Criminal Law

Pro se notice of appeal liberally construed

Posted on February 14, 2011
In US v. Aswa Mills, No. 10-1542 (Feb. 9, 2011) (click here), the Circuit ruled that a notice of appeal, especially if pro se, should be construed liberally and should be deemed adequate as long as it is "reasonably clear" under all the circumstances which judgment the party seeks to appeal...

Court Finds File Names are in Plain View; Looks at Consent, Inevitable Discovery and Independent Source Doctrines

Posted on February 08, 2011
In a lengthy c.p. opinion in U.S. v. Stabile, --- F.3d ----, 2011 WL 294036 (Feb. 1, 2011), the Third Circuit found the following: (1) Consent to a warrantless search by cohabitant who had common authority over the property, including seizure of hard drives in common area which were not password protected, was valid; (2) the search of entire contents of the hard drives was reasonable and was not required to be done on-site; (3) the subsequent revocation of cohabitant's consent by defendant was ineffective; (4) a three-month delay between seizure of hard drives and obtaining search warrant was not unreasonable given that property was turned over by consent, defendant did not request return of the property, and government's rationale for the delay was reasonable; (5) file names, which appeared when a folder on defendant?s hard drive was highlighted, indicating child pornography were in "plain view" during search for financial fraud evidence; and(6) although the plain view doctrine may not apply to the contents of those files, the independent source and inevitable discovery doctrines applied...

Clear-Error Standard of Review Applies to a District Court?s Determination of Recklessness Under Franks

Posted on February 01, 2011
In United States v. Brown, No. 09-3643, the Third Circuit affirmed the District Court?s opinion granting the defendant?s motion to suppress a sample of his DNA pursuant to Franks v. Delaware, 438 U.S. 154 (1978).Two men wearing masks from the movie ?Scream? robbed a bank in Western Pennsylvania at gunpoint and fled to a nearby school district building, where they stole a school district van...

Collective Knowledge of Police Sufficient to Support Reasonable Suspicion for Terry Stop

Posted on January 13, 2011
In United States v. Whitfield, No. 09-3031 (3d Cir., filed December 6, 2010, published January 6, 2011), four Camden police officers in three marked police vehicles were patrolling an area of the city known for violence and drug activity involving crack cocaine...

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Circuit Requires Relevant Conduct to Cross-Reference

Posted on January 04, 2011
Kulick pled guilty to unlawful possession of a firearm. In exchange, the government dismissed other charges, including an extortion charge, dating from more than a year earlier. Nonetheless, the district court cross-referenced to the extortion guideline at sentencing, resulting in application of a guideline four levels higher than would have applied for the unlawful possession of a firearm...

A SENTENCE TO STATUTORY MAX 30 YEARS - MORE THAN DOUBLE THE GUIDELINE RANGE AND DESPITE A 5K1.1 MOTION - AFFIRMED

Posted on December 30, 2010
In United States v. Larkin, No. 09-2619 (M.D.PA 12/10/10), the Court of Appeals affirmed Ms. Larkin?s sentence to the statutory maximum of 360 months imprisonment followed by a life term of supervised release.Ms. Larkin traded sexually-explicit photographs/videos of her minor children, B...

Case Remanded for Resentencing Due to Imposition of ?General Sentence?

Posted on November 30, 2010
In United States v. Ward, No. 09-4271 (3d. Cir. October 27, 2010), the Third Circuit vacated a "general sentence"imposed by a district judge and remanded for resentencing in order to specify sentences on all counts.Ward pled guilty to two counts of inducing a minor to engage in sexually explicit conduct in order to produce a visual depiction, two counts of shipping such depictions, and one count of making false statements to the U...

CP Case: No Outrageous Conduct in Use of Fugitive CI; 1080 Month Sentence Reasonable

Posted on October 21, 2010
U.S. v. Christie, 2010 WL 4026817 (Sep. 15, 2010) (published Oct. 15, 2010).During an unrelated fraud investigation, agents were contacted by the attorney of Lochmiller - fugitive, and administrator of the NAMGLA (North American Man Girl Love Association) website...

Interior Dog Sniff of Open Car Not Illegal Warrantless Search

Posted on October 21, 2010
In United States v. Pierce, No. 09-3865 (3d Cir., October 1, 2010), the defendant was stopped by a Delaware State trooper for speeding. According to the trooper, the defendant's responses to his questions led the trooper to remove the defendant from the vehicle...

PWID is Lesser-Included Offense of PWID Within 1000 Feet of School

Posted on October 21, 2010
In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession...

Circuit Applies Skilling, Reverses Honest Services Conviction

Posted on October 05, 2010
In United States v. Riley, 2010 WL 3584066 (3d. Cir. Sept. 16, 2010), the Court held that the district court?s instruction to the jury that honest services fraud did not require scheme to defraud another to obtain money or property, and could instead be based on violation of duty of honest, faithful, and disinterested service, was plainly erroneous...

Circuit Affirms Inventory Search into Closed Containers

Posted on October 05, 2010
In United States v. Mundy, 2010 WL 3547435 (3d. Cir. Sept. 14, 2010), the court held that (1) the city police department's vehicle stop and impoundment guidelines provided sufficiently standardized criteria regulating scope of permissible inventory search, including searches of closed containers; (2) the officer's reliance on the guidelines was not a pretext for an investigatory search of vehicle...

Third Circuit holds that the Government may need a warrant to compel a cell phone provider to produce historical cellular tower data that would disclo

Posted on October 01, 2010
In re Application of the U.S., No. 08-4227 (3d Cir. Sept. 7, 2010), involves whether the Government can covertly obtain, without a showing of probable cause, historical cellular tower data (also known as cell site location information, or CSLI) from a cellular phone service provider, under the Stored Communications Act, 18 U...

Third Circuit holds that in criminal tax violations, willful blindness satisfies the legal knowledge component of the willfulness element.

Posted on October 01, 2010
United States v. Stadtmauer, No. 09-1575 (3d Cir. Sept. 9, 2010), involves several issues challenging the conviction, after a two-month trial, of Richard Stadtmauer, an executive in a promiment New Jersey real estate development firm. The Government charged that he had been involved in filing several fraudulent tax returns that claimed several categories of expenditures (such as charitable contributions) as fully deductible business expenses...

Third Circuit holds Fed. R. App. P. 4(b) not jurisdictional, and explicates the rule on questioning a defendant at trial on post-arrest silence.

Posted on September 29, 2010
In Gov?t of V.I. v. Martinez, No. 08-2694 (3d. Cir. Sept. 8, 2010) the Third Circuit clarified two rules, on procedural, one substantive.The defendant was convicted in the Territorial Court of the Virgin Islands for kidnapping for rape. The Appellate Division of the District Court of the Virgin Islands affirmed...

In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

Posted on September 29, 2010
In Gov?t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant?s possession was a legal necessity.Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm...

Third Circuit Denies Victim Mandamus: district court did not abuse discretion in denying motion to allow victim's attorney to appear at sentencing.

Posted on September 24, 2010
Professor Berman's post on this interesting Crime Victims' Rights Act case, including a link to the Third Circuit's opinion, is available at http://sentencing.typepad.com/, in the blogging from Thursday, September 23, 2010. Short version: no abuse of discretion in denying motion to allow victim's attorney to appear at sentencing because district court recognized victim's right to be heard, and government was advocating for victim (e...

New Impeachment Evidence Can Serve as Basis for New Trial When Evidence Suggests Defendant was Wrongly Convicted

Posted on September 08, 2010
In United States v. Quiles, Nos. 09-1667 and 09-1686 (August 17, 2010) , the Third Circuit affirmed the district court?s denial of a new trial based on a government witness? subsequent indictment on sexual assault charges finding that this new evidence was merely impeaching evidence on an unrelated matter that did not go to the heart of the instant case...

Sex Offender Requirement to Admit Guilt as Condition of Parole Does Not Violate First Amendment, Due Process or Ex Post Facto

Posted on September 08, 2010
In Newman v. Beard, No. 08-2652 (August 16, 2010), the Third Circuit affirmed the district court?s dismissal of petitioner?s amended complaint which asserted that the Department of Corrections? (DOC) requirement that sex offenders admit guilt as a prerequisite to entry into a treatment program, the completion of which is required to be eligible for parole under 42 Pa...

Rehabilitative Needs Can Be Considered to Determine Whether to Revoke Supervised Release and the Duration of Imprisonment Upon Revocation

Posted on September 08, 2010
In United States v. Doe, No. 09-2615 (August 16, 2010), the Third Court affirmed revocation of Doe?s supervised release and imposition of a 24 month term of imprisonment followed by an additional 12 months supervised release on the basis that Congress intended, in 18 U...

Search Incident to Execution of Warrant Upheld

Posted on August 27, 2010
U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes...

In first treatment of Gant, Third Circuit applies limited search-incident-to-arrest rule beyond vehicle searches

Posted on August 17, 2010
In its first treatment of Arizona v. Gant, 129 S. Ct. 1710 (2009), which overruled the Belton rule allowing police to search a suspect's car incident to his arrest even if the suspect no longer has access to the car at the time of the search, the Third Circuit has held that Gant applies to all searches incident to arrest, not just to car searches...

Fractured Third Circuit panel clarifies government waiver rules and previews looming Fourth Amendment issue

Posted on August 10, 2010
In a rare, three-opinion panel decision, the Third Circuit has weighed in on -- but, for now, has not resolved -- an important issue concerning the Fourth Amendment exclusionary rule: when a suspect is unlawfully seized, but then breaks away and discards evidence while being chased by police, should the evidence be suppressed? The case is United States v...

"Career Offender" Designation Not Always Fatal to Sentence Reduction Motion Pursuant to Crack Cocaine Guideline Amendments

Posted on July 29, 2010
After an extended engagement with some very fine print, the Court holds in United States v. Glenn Flemming, No. 09-2726 (July 27, 2010), that a notable group of defendants are eligible for sentence reductions pursuant to the Sentencing Commission?s retroactive lowering of crack cocaine offense levels...

Upholding § 922(k) Ban on Unmarked Firearms, Court Charts Course for Second Amendment Challenges

Posted on July 29, 2010
In a ruling upholding 18 U.S.C. 922(k), which bars possession of firearms with obliterated serial numbers, the Court sets forth an extensive gloss on the proper approach to Second Amendment challenges under the Supreme Court?s path-breaking decision in District of Columbia v...

Court Construes Meaning of Federal ?Official? for Purposes of Threat Statute; Rejects Self-Representation Challenge

Posted on July 29, 2010
In United States v. Michael Bankoff, Nos. 08-3275 & 08-3688 (July 27, 2010), the Court holds that the federal statute criminalizing certain threats of federal ?officials? extends to both ?officers and employees.? Separately, the Court determines that there was no abuse of discretion in a district court ruling temporarily barring the defendant from representing himself...

Defendant's Repeated Presence at Drug Transactions Coupled With Phone Calls Sufficient to Support Aiding and Abetting Conviction

Posted on July 12, 2010
In United States v. Mercado, No. 09-2681 (3d Cir., July 7, 2010), the three defendants were indicted for aiding and abetting the possession of more than 100 grams of heroin with the intent to distribute within 1000 feet of a school as well as the substantive counts...

Conviction vacated due to prosecutorial misconduct

Posted on June 29, 2010
In United States v. Liburd, No. 09-3156 (D.VI 06/09/10), the Court of Appeals vacated Mr. Liburd?s conviction in light of repeated prosecutorial misconduct.Mr. Liburd was in the St. Thomas airport intending to catch a flight to Atlanta. En route to his plane he passed through TSA security and one of the officers noticed on the scanner an image of two large organic masses located within his carry-on bag...

Conviction for Possession of a Weapon in a Prison affirmed

Posted on June 29, 2010
In United States v. Holmes, No. 09-2846 (W.D.PA 06/07/10), the Court of Appeals affirmed Mr. Holmes conviction for possession of a weapon in a prison.Holmes was a prisoner at FCI - Loretto who was searched by prison guards and found to be in possession of a utility-knife blade...

Third Circuit Upholds Free Speech Rights of Anti-abortion Protestor Arrested for Demonstrating in Front of Liberty Bell Center.

Posted on June 25, 2010
In United States v. Michael Marcavage , No. 09-3573 (3d Cir. June 16, 2010), the defendant and some 20 others demonstrated in an anti-abortion protest ? with graphic signs and use of a bullhorn ? in front of the entrance to Philadelphia?s Liberty Bell Center in Independence National Historical Park, where a long line of tourists were waiting to enter...

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