppression argument (not just a motion) before the district court equals waiver.

Posted on October 14, 2008
In United States v. Rose, 538 F.3d 175 (3d Cir. 2008), the Third Circuit held that failure to raise specific suppression arguments before the district court amounts to waiver and not just forfeiture. The defendant, who proceeded pro se at trial, filed a motion to suppress certain evidence, putting forth four arguments in support of his claim...

Third Circuit Affirms One Variance to Probation; Reverses Another

Posted on September 23, 2008
Sentence Affirmed: In United States v. Howe, No. 07-1404 (3d Cir. Sept. 18, 2008), defendant was convicted of two counts of wire fraud. At sentencing, the district court granted a variance from the recommended Sentencing Guidelines range of 18 to 24 months? imprisonment and sentenced him to two years? probation (including three months? home confinement)...

District Court's errors in admitting hearsay statement as present sense impression and defendant?s un-Mirandized admissions were not harmless.

Posted on September 23, 2008
Defendant Artega Green was convicted by a jury of one count of distribution of crack cocaine, in violation of 21 U.S.C. � 841. The evidence offered by the Government at trial consisted of: (1) the testimony of two DEA agents; (2) an audio recording in which the CI called a cell phone number "associated with" Green and ordered 3 ounces of crack; and (3) a video in which the CI allegedly engaged in a drug transaction with Green...

THIRD CIRCUIT FINDS 18 U.S.C. � 48 UNCONSTITUTIONAL.

Posted on August 21, 2008
Robert J. Stevens was convicted of violating 18 U.S.C. � 48, a statute which prohibited the creation, possession or sale of depictions of animal cruelty with the intent to place the depiction in interstate commerce for profit. In United States v. Stevens, No...

Court Rejects Habeas Petition Challenging Parole Commission?s Procedures

Posted on July 23, 2008
[This case summarized by Ahmed Soliman, legal intern, Eastern District of Pennsylvania.]In Christopher Furnari v. U.S. Parole Commission, No. 07-2853 (3rd Cir. July 9, 2008), the Third Circuit Court of Appeals considered, and ultimately affirmed, an appeal of the lower court?s rejection of a habeas corpus petition for Christopher Furnari, a consigleire of the Lucchese crime family who complained that, in denying him parole five separate times, the Parole Commission mis-applied the law...

Immigration judge abused discretion when motion for continuance was denied as a result of delay caused by Department of Homeland Security

Posted on July 18, 2008
[This case summarized by Ahmed Soliman, legal intern, Federal & Community Defender for the Eastern District of Pennsylvania.]In United States v. Hashmi, No. 06-3934, (3rd Cir. July 7, 2008), the court addressed whether an immigration judge abused his discretion after denying a continuance, agreed to by the government, simply because the case was pending for a period of time longer than the 18 months suggested by the "case completion goals" set by the Department of Justice, despite the fact that the Department of Homeland Security was the cause of the case?s delay, and not the defendant...

Government's Use of Defendant's Former Lawyer as Confidential Informant Not "Outrageous"

Posted on June 26, 2008
In United States v. Hoffecker, No. 06-3190, (3d Cir. June 16, 2008), the Third Circuit issued a 103- page opinion primarily to address two issues: Did the District Court err in admitting the testimony of defendant?s former attorney and (2) was the prosecution time-barred?Hoffecker and a co-defendant set up an investment company located in the Bahamas purportedly to sell commodities...

Unpaid Taxes Found to Be ?Proceeds? of Mail Fraud

Posted on June 26, 2008
In United States v. Yusef, No. 07-3308, (3d Cir. June 17, 2008), the Third Circuit considered a narrow issue: Whether unpaid taxes, which were unlawfully disguised and retained by means of the filing of false tax returns through the U.S. mail, are "proceeds" of mail fraud for purposes of sufficiently stating a money laundering offense under the federal, international money laundering statute, 18 U...

Third Circuit Examines United States v. Gunter In Light of Supeme Court's Sentencing Jurisprudence

Posted on June 16, 2008
In United States v. Gunter, No. 07-1291, (3d Cir. June 9, 2008), the Third Circuit discussed the impact of the Supreme Court's recent sentencing cases on its precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which set forth the following three-step process that district courts must use for sentencing: (1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before United States v...

Third Circuit clarifies appellate procedure and substantive sentencing rules (including an issue of first impression) in favor of defendants

Posted on June 09, 2008
In United States v. Miller, No. 06-5187 (3d Cir. June 2, 2008), Miller had been found guilty at trial of receiving and possessing child pornography, in violation of 18 U.S.C. �� 2252A(a)(2) & 2252A(a)(5)(B), respectively. The District Court entered guilty verdicts on both counts, and sentenced Miller to concurrent 46-month prison terms...

Customs and Border Protection Officer's Haboring Conviction Reversed While Bribery Conviction Upheld

Posted on June 09, 2008
In United States v. Ozcelik, No. 06-4245 (3d Cir. May 27, 2008), the Court of Appeals decided, as a matter of first impression, what constitutes "shielding, harboring, and concealing an alien within the meaning of 8 U.S.C. � 1324. The defendant, Ozcelik, a naturalized US citizen originally from Turkey, was a Customs and Border Protection Officer in the Department of Homeland Security...

Possession charge effectively covered ?mere presence? issue; Prosecutor asking why officers would risk careers was not improper vouching.

Posted on May 21, 2008
U.S. v. Weatherly, No. 07-1019, 2008 WL 850005, (3d Cir., Mar.31, 2008)(published May 13, 2008). Weatherly was charged with being a felon in possession of a firearm. It was alleged that the gun was found on Weatherly as he was being arrested on another matter...

"Related" within the meaning of U.S.S.G. �4A1.2(a)(2) (pre-Nov. 1, 2007) requires either formal consolidation order or close factual relationship

Posted on May 12, 2008
In United States v. Wood, No. 06-3812 (3d Cir. May 1, 2008), the Third Circuit considered whether the defendant's prior burglary and conspiracy convictions were "related" within the meaning of U.S.S.G. �4A1.2(a)(2) (pre-Nov. 1 2007 version) where the defendant was sentenced for those offenses on the same day before the same judge...

3d Circuit affirms life sentence and holds that � 848(b) sets forth sentencing factors, not a separate crime.

Posted on May 07, 2008
In United States v. Tidwell, No. 02-3139 (3d Cir. Mar. 31, 2008), the Third Circuit held that Congress intended 21 U.S.C. � 848(b) as a sentencing enhancement, not as a separate crime, and thus the life sentence imposed on Tidwell under � 848(b) was constitutional where the factual basis was not charged in the indictment...

In the absence of standardized impoundment procedure, officer may reasonably impound vehicle

Posted on April 10, 2008
United States v. Smith, No. 06-3112 (3d Cir. April 9, 2008)Lancaster police arrested the driver and passenger of a car stopped in an area "in which parked vehicles were subject to being damaged, vandalized, or stolen." Police could not identify the owner of the vehicle, although they were able to determine that it did not belong to either occupant...

Third Circuit lacks jurisdiction to hear defendant's appeal that speedy trial motion should've been dismissed with prejudice.

Posted on April 10, 2008
United States v. Martin, No. 07-1916 (3d Cir. April 7, 2008)Before the district court, the defendant filed a motion to dismiss his indictment, alleging a violation of the Speedy Trial Act. The district court granted the motion, but dismissed the indictment without prejudice...

?Identity theft? sentencing enhancement does not apply to altering addresses on clients? financial statements

Posted on April 01, 2008
In United States v. Hawes, No. 06-3334 (3d Cir. Mar. 27, 2008), the Court of Appeals held that the district court erroneously applied a two-level "identity theft" enhancement under � 2B1.1(b)(9)(C)(i) [now � 2B1.1(b)(10)(C)(i)] because the defendant?s conduct did not qualify for the enhancement...

Government?s failure to establish element of offense results in reversal.

Posted on March 12, 2008
In United States v, Ambrose Daniel, No. 07-2413 (3rd Cir. March 6, 2008), the defendant Ambrose Daniel was convicted of unlawful possession of ammunition, in violation of Virgin Islands? law. Daniel had initially been charged in an eight count indictment, including several federal offenses, but was only convicted of the ammunition offense...

Juvenile adjudication of "discontinuance" not a "sentence" under 4A1.2. Improper Guidelines calculation not harmless error.

Posted on March 04, 2008
United States v. Langford, No. 06-2774 (3d Cir. February 22, 2008) - Langford entered a guilty plea to bank robbery, armed bank robbery, and carrying and brandishing a firearm during a crime of violence. At sentencing, defense counsel argued that a prior juvenile adjudication that was "discontinued" should not be counted in Langford?s criminal history category...

Third Circuit reverses for insufficiency in gun possession case - no evidence of constructive possession or aiding and abetting

Posted on March 03, 2008
United States v. Cunningham, No. 06-3899 (3d Cir. February 21, 2008) - After a jury trial, Cunningham was convicted of three counts - 1) distribution of crack cocaine, 2) possession with intent to distribute more than 5 grams of crack cocaine and aiding abetting, and 3) a possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting...

Armed bank robbery sentence remanded for application of incorrect enhancement in original sentence and failure to justify alternative sentence.

Posted on February 29, 2008
United States v. Smalley, No. 06-4552 (3d Cir. Feb.29, 2008). At sentencing in this armed bank robbery case, the government and defense argued that the defendant should receive a three-level enhancement for "brandishing or possessing" a weapon under U...

District court is powerless to grant the third point absent a � 3E1.1(b) motion by the Government, even where bad faith alleged.

Posted on February 27, 2008
In United States v. Drennon, No. 06-3399 (E.D.Pa 02/20/08), Drennon was charged with bank robbery and, prior to trial, challenged the constitutionality of an identification made by one of the bank tellers. After the suppression hearing, the motion was denied...

Third Circuit addresses applicability of new crack guidelines to cases on direct appeal

Posted on February 25, 2008
In United States v. Wise, No. 06-4926, and United States v. Brown, No. 06-4928, (3d Cir. Feb. 12, 2008), a Third Circuit panel addressed for the first time the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court?s decision in Kimbrough...

Gov did not breach plea agreement by withdrawing 5K motion

Posted on February 24, 2008
In US v. Schwartz, No. 05-4978 (Jan 10, 1008), the 3rd Circuit rejected Schwartz's claim that the government breached its plea agreement and acted in bad faith when it withdrew its previously filed motion for downward departure under USSG 5K1.1.Schwartz pleaded guilty to conspiracy to distribute drugs and agreed to cooperate with the government pursuant to a plea agreement in which the government agreed to file a downward departure motion under 5K1...

Government Did Not Breach Agreement to Make No Recommendation as to Sentence in "Package Deal" Plea Bargain

Posted on February 20, 2008
United States v. Neal Hall, No. 07-2373, (3d Cir. February 8, 2008), involves a "package deal plea bargain" in which the government accepted defendant husband?s guilty plea to willfully failing to file tax returns on the condition that co-defendant wife also plead guilty...

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