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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

Post Frequency: 0.6/day

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

U.S. Supreme Court Severely Restricts Scope of Sentence Reduction Proceedings under 18 U.S.C. § 3582(c)(2).

Posted on June 25, 2010
As suggested in this Blog?s May 2009 entry, the Third Circuit?s decision in United States v. Dillon, 572 F.3d 146 (3d Cir. 2009) has, indeed, effectively "ended crack litigation", as the Supreme Court, by a 7-1 vote, affirmed the Third Circuit in Dillon v...

"Clearly Established Federal Law" is Determined as of the Date of the Relevant State-Court Decision Subject to Habeas Review

Posted on June 02, 2010
Greene v. Palakovich, No. 07-2163 (3d Cir. May 28, 2010). A split panel of the Third Circuit held that for purposes of the standard of review for a federal habeas claim set forth in AEDPA, 28 U.S.C. §2254(d)(1), "clearly established Federal law" should be determined as of the date of the relevant state-court decision subject to habeas review...

Drug Trafficking Conviciton Affirmed - No Problems with Time Frame of Conspiracy, Sufficiency of Evidence & Chain of Custody

Posted on June 02, 2010
United States v. Rawlins, No. 08-2948 (3d Cir. May 26, 2010). The Third Circuit affirmed the defendants drug trafficking conviction and rejected his arguments that:1) the indictment was invalid because it failed to allege the proper time frame for the conspiracy; 2) the evidence was insufficient to sustain the conviction, and; 3) there were gaps in the chain of custody of the evidence...

Child Pornography / Warrants / Sufficiency / Evidence of Age

Posted on May 21, 2010
U.S. v. Vosburgh, 2010 WL 1542340, April 20, 2010. Vosburgh appealed his conviction following a jury trial of possession and attempted possession of child pornography (18 U.S.C. § 2252). The investigation of Vosburgh began when an IP address linked to his account attempted to download child pornography on the internet...

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Defendant Liable for Co-conspirator?s Loss, Applying Victim Enhancement to One Conspirator Did Not Create Unwarranted Disparity

Posted on May 17, 2010
U.S. v. Robinson, 2010 WL 1610582, (April 22, 2010). Robinson pled guilty to conspiring to steal and convert United States Treasury checks in violation of 18 U.S.C. §§ 641 and 371, arising out of a scheme led by an individual named Jeffress, who provided "checkcashers"-Robinson and other individuals-with stolen Treasury checks and fake id, and drove them to checkcashing stores...

Sentence Below Career Offender Guideline Found Procedurally Unreasonable

Posted on May 17, 2010
United States v. Merced, 2010 WL 1542263, April 20, 2010. Merced pleaded guilty to a drug possession charge, his career offender guideline range was 188 - 235 months. At sentencing, the district court pointed to several factors in support of a below-guideline range, including the "street level" nature of Merced's previous crimes, his own possible drug problem, his troubled childhood, his strong family relationships, and the fact that his longest prior prison term was, at most, four years...

Court Finds Inadvertent Out-of-jurisdiction Arrest Reasonable; Declines to Address Sentencing Entrapment and Manipulation Doctrines

Posted on April 23, 2010
In U.S. v. Sed, --- F.3d ----, 2010 WL 1292152 (Apr. 6, 2010), defendant, convicted of conspiracy to distribute and PWID, challenged (1) the validity of his arrest in Ohio by Pennsylvania state police and (2) the denial of a sentencing reduction based on sentencing entrapment and/or manipulation...

Securities Fraud / Fiduciary Obligations / Omission Liability / Materiality Expert

Posted on April 23, 2010
In U.S. v. Schiff, --- F.3d ----, 2010 WL 1338141, April 07, 2010, defendants were "high-ranking corporate executives" at a pharmaceutical company, indicted for orchestrating a securities fraud scheme in violation of 15 U.S.C. § 78j(b) and SEC Rule 10b-5...

"Seemingly innocent" activity sufficient to support probable cause for search warrant in light of initial tip and subsequent police surveillance

Posted on March 25, 2010
In United States v. Stearn, 08-3230 (3d Cir. March 9, 2010), the Third Circuit reversed a district court's suppression order after concluding that the searches conducted were supported by probable cause. Based on a tip from a confidential informant that defendants Michael and Joseph Doebley were selling cocaine powder supplied to them by Edward Stearn, police officers began surveillance of the defendants' homes and vehicles...

No per se rule that a prior conviciton under 4B1.1 must be established by a "certified" record

Posted on March 22, 2010
In United States v. Howard, No. 08-4748 (E.D.PA 03/19/10), the Court of Appeals affirmed the district court?s reference to ?uncertified documents? in its determination that Mr. Howard was a career offender under U.S.S.G. § 4B1.1.Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school...

Sentence vacated and remanded where the district court did not properly apply U.S.S.G. 2C1.1(b)(2) to determine the amount of a benefit received

Posted on March 22, 2010
In United States v. Lianidis, No. 09-1165 (D.NJ 03/19/10), the Court of Appeals vacated the sentence and remanded for re-sentencing where the district court did not properly apply section 2C1.1(b)(2) which determines the amount of a ?benefit received? for sentencing guideline purposes...

Owner of Sporting Goods Store Must Forfeit Firearms Following Conviction for Being a Drug User in Possession of Firearms

Posted on March 18, 2010
United States v. Cheeseman, No. 09-1756, 2010 WL 699550 (3d Cir. Mar 2, 2010). The Third Circuit affirmed the district court?s forfeiture of some 600 firearms, potentially valued at $500,000, in connection with the defendant?s conviction for being a drug user in possession of firearms in violation of 18 U...

Deficient Seach Warrant in Child Porn Case "Saved" by Good Faith Exception

Posted on March 18, 2010
United States v. Tracey, No. 08-3290, 2010 WL 681364 (3d Cir. Mar. 1, 2010). The Third Circuit reversed the district court?s suppression order in a child pornography case and held that although the search warrant was deficient because it did not clearly indicate that the items-to-be-seized, the good faith exception applied because the "officer could understandably believe that he had met the requirements of the Fourth Amendment...

Court Upholds Constitutionality of "SORNA"

Posted on February 15, 2010
In United States v. Shenandoah, No. 09-1205 (Feb. 9, 2010), the Third Circuit confronted one of what it called ?hundreds of similar challenges? filed in federal courts to the Sexual Offender Registration and Notification Act (?SORNA?). In one fell swoop, it rejected a broad range of constitutional challenges in the case of a defendant convicted of statutory rape a decade before the law?s enactment in 2006...

Circuit Reverses Grant of Acquittal in Drug Conspiracy

Posted on February 02, 2010
United States v. Boria, No. 08-2550, 2009 WL 282088 (Jan. 26, 2010). Following a jury verdict of guilty on charges of aiding and abetting and conspiracy to possess with intent to distribute cocaine, the district court entered a judgment of acquittal, finding the evidence of his knowledge of the objective of the conspiracy, i...

Circuit Affirms Summary Judgment for State Defendants in Delaware Lethal Injection Case

Posted on February 02, 2010
Jackson v. Danberg, No. 09-1925 and 09-2052 (Feb. 1, 2010). In a § 1983 class action challenging the constitutionality of lethal injection in Delaware, neither (1) Delaware?s record of errors in implementing its execution protocol, nor (2) the absence of a planned alternative to peripheral venous access, show a substantial risk of serious harm under the standard announced in Baze v...

Court Upholds Denial of IA Claim: No Evidentiary Hearing was Necessary and Petitioner Failed to Show Prejudice

Posted on February 01, 2010
In Palmer v. Hendricks, No. 06-2991 (3rd Cir. Jan. 26, 2010), the Third Circuit affirms the district court?s denial of habeas relief on Palmer?s claim that his trial counsel was ineffective for failing to advise him of his right to testify. Petitioner failed to show prejudice resulting from counsel?s failure to advise him of his right to testify, where petitioner?s factual proffer regarding this ineffectiveness claim did not include a proffer of his testimony, had he received proper advice and chosen to testify...

Pennsylvania Resisting Arrest is Crime of Violence Under Begay

Posted on January 24, 2010
In United States v. Stinson, No. 08-1717, the Third Circuit recently ruled that Pennsylvania Resisting Arrest is a crime of violence under Begay. The Pennsylvania statue specifies two ways in which a defendant may resist arrest: (1) by creating a substantial risk of bodily injury to an officer or another; or (2) by employing means justifying or requiring substantial force to overcome the resistance...

Proper Unit of Prosecution under § 924(c) Is the Underlying Predicate Offense

Posted on January 22, 2010
United States v. Diaz, __ F.3d__, 2010 WL 143684 (3d Cir. Jan. 15, 2010). Nelson Diaz was convicted by a jury of two counts of possession of a firearm in furtherance of drug trafficking,in violation of 18 U.S.C. § 924(c) and a single count of possession with intent to distribute heroin...

Court Continues to Require Careful Tailoring of Internet Restrictions on Sex Offenders

Posted on January 21, 2010
In United States v. Heckman, 08-3844, the Third Circuit extended its line of precedent (Crandon, Freeman, Voelker, Thielemann) requiring district courts to carefully tailor internet restrictions for sex offenders on supervised release. Heckman had a lengthy history of child molestation, but he had never been convicted of using the internet to entice or exploit a child -- the type of conduct the Court has previously said is essential to supporting Internet bans...

En Banc Court to Revisit Construction of Federal Conspiracy Statute

Posted on January 14, 2010
On the government?s request, the Circuit has ordered en banc review of the decision in US v. Rigas, No. 08-3218 (Oct. 21, 2009) (original Third Circuit Blog post here). The order granting review, filed January 13, directs that the sole issue is "whether the two clauses in 18 U...

Intentional 45 month delay in bringing defendant to trial violated defendant's Sixth Amendment speedy trial rights

Posted on December 21, 2009
In a rare reversal of a district court's speedy trial decision, the Third Circuit in United States v. Battis, 08-2949 (3d Cir. December 14, 2009), concluded that the government's intentional 45 month delay in bringing the defendant to trial violated the defendant's Sixth Amendment right to a speedy trial...

Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as well

Posted on December 04, 2009
The Third Circuit this week, in U.S. v. Hoffa, No. 08-3920 (3d Cir. 12/2/09), reiterated that 18 U.S.C. 3582(a) prohibits courts from using rehabilitation (including medical treatment) to justify imprisonment or to set the amount of imprisonment that will be served...

PA Simple Assault = crime of violence under knowing/intentional part of statute

Posted on November 22, 2009
In US v. James Henry Johnson, No. 08-3693 (3d Cir. 11/18/09), the Circuit examined whether simple assault under Pennsylvania statute is a crime of violence for purposes of USSG § 4B1.2(a)(2). The Court, while stating that it was not actually ruling on the issue, expressly doubted that a simple assault committed recklessly could be a crime of violence in light of US v...

For Purposes of Double Jeopardy, General Conspiracy Statute Creates Single Offense that May Be Committed in Two Ways

Posted on November 05, 2009
In United States v. Rigas, No. 08-3218 (3d Cir., 10/21/2009) , the defendants, members of the Rigas family, were charged with participating in a fraudulent scheme effectuated through their ownership of Adelphia Communications. The defendants were indicted, inter alia, for conspiracy under 18 U...

Indictment Alleging Honest Services Fraud Sufficient Where Charges Allege Intentional Violation of Clearly Defined Fiduciary Duty

Posted on November 05, 2009
The issue in United States v. McGeehan, Nos. 05-1954 & 05-2446 (3d Cir.,10/22/2009) , was whether the defendants, the President/CEO and Vice-President/COO of a publicly-funded, non-profit corporation, could be prosecuted for ?honest services? fraud under 18 U...

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

Posted on November 05, 2009
In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court?s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1...

Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

Posted on October 21, 2009
In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same...

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

Posted on October 13, 2009
Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father...

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

Posted on October 13, 2009
Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count...

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