Criminal Law

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...

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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...

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Posted on October 05, 2009
Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don?t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1...

In an Clean Air Act Case, the Judgments of Conviction and Sentence Are Affirmed

Posted on September 29, 2009
In United States v. Starnes/United States v. George, Nos. 07-3341/08-1691, September 24, 2009, the Court of Appeals affirmed the conviction and sentences of two defendants whose appeals were not formally consolidated but arose from the same set of facts...

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

Posted on September 28, 2009
In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris? motion to vacate an order of civil contempt.Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents...

Rehearing Granted in Case Where Court Previously Held That Prior Conviction for Resisting Arrest Qualified as a Crime of Violence.

Posted on September 28, 2009
On September 25th, in United States v. Stinson, No. 08-1717, July 28, 2009, the Court of Appeals granted rehearing in a case where it previously held that a prior conviction for resisting arrest was a crime of violence under U.S.S.G. § 4B1.1(a). Argument is scheduled for October 8, 2009.

Under A.E.D.P.A., No 6th Amendment Violation Where Neither Pro Se Defendant Nor Standby Counsel Were Present for Trial.

Posted on September 28, 2009
In Thomas v. Carroll, No. 06-2282, September 22, 2009, the Court of Appeals affirmed the District Court?s denial of Thomas? § 2254 petition.While already serving a lengthy prison sentence Thomas assaulted a corrections officer and was subsequently charged in state court...

Brady Violations Compel New Trial in Capital Murder Case

Posted on September 24, 2009
In Simmons v. Beard, No. 05-9001 (3rd Cir. Sept. 11, 2009), a habeas proceeding arising from a capital murder conviction, the Third Circuit affirmed the district court?s grant of a new trial on the ground that the state prosecutors withheld several pieces of material exculpatory evidence in violation of Brady where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.

Writ of Audita Querela Under the All Writs Act Cannot Trump 28 U.S.C. 2255

Posted on September 23, 2009
The Third Circuit recently ruled that a federal prisoner may not seek relief via a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651, as long as his claim is cognizable under 28 U.S.C. § 2255. United States v. Massey, No...

Sentencing courts have discretion to consider fast-track disparity as a basis for a downward variance

Posted on September 15, 2009
Joining the First Circuit and adding to the circuit split on this issue, the Third Circuit has held that, under the logic of Kimbrough v. United States, 552 U.S. 85 (2007), "it is within a sentencing judge's discretion to consider a variance from the Guidelines on the basis of a fast-track disparity...

Habeas Relief Granted in Decision Construing Pennsylvania Law of Conspiracy

Posted on August 31, 2009
In Robertson v. Klem, No. 07-2581 (Aug. 28, 2009), the Court considers a state prosecution resulting in consecutive sentences of five to ten years? imprisonment for each of two alleged conspiracies to commit murder. The Court grants habeas relief on the ground that the evidence was insufficient under Pennsylvania law to support conviction of more than one conspiracy...

"Departure" or "Variance," that is the Question

Posted on August 28, 2009
District courts must speak clearly before striking with a big stick, the Court reiterates in United States v. Brown, No. 08-1221, vacating a child pornography sentence when the record left ambiguous whether the district court had "departed" upward pursuant to a Guidelines application note or "varied" upward on the basis of its own statutory sentencing discretion...

Felon?s Possession of Gun With Ammo Supports Conviction on One Count Only

Posted on August 28, 2009
Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition...

Probation Sentence in Child Porn Case Falls as Procedurally and Substantively Unreasonable

Posted on August 28, 2009
Earlier this year, the en banc Circuit directed in United States v. Tomko (Blog post here) that "if the district court?s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided...

PA Escape (M2) is not a Crime of Violence

Posted on August 21, 2009
In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1...

Materiality and filing of false claims with IRS

Posted on August 19, 2009
In United States v. Saybolt, Nos. 07-4392 & 4429 (Aug.18, 2009), the 3rd Circuit held (1) that filing false claims with the IRS, in violation of 18 USC sect 287, does not require proof that the false claims or statements were "material." But the Court also held (2) that conspiracy to defraud the US by filing false claims with the IRS, in violation of 18 USC sect 286, does require proof of materiality in that the government must prove that the conspirators "agreed that those false statements or representations would have a material effect on the Government's decision to pay a false, fictitious, or fraudulent claim...

Post-Begay, Possession of a Weapon In Prison Is Not Considered a ?Crime of Violence? Under the Career Offender Guidelines

Posted on August 18, 2009
In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months? imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers...

Child Porn: Circuit upholds use of relevant conduct and conditions of release

Posted on August 14, 2009
In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court?s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material...

Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)

Posted on July 28, 2009
In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine...

18 U.S.C. § 2242(b) May be Violated Without Direct Communication with Child or Individual Defendant Believes is a Child

Posted on July 28, 2009
In United States v. Nestor, No. 08-2535 (July 23, 2009), the defendant challenged his conviction for attempted enticement under 18 U.S.C. § 2242(b). The defendant communicated with undercover law enforcement officers via email and telephone to arrange a sexual encounter with whom he thought were a father and his minor stepson...

Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

Posted on July 27, 2009
United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger?s "undergarments." The passenger said that the drugs belonged to Lee...

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

Posted on July 09, 2009
The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death...

Citing Hodari D., the Third Circuit reverses District Court?s order suppressing evidence.

Posted on June 26, 2009
In United States v. Waterman, No. 08-2543, June 24, 2009, the Court of Appeals reversed the District Court?s suppression of evidence and remanded for further proceedings.The facts of the case are as follows: Police officers responded to a dispatcher?s report of an anonymous caller?s observation of a "subject" with a gun at a specific location...

Court affirms denial of sentence reduction for eligible crack defendant

Posted on June 22, 2009
Continuing its long string of affirmances in crack resentencing cases, the Third Circuit affirmed the denial of sentence reduction for an eligible defendant in United States v. Styer, 08-2951 (3d Cir. March 25, 2009) (published June 16, 2009). Although the defendant was eligible for a reduction under 18 U...

Supreme Court upholds Third Circuit's classification of mail fraud offense as an "aggravated felony"

Posted on June 16, 2009
Petitioner, an alien, was convicted of conspiracy to commit mail fraud, wire fraud, bank fraud and money laundering. No jury finding was made regarding the amount of loss for those offenses because the amount of loss was not an element of the offense for any count of conviction...

Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

Posted on May 26, 2009
United States v. Jones, No. 07-2798 (May 20, 2009).The Third Circuit gives broad reign to a district court?s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (?VICAR?) statute...

Reversing course, Third Circuit defers decision on whether Section 666 bribery requires proof of a quid-pro-quo

Posted on May 05, 2009
Prompted by a rehearing petition supported by amicus National Association of Criminal Defense Lawyers, the Third Circuit today amended its opinion in United States v. Bornman, No. 07-3447 (3d Cir. Mar. 6, 2009)--blogged here--to delete what had been a brief statement that the federal bribery statute (18 U...

Has the Third Circuit Ended Crack Litigation?

Posted on May 01, 2009
The decision in United States v. Doe, http://www.ca3.uscourts.gov/opinarch/083968p.pdf, holds that if the starting point for the sentence is not lowered by the retroactive crack amendment, a defendant is ineligible for relief under 18 U.S.C. section 3582(c)(2)...

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

Posted on April 28, 2009
In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III...

Supreme Court Limits Belton Searches

Posted on April 21, 2009
The Supreme Court issued an opinion today in Arizona v. Gant, 2009 WL 1045962 (April 21, 2009), holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest...

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Posted on April 20, 2009
Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence...

Closely Divided En Banc Court Affirms ?Gilded Cage? Sentence: Gall requires great deference to district court sentencing decisions

Posted on April 20, 2009
In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court...

Cert granted in Third Circuit case striking down criminal prohibition on depictions of animal cruelty

Posted on April 20, 2009
The Supreme Court this morning agreed to decide whether 18 U.S.C. 48, which makes it a crime to create, sell, or possess depictions of animal cruelty, is invalid under the Free Speech Clause of the First Amendment. The en banc Third Circuit had struck down the statute last summer by a vote of 10-3, in U...

Two Big Sentencing Wins - Summaries - More Later

Posted on April 17, 2009
This just in: The Third Circuit issued two favorable sentencing decisions yesterday. Both require more detailed blogging (which will happen over the weekend), but, to get started . . .Peter Goldberger provides this summary of United States v. Olhovsky, __ F...

Third Circuit precludes § 3582(c) sentence reduction where sentence is stipulated in Rule 11 binding plea agreement.

Posted on April 07, 2009
In United States v. Sanchez, No. 08-1847 (3d Cir. April 3, 2009), a panel majority affirmed the District Court?s denial of Sanchez?s motion to reduce his sentence under 18 U.S.C. § 3582(c). Although the District Court's denial was based on determining that the offense of conviction carried a mandatory minimum sentence, the Court of Appeals affirmed the denial on an alternative ground that the District Court did not address: that Sanchez's sentence was the result of a Rule 11 binding plea agreement...

SCOTUS reverses Third Circuit, reinstating mandatory McNabb-Mallory rule

Posted on April 06, 2009
In a 5-4 decision released today, the Supreme Court reaffirmed the McNabb-Mallory rule by holding that confessions taken more than six hours after a federal arrest, but before the defendant is presented to a magistrate judge, must generally be suppressed -- even if they are voluntarily given...

In a "close call," the Third Circuit finds reasonable suspicion to justify stop. Denial of Motion to Suppress affirmed.

Posted on March 31, 2009
In United States v. Mathurin, No. 07-4576 (D.VI 03/27/09), the Court of Appeals affirmed the district court?s denial of the Mathurin?s motion to suppress evidence.ICE Agents received information from Border Agents that a "suspicious vessel" had departed Puerto Rico and was heading their way to St...

Superior Court's rejection of IAC claim involved unreasonable application of Strickland & petitioner?s proffer entitled him to evidentiary hearing

Posted on March 27, 2009
In Siehl v. Grace, No. 07-1568, March 25, 2009, the Court of Appeals reversed the district court?s denial of Siehl?s § 2254 habeas petition and remanded for an evidentiary hearing.Siehl was charged with homicide in state court. The prosecution?s case was based entirely on a fingerprint and bloodstain evidence recovered from the crime scene (the victim?s bathroom)...

Where originally sentenced under career offender guideline, not entitled to two level reduction under Crack Amendment

Posted on March 27, 2009
In United States v. Mateo, No. 08-3249, March 24, 2009, the Court of Appeals joined four other Circuits in denying a motion to reduce sentence under 18 U.S.C. § 3582(c) where at the original sentencing, the defendant was sentenced under the career offender guideline...

Former Secret Service Agent Unsuccessfully Contests Five Sentencing Adjustments Involving Intended Loss, Vulnerable Victim, Abuse of Trust, Obstructio

Posted on March 26, 2009
In United States v. Dullum, No. 07-4502, March 13, 2009, the Court of Appeals affirmed the District Court?s ruling on five sentencing adjustments including; intended loss, vulnerable victim, abuse of trust, obstruction of justice, and acceptance of responsibility in this mail and bank fraud case...

Supreme Court holds that failure to preserve breach of plea agreement is subject to plain error review.

Posted on March 25, 2009
Overruling longstanding Third Circuit doctrine, ( See United States v. Moscahlaidis, 868 F. 2d 1357, 1360 (3d cir. 1989), the Supreme Court held today in Puckett v. United States, 2009 WL 763354 (No. 07-9712), that a breach of a plea bargain at trial or sentencing is subject to "plain error" not "de novo" review unless a timely objection is lodged in the district court...

Scope of conspiracy indictment dictates running of the statute of limitations

Posted on March 06, 2009
The Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No...

Alien bears burden of proving invalidity of written waiver of rights in deportation proceeding

Posted on March 05, 2009

Consent search upheld, with thorny questions of revocation and authority avoided by resort to independent-source doctrine

Posted on March 03, 2009

Money Laundering and Relevant Conduct

Posted on February 24, 2009
In US v. Blackmon, No. 07-4237 (2/23/09), the 3rd Circuit addressed the interplay between the money laundering guideline, USSG 2S1.1(a), and relevant conduct, USSG 1B1.3. The Circuit accurately warned that the discussion of these issues is "abstruse...

Conviction Reversed for Erroneous Hearsay Admission; Court Holds Miranda Issue for Another Day

Posted on February 23, 2009
Held: Out-of-court statement by confidential informant that defendant was the person who sold him the drugs in question, made 50 minutes after event, was not admissible as a present sense impression under Rule 803(1) because it was not sufficiently contemporaneous and was made only after questioning by DEA agents...

Sentencing on Possession of Classified Documents

Posted on February 13, 2009
In United States v. Aquino, 2009 WL 279274 (Feb. 6, 2009), the defendant received and retained documents containing classified information government information pertaining to the current regime in the Phillipines, United States military strategy and training methods, and ongoing criminal investigations...

Habeas Corpus - Claims Relating Back/Ineffective Assistance

Posted on February 13, 2009
In Hodge v. United States, 2009 WL 235674 (Feb. 3, 2009), the Circuit held that defendant's ineffective assistance claim in his untimely supplemental memorandum and his right-to-appeal claim in his original habeas motion were tied to a common core of operative facts...

Court Distinguishes Chapter Two and Chapter Three ?Victims? under the Guidelines

Posted on February 11, 2009
In United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs...

Puerto Rican Felony Conviction Qualifies as Predicate Offense under 18 U.S.C. §922(g)(1)

Posted on February 06, 2009
In United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U...

Fourth Amendment Requires Initial Determination of "Seizure"

Posted on February 05, 2009
In United States v. Crandell, No. 07-4004 (Jan. 29, 2009), police responded to an anonymous tip regarding a Black male with blond-tipped dreadlocks in the area carrying a handgun in his waistband. The officers apparently recognized the tip as a description of the defendant...

Impeachment by contradiction with prior crimes evidence subject to FRE 402, 403 & 607, not 404(b) and 609.

Posted on January 26, 2009
On January 20, 2009, the Third Circuit decided United States v. Gilmore, Case No. 07-3139. It held that a party may permissibly introduce prior crimes evidence, subject to Rules 402, 403 and 607 of the Federal Rules of Evidence, and with a proper limiting instruction, to impeach by contradiction a witness?s testimony regarding a specific fact...

Bare fact of prior arrests cannot be used to increase a defendant's sentence.

Posted on January 12, 2009
In United States v. Berry, No. 07-1251 (Jan. 6, 2009), Defendants pleaded guilty to robbery and using a firearm in furtherance of crime of violence. At sentencing, the district court speculated that the only reason that defendants' prior arrests had not resulted in prior convictions was because the criminal justice system must have broken down, and the arrests were therefore evidence of prior criminal activity which could support an increase in sentence...

Prosecutorial Misconduct for AUSA to Introduce "extensive evidence" of Uncharged Drug Use and Transactions -- Even Under Plain Error Standard

Posted on November 25, 2008
United States v. Morena, No. 07-1297 (Nov. 19, 2008). Morena appealed his conviction for felon-in-possession and possession of an unregistered, sawed-off shotgun. He appealed on several grounds, but prevailed on his claim that the government?s injection into the trial of extensive evidence of uncharged drug use and transactions, as well as evidence of his prior non-felony convictions amounted to prosecutorial misconduct and plain error...

No Bruton Violations in Bench Trials

Posted on November 25, 2008
Johnson v. Tennis, No. 07-1968 (3d Cir. Nov. 19, 2008). The first paragraph of this opinion (almost) says it all:"This appeal by Gary Johnson from the denial of his petition for habeas corpus by the District Court of the Eastern District of Pennsylvania requires us to decide an issue of first impression in this Circuit: Do the teachings of Bruton v...

Defendants not required to re-raise sentencing issues at end of sentencing hearing to avert plain error review

Posted on November 10, 2008
In United States v. Sevilla, 07-1105 (3d Cir. Sept. 4, 2008), the Third Circuit clarified what defendants must do to avert plain error review of sentencing issues. The Court held that where a defendant squarely raises a sentencing issue both in his sentencing memorandum and again at the sentencing proceeding, the defendant is not required to re-raise those issues or otherwise object to the district court's explanation of its sentence in order to avert plain error review...

Reasonable suspicion is required to justify border search of cruise ship passenger's cabin

Posted on November 10, 2008
In a matter of first impression, the Third Circuit ruled in United States v. Whitted, 06-3271 (3d Cir. Sept. 4, 2008) that reasonable suspicion was required to justify a border search of a passenger cabin on a cruise ship arriving in the United States from a foreign port...

Third Circuit discusses procedures for declaring a mistrial based on a deadlocked jury

Posted on November 07, 2008
In United States v. Wecht, 08-2258 (3d Cir. Sept. 5, 2008), the Third Circuit identified the ideal procedures a district court should follow before declaring a mistrial based on a deadlocked jury by referring to the Court's recently adopted Model Jury Instructions, specifically Instruction 9...

Admissibility of Redacted Proffer Statement Violates Confrontation Clause But Constitutes Harmless Error

Posted on October 22, 2008
In United States v. Hardwick et al, (3d Cir. October 3, 2008), the Court of Appeals held that the admission into evidence of a redacted proffer statement, after the close of the Government?s case-in-chief, violated defendants? constitutional rights under the Confrontation Clause; however, use of the proffer statement was harmless error...

Third Circuit finds evidence insufficient to support conviction for harboring; upholds seizure based on anonymous tip

Posted on October 21, 2008
On September 9, 2008, the Third Circuit issued its decision in United States v. Silveus, Case No. 07-3544.  It focused on two issues raised by the appellant, Rozaline Silveus: Whether the evidence was sufficient to support her conviction for harboring an illegal alien (her boyfriend, Dorsainvil Jean), and whether ICE agents' seizure of her -- and the search that followed -- was constitutional...

Failure to Advise Defendant of Mandatory Minimum Sentence Prior to Pleading Guilty Renders Plea Involuntary

Posted on October 15, 2008
In Jamison v. Klem, No. 07-1045 (3d Cir. September 30, 2008), the Court of Appeals held that failure to advise a defendant of an applicable mandatory minimum sentence prior to pleading guilty renders the plea not knowing, voluntary and intelligent. The Court of Appeals reversed the district court?s denial of Jamison?s habeas petition challenging the validity of his guilty plea on those grounds and directed the district to grant a conditional writ...

Cannot Exclude Personal Use in Determining Weight Involved in Conspiracy & Prior Testimony of Witness Admissible Since Trial Testimony Evasive

Posted on October 15, 2008
[This case summarized by Leo Latella.]In United States v. Iglesias, 535 F.3d 150 (3d Cir. 2008) , the Court of Appeals held, in addressing two issues of first impression, that a defendant convicted of conspiring to distribute drugs is not entitled to exclude an amount for personal use in determining the total quantity of drugs involved in the conspiracy...

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...

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...

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...

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...