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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

Plea Agreement Waiver of Right to File ?Any Appeal? Bars Appeal of Restitution Order

Posted on February 07, 2008
At issue in United States v. Perez, No. 06-2036, is whether an appeal of a restitution order is barred by an appellate waiver.The plea agreement contained a broad waiver of the right "to file any appeal, any collateral attack, or any other writ or motion" as well as a stipulation that loss amount was between $70,000 and $120,000...

Pennsylvania?s Sex Offender Notification Statute must apply equally to in-state and out-of-state sex offenders

Posted on February 07, 2008
In Doe v. Pennsylvania Bd. of Probation, No. 05-4200 (3d Cir. Jan. 23, 2008), a Court of Appeals panel, affirming the decision of District Court Judge Louis Pollak, held in a 2-1 decision that a provision in Pennsylvania?s sex offender notification statute that treated out-of-state sex offenders differently from in-state sex offenders violated the Equal Protection Clause of the Fourteenth Amendment to the U...

Condition of Supervised Release Requiring Reporting of All Contact with Police Violates Due Process

Posted on January 27, 2008
In United States v. Maloney, No. 06-3745 (3d Cir. Jan. 17, 2008), the Court of Appeals held that a condition of supervised release which required the defendant to "notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer" was impermissibly vague as applied in the factual setting of the case...

Court of Appeals Discusses Issues of Striking Juror with "Aggressive Attitude", the Confrontation Clause and Amount of Loss

Posted on January 27, 2008
United States v. Jimenez, No. 05-4098 (3d Cir. Jan. 14, 2008), involved convictions arising out of a multi-defendant, 47-count indictment charging conspiracy to commit mortgage fraud and bank fraud. Five defendants appealed raising numerous challenges to their convictions, after a jury trial, and related sentences...

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Defendant Breached Plea Agreement in Seeking Departure for Overrepresentation and Downward Variance Based on Personal Characteristics

Posted on January 05, 2008
In U.S. v. Williams, No. 05-4153, Dec. 31, 2007, the Circuit held that a defendant who sought departures for over-representation of criminal history and mitigating personal circumstances, and a downward variance based on personal circumstances, breached his plea agreement which stated ?neither party will argue for the imposition of a sentence outside the Guidelines range that results from the agreed total Guidelines offense level...

Third Circuit widens circuit split on guilt-assuming hypotheticals; reaffirms breadth of Rule 404(b) in fraud cases

Posted on December 19, 2007
In affirming a mail fraud conviction, the Third Circuit has held in a 2-1 decision that guilt-assuming hypothetical questions may sometimes be asked of defense character witnesses, widening an existing circuit split on this issue. The Court also approved the admission of a substantial amount of other-bad-acts evidence to prove intent, thereby reaffirming the broad reach of Rule 404(b) in fraud cases...

3d Circuit reverses probationary sentences in fraud case

Posted on December 06, 2007
In United States v. Ali, (3d Cir. Nov. 27, 2007), the Third Circuit reversed probationary sentences in a fraud case, in which defendants Faridah Ali and Lakiha Spicer obtained federal money allocated to a community college to fund an adult education program...

Admissibility of Co-conspirators Statements

Posted on November 21, 2007
In United States v. Weaver, No. 04-3888 (3d Cir. November 7, 2007), the Court of Appeals reversed the district court?s grant of the Defendant Weaver?s motion in limine precluding the Government from introducing a recorded telephone conversation between an alleged co-conspirator and her sister wherein the co-conspirator made statements implicating Weaver in a fraud scheme...

Jury Instructions in Religious Tax Protestors' Case Constructively Amended Indictment

Posted on November 07, 2007
United States v. McKee, No. 05-3297 (Oct. 29, 2007), involved the prosecution of three members of the Reformed Israel of Yaweh ("RIY") religious sect, which opposes the payment of taxes to support war. Two of the defendants were owners of a small carpentry and home renovation business, and the third was the wife of one of the defendants...

Rule of Lenity Applied to Definition of "Antique Firearm" in Unregistered Shotgun Case

Posted on October 30, 2007
In United States v. Introcaso, __ F.3d __, 2007 WL 3104382 (filed October 25, 2007), the Court reversed the defendant?s conviction for possessing an unregistered firearm ? a 19th-century shotgun that had been hanging in his living room, holding that the definition of "antique firearm" under the statute, 26 U...

Adverse Fourth Amendment Holdings -- Frisk Justified, "Plain Feel Doctrine" Applied

Posted on October 30, 2007
In United States v. Yamba, __ F.3d __, 2007 WL 3054387 (filed October 22, 2007), the Court issued two Fourth Amendment holdings adverse to the defendant. Yamba was tried and convicted for wire fraud, based on evidence including several pieces of paper with what appeared to be credit card numbers written on them...

Denial of Rehearing En Banc in United States v. Ricks

Posted on October 30, 2007
The Third Circuit recently denied the petition for rehearing en banc in United States v. Marc Ricks, No. 05-4833 (denial filed October 22, 2007), the recent case in which the Court vacated the sentences of two brothers because the district court, in setting their sentences, disagreed with the advisory Sentencing Guidelines regarding the crack/powder differential...

Rule 35(a)?s Time Limits on Correcting Sentencing Error Held to Be Jurisdictional

Posted on October 05, 2007
The defendant in United States v. Higgs, No. 06-3738 (filed October 4, 2007), was sentenced January 5, 2005, one week before the Supreme Court decided United States v. Booker,543 U.S. 220 (2005) , on June 12, 2005. His judgment was not entered until June 14, 2005...

Police Failed To Scrupulously Honor Defendant's Fifth Amendment Right/Defendant's Silence Inadmissible As Adoptive Admission

Posted on October 02, 2007
In United States v. Lafferty, No. 06-1901 (3d Cir. September 28, 2007), the Third Circuit reversed the district court?s order denying Amy Lafferty?s suppression motion, which challenged statements that she and an alleged confederate made during a custodial interrogation...

District Court's Failure to Provide Notice of Above Advisory Guideline Sentence Does Not Constitute Due Process Violation

Posted on September 28, 2007
In United States v. Ausburn, No. 06-2250 (3d Cir. September 10, 2007), the Third Circuit held that a district court?s failure to provide notice of its intention to impose a sentence above the advisory guideline range (in this case more than double the high end of the guideline range) does not violate due process...

United States v. Kikumura is Overruled

Posted on September 28, 2007
In United States v. Fisher, No. 06-1795 (3d Cir. September 10, 2007), a split panel of the Court of Appeals reversed its prior decision in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), which held that the facts supporting a massive upward departure must be demonstrated by clear and convincing evidence rather than the lesser preponderance of the evidence standard applicable to the majority of sentencing enhancements...

Pennsylvania Conviction for Simple Assault Does Not Constitute a Crime of Violence

Posted on September 28, 2007
In United States v. Otero, No. 05-3739 (3d Cir. September 12, 2007), the Court of Appeals for the Third held that a Pennsylvania conviction for simple assault [18 Pa. Cons.Stat.Ann. � 2701(a)] does not constitute a crime of violence for purposes of the 16-level enhancement contained in U...

Application of Enhancement for "Pattern of Activity" Affirmed, Finding Prior Conduct Neither Too Remote in Time nor Too Different in Kind

Posted on September 25, 2007
In United States v. Olfano, No. 06-2988 (3d Cir. Sept. 20, 2007), the panel unanimously affirmed a 188-month sentence on a conviction for receipt of child pornography by computer, rejecting Olfano?s arguments that the sentence was unreasonable because the District Court improperly included in its sentencing guideline calculation a five-level enhancement for pattern-of-activity, under U...

Confessions Obtained During Delay in Presentment Admissible if Voluntary under Section 3501(c) / Court May Not Delegate Restitution Payment

Posted on September 09, 2007
In U.S. v. Corley, (No. 04-4716) (Aug. 31, 2007), the Third Circuit held that under �3501(c), confessions taken outside of the six-hour ?safe harbor? window may only be excluded if involuntary. Corley was arrested at approximately 8:00 in the morning...

Kemp Convictions for Honest Services Fraud Upheld - Court Did Not Abuse Discretion in Dismissing Juror

Posted on September 06, 2007
In US v. Kemp, (Nos. 05-3477/05-3561/05-4623/05-4717/05-4846) (August 27, 2007), the Third Circuit affirmed the convictions of all defendants, finding (1) sufficient evidence to support conviction for honest services fraud; (2) jury instructions on honest services fraud, bribery and aiding and abetting were proper; (3) a variance between conspiracy charge in the indictment and government?s case at trail did not substantially prejudice defendants; (4) other act evidence and co-conspirator statements were properly admitted; and (5) district court acted within its discretion in dismissing juror...

Downward Variance Reversed, Held Procedurally and Substantively Unreasonable

Posted on September 04, 2007
In United States v. Goff, No. 05-5524 (3d Cir. Aug. 30, 2007), the panel unanimously held both procedurally and substantively unreasonable a four-month below-guideline sentence in a possession of child pornography case.As part of a wider investigation into an international child pornography enterprise, Goff?s home was searched and two computer hard drives were seized...

?Downward Departure? from Guideline Sentence must fall Below Guideline Range

Posted on September 04, 2007
In United States v. Floyd, No. 06-1513, (3d Cir. Aug. 27, 2007), the Third Circuit held that a ?departure? from a Guideline sentence means a sentence below the bottom of the Guideline range rather than below a predetermined sentence within that range...

Court reverses below-guidelines sentence as substantively unreasonable

Posted on August 28, 2007
In its 2-1 decision in United States v. Tomko, Case No. 05-4997, the Third Circuit vacated a probation-only sentence for tax evasion as substantively unreasonable. Judge Fisher wrote for the majority. Judge Smith wrote a forceful dissent.Facts: Tomko, a construction company owner, built a large, well-appointed new home for himself...

Third Circuit affirms convictions and sentence in bank fraud/money laundering conspiracy

Posted on August 28, 2007
On August 20, 2007, the Third Circuit ordered published its July 31, 2007, opinion in United States v. Greenridge, Case No. 05-4887, which concerned a bank fraud and money laundering conspiracy. The conspiracy involved stealing corporate checks, falsifying the payee names thereon, and depositing the checks in business and personal accounts to make the funds appear legitimate...

Restitution Requirements Under Section 3664(f)(2) Are Satisfied Without Express Findings

Posted on August 21, 2007
In United States v. Lessner, the 3C addressed and rejected a number of sentencing challenges and held, inter alia, that sentencing courts need not make explicit findings on the record in support of a restitution order, so long as the record evidences the court?s consideration of the statutory factors...

?Guidelines-centric? approach ?reasonable and effective? where sentence was reduced by downward departure

Posted on August 08, 2007
In United States v. Hankerson, No. 06-3291 (3d Cir. 7/31/07), the Third Circuit rejected as meritless appellant?s reasonableness and ineffective assistance of counsel challenges to his 121-month sentence. That sentence reflected a downward departure based on overstatement of criminal history from the career offender-enhanced advisory guideline range of 188 to 235 months...

100:1 Crack/powder ratio: Cannot replace ratio, but can vary from GL based on case-specific reasons

Posted on July 23, 2007
In US v. Ricks, Nos. 05-4832, 4833 (3d Cir. 7/20/07), the Circuit followed its prior decision in US v. Gunter, 462 F.3d 237 (3d Cir. 2006), in ruling that although a district court can consider the 100:1 crack/powder differential in the guidelines and find the differential is "too vast," it may not categorically reject the ratio and substitute its own...

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