Brett G. Sweitzer Assistant Federal Defender Chief of Appeals Federal Community Defender Office, E.D. Pa.

Transcription

1 Brett G. Sweitzer Assistant Federal Defender Chief of Appeals Federal Community Defender Office, E.D. Pa.

2 Supreme Court Decided Cases ACCA s residual clause void for vagueness Johnson v. United States, 135 S. Ct (2015) Four types of ACCA predicates: Violent Felony Element of Physical Force Violent Felony Enumerated (burglary, arson, extortion, explosives) Violent Felony Residual Clause Serious Drug Offense Residual Clause: otherwise involves conduct that presents a serious potential risk of physical injury to another

3 Supreme Court Decided Cases ACCA s residual clause void for vagueness Johnson v. United States, 135 S. Ct (2015) Years of tortuous interpretation: James: ordinary case comparable to nearest enumerated analog Begay: purposeful, violent, aggressive Chambers: statistical approach Sykes: Begay backpedal Superseded by Johnson

4 Supreme Court Decided Cases ACCA s residual clause void for vagueness Johnson v. United States, 135 S. Ct (2015) Holding: Residual Clause unconstitutionally vague, and therefore void No impact on other types of VFs, or on SDOs No impact on the categorical or modified categorical approach Application: DOJ generally waiving procedural hurdles such as plain-error; failure to raise in opening brief; etc.

5 Supreme Court Decided Cases ACCA s residual clause void for vagueness Johnson v. United States, 135 S. Ct (2015) Big Deal: most VFs come under the residual clause Simple and aggravated assaults; conspiracy and other inchoate crimes; slight-force robbery; resisting arrest; fleeing/eluding Anything that is neither enumerated (generic burglary, arson, extortion, explosives) nor has ELEMENT of FORCE, defined as violent force capable of causing physical pain or injury (the other Johnson Johnson v. U.S., 559 U.S. 133 (2010))

6 Supreme Court Decided Cases ACCA s residual clause void for vagueness Johnson v. United States, 135 S. Ct (2015) Practice Tip: Assume offense is NOT a predicate until proven otherwise Don t rely on commonsense notions E.g., bodily injury offenses do not necessarily require violent force (poisoning, etc.) Between generic analysis; categorical approach; divisibility analysis (Descamps); element of violent force analysis; and no more residual clause, MOST offenses should not count

7 Supreme Court Decided Cases But wait, there s more... Johnson v. United States, 135 S. Ct (2015) NOT LIMITED TO ACCA! Identical residual clause throughout the Guidelines 4B1.2 (career offender) 2K2.1 (firearm BOLs) 2K2.3 (explosives BOLs) 2L1.2 (aggravated felony) 2S1.1 (money laundering) 3B1.5 (body armor) 4A1.1(e) (criminal history) 7B1.1 (SR violation grading)

8 Supreme Court Decided Cases Johnson v. United States, 135 S. Ct (2015) DOJ concedes that Johnson applies to the Guidelines wrongly maintains that GL commentary can provide additional enumerated offenses COUNTER: commentary interprets now-void residual clause, and is now inconsistent with guideline text and therefore void (Stinson v. U.S., 508 U.S. 36 (1993)) Circuit split on whether to accept concession Third Circuit poised to rule on the issue in U.S. v. Calabretta, No

9 Supreme Court Decided Cases But wait, there s even more... Johnson v. United States, 135 S. Ct (2015) Nearly identical residual clause in 18 U.S.C. 924(c) and 16(b) defining crime of violence to include any felony that by its nature, involves a substantial risk that physical force against the person or property of another may be used DOJ is not conceding Johnson applicability here different wording; lack of complicating enumeration

10 Supreme Court Decided Cases Johnson v. United States, 135 S. Ct (2015) 924(c) charges open to new challenges dismissal for failure to state a predicate COV 1326(b) enhancements open to new challenges COV aggravated felonies

11 Supreme Court Decided Cases But wait, there s even more more... Johnson v. United States, 135 S. Ct (2015) Johnson applies retroactively at least to ACCA DOJ concedes this, acknowledging Johnson announces substantive rule may be raised on initial OR successive 2255 motion DOJ is not conceding Johnson retroactivity for Guidelines Practice Tip: Review your prior ACCA (and ideally careeroffender) clients PSRs for Johnson relief Challenges to (at least) mandatory career-offender designations cognizable under 2255 (U.S. v. Doe, 2015 WL (3d Cir. Sept. 2, 2015))

12 Supreme Court Decided Cases Continued narrowing of testimonial under the Confrontation Clause Ohio v. Clark, 135 S. Ct (2015) Crawford/Hinton: objective witness would think statement available for use at trial Bryant: primary purpose of conversation to create statement for use at trial Clark: primary purpose test not exclusive 3-y/o child s statements to teachers about abuse not testimonial, considering all circumstances statements to non-law enforcement significantly less likely to be testimonial statements by young children rarely, if ever testimonial strong push-back concurrence by Scalia

13 Supreme Court Decided Cases Mens Rea I: Interstate Threats (18 U.S.C. 875(c)) Elonis v. United States, 135 S. Ct (2015) Facebook postings quasi-threatening estranged wife statute silent on mens rea convicted under Third Circuit reasonable person would view as threat jury instruction Held: as matter of statutory construction, defendant must intend to threaten, or know that the communication will be viewed as a threat good language re: presumption in favor of mens rea above negligence BUT: required only to separate wrongful from innocent conduct (not much help on drug type/quantity...)

14 Supreme Court Decided Cases Mens Rea II: Drug Analogues (21 U.S.C. 813) McFadden v. United States, 135 S. Ct (2015) ideal client: researched drug schedules to confirm his bath salts not on; when some later added, destroyed and refused to sell in sting still convicted under jury instruction imposing strict liability as to the substance being a drug analogue i.e., substantially similar, as proved through battle of experts at trial Held: as matter of statutory construction, defendant must know substance is drug analogue, EITHER knows substance is a CS in general (scheduled or analogue); knows particular substance, regardless of whether knows it to be an analogue

15 Supreme Court Pending Cases Exclusionary Rule under fire attenuation and outstanding warrants Utah v. Strieff, No QP: Should evidence be suppressed when it is discovered pursuant to a valid arrest warrant, when the warrant itself was discovered during an unlawful Terry stop? Underlying issue: the applicability and limitations of the attenuation exception to the exclusionary rule; perhaps: does Herring analysis effectively displace established exclusionary-rule exceptions? Third Circuit position: has not squarely ruled Oral argument: TBD

16 Supreme Court Pending Cases Hobbs Act jurisdiction (attempted) robbery of drug dealer Taylor v. United States, QP: Is drug dealing an inherently economic enterprise, such that the government need not prove that the particular robbery at issue had an effect on interstate commerce? Is the evidence here -- robbery of a drug dealer that resulted in the taking of only personal items -- sufficient to establish the jurisdictional element? Underlying issue: Cornucopia of jurisdictional doctrines aggregation principle; depletion of assets; targeting theory. Third Circuit position: has not squarely held drug dealing to per se affect interstate commerce Oral argument: TBD

17 Supreme Court Pending Cases Hobbs Act conspiracy: victim/co-conspirator Ocasio v. United States, QP: Can a defendant be convicted of an extortion conspiracy under the Hobbs Act when he extorts money from his co-conspirator? Underlying issue: Police officer in a kickback conspiracy with auto-body shop Third Circuit position: has not squarely ruled Oral argument: 10/6/15 OA suggests conviction will be upheld

18 Supreme Court Pending Cases Fifth/Sixth Amendment -- Asset Restraint (18 U.S.C. 1345) Luis v. United States, QP: Does the pretrial restraint of a defendant s untainted (though forfeitable substitute) assets needed to retain counsel of choice violate the Fifth and Sixth Amendments? Underlying issue: Under Kaley, a defendant is entitled to a hearing on traceability when the government seeks restraint of tainted assets. Here, the government seeks restraint of substitute assets, which it claims are forfeitable regardless of taint. Third Circuit position: has not squarely ruled Oral argument: 11/10/15

19 Supreme Court Pending Cases Sufficiency of Evidence and Statute of Limitations Musacchio v. United States, QPs: (1) When a jury is erroneously instructed, without objection, that the government must prove an extra element not required by statute or pled in the indictment, is sufficiency of the evidence judged against the offense as enacted/charged or as instructed? (2) Is a statute-of-limitations defense not raised at/before trial waived, or merely forfeited? Underlying issue: Whether the prosecutor passed the bar exam Third Circuit position: unraised SOL is waived (U.S. v. Karlin, 785 F.2d 90 (3d Cir. 1986) Oral argument: 11/30/15

20 Supreme Court Pending Cases Plain-error relief for Guidelines errors Molina-Martinez v. United States, QP: May a court of appeals, under the third ( substantial rights ) prong of plain-error review, presume prejudice from the application of an incorrect Guidelines range? Underlying issue: Arises in overlapping range and variance cases Third Circuit position: Rebuttable presumption of prejudice (U.S. v. Knight, 266 F.3d 203 (3d Cir. 2001)) Oral argument: TBD

21 Supreme Court Pending Cases Child pornography recidivist enhancement (18 U.S.C. 2252(b)(2)) Lockhart v. United States, QP: Whether the 10-year mandatory minimum for CP defendants with a prior conviction relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward is triggered by a conviction for sexual abuse of an adult Underlying issue: last-antecedent rule vs. seriesqualifier rule Third Circuit position: none Oral argument: 11/3/15

22 Supreme Court Pending Cases Retroactivity of Miller v. Alabama Montgomery v. Louisiana, QPs: (1) Whether Miller, which banned mandatory life-without-parole for juveniles, is retroactive (2) Whether Court has jurisdiction to decide the matter in a case arising from state court Third Circuit position: none (issue held c.a.v. in Songster) Oral argument: 10/13/15 OA suggests jurisdictional hurdle significant

23 Third Circuit En Banc Alleyne and harmlessness United States v. Lewis, F.3d, 2015 WL (3d Cir. 2015) When is Alleyne/Apprendi error harmless? Scenario: (1) indictment charged use/carry (although brandishing facts mentioned elsewhere); (2) jury instructed on use/carry (although evidence of brandishing overwhelming); and (3) defendant sentenced for brandishing, over objection

24 Third Circuit En Banc Alleyne and harmlessness United States v. Lewis, F.3d, 2015 WL (3d Cir. 2015) Held: application of brandishing MM not harmless, because it affected sentence received error was pure sentencing error, since indictment charged and valid offense and defendant convicted of that offense overwhelming evidence irrelevant, since defendant never indicted for brandishing

25 Third Circuit En Banc Alleyne and harmlessness United States v. Lewis, F.3d, 2015 WL (3d Cir. 2015) Court distinguishes: U.S. v. Vazquez, 271 F.3d 93 (3d Cir. 2001), holding Apprendi error harmless in light of overwhelming drug quantity evidence, where quantity charged but not submitted to jury U.S. v. Cotton, 535 U.S. 625 (2002), denying relief for Apprendi sentencing error under fourth prong of plain-error doctrine

26 Third Circuit Fourth Amendment: submission to show of authority United States v. Lowe, 791 F.3d 424 (3d Cir. 2015) seizure = laying of hands OR submission to show of authority here, multiple officers approached defendant in middle of night demanding that he raise his hands Held: defendant submitted to this show of authority by not fleeing, even though he took several steps back as police approached and did not comply with order to raise hands seizure therefore immediate, and failure to raise hands does not factor into reasonable-suspicion analysis

27 Third Circuit Fourth Amendment: reasonable expectation of privacy (standing) in corporate setting United States v. Nagle, 2015 WL (3d Cir. Sept. 30, 2015) defendant is majority owner of small family corporation, whose offices were searched pursuant to warrant Held: defendant has no standing, as owner, to challenge search in its entirety; instead he may challenge search of only those areas with which he had a personal connection, i.e. a reasonable expectation of privacy

28 Third Circuit Fifth Amendment: self-incrimination and collective-entity doctrine In re: GJ Empaneled May 9, 2014, 786 F.3d 255 (3d Cir. 2015) Held: records custodian of corporation may not invoke SI privilege to avoid producing corporate records, even when custodian is sole owner/employee of corporation and records may incriminate him declining to find applicable Footnote 11 of Braswell v. U.S., 487 U.S. 99 (1988) (reserving issue of act-ofproduction doctrine where sole owner would lead jury to conclude production was of individual rather than corporation)

29 Third Circuit Fifth Amendment: self-incrimination and the required-records exception United States v. Chabot, 793 F.3d 338 (3d Cir. 2015) Held: individual may not invoke SI privilege to avoid producing records of foreign banking activity required to be kept by banking regulations such documents fall within required-records exception to the act-of-production doctrine, given that: (1) the record-keeping scheme serves a regulatory purpose; (2) person customarily keeps records required to keep; and (3) records have public aspects

30 Third Circuit Fifth Amendment: constructive amendment United States v. Centeno, 793 F.3d 378 (3d Cir. 2015) defendant charged with aiding and abetting an assault on federal property evidence: defendant possibly participated in a group assault, and drove principals away from the scene Held: prosecutor constructively amended indictment, adding accessory-after-fact charge, by arguing in summation that conviction can be based solely on driving getaway car cannot a/a completed crime, and assault unlike robbery is complete before flight

31 Third Circuit Crimes: escape (18 U.S.C. 751(a)) United States v. Small, 793 F.3d 350 (3d Cir. 2015) defendant serving state sentence was convicted of federal tax fraud, but tricks state officials into releasing him at conclusion of state sentence by forging a court order vacating his federal conviction Held: defendant escaped from custody within the meaning of 751(a) lawful judgment of conviction places defendant in constructive federal custody

32 Third Circuit Crimes: Hobbs Act extortion under color of official right United States v. Fountain, 792 F.3d 310 (3d Cir. 2015) IRS employee w/o actual power offered to arrange refunds and red-flag people who failed to pay her fee Held: to be guilty of official-right extortion, defendant need not have actual power to convey benefit to the payor instead, evidence need only indicate that: (1) payor had reasonable belief that defendant would perform official act in exchange for payment; and (2) defendant knew payment made because of that belief

33 Third Circuit Crimes: Traveling for sex with minor (18 U.S.C. 2423(b)) United States v. Schneider, 2015 WL (3d Cir. Sept. 9, 2015) defendant is an American ex-pat in Moscow, who groomed and ultimately had sexual relationship with minor aspiring ballet dancer travel to Philadelphia to facilitate ballet study, no sexual conduct on trip Held: (1) Mann Act precedent applies to 2423(b) (2) assuming innocent round-trip exception applies, not satisfied on facts of this case (3) limitations extension of 18 U.S.C applies b/c 2423(b) involves sexual abuse of a child, even though abuse need not occur during travel

34 Third Circuit Sentencing: Loss calculation in DBE cases United States v. Nagle, 2015 WL (3d Cir. Sept. 30, 2015) defendant arranged for DBE to win sub-contracts on SEPTA project for which defendant was main contractor, but defendant not the DBE did the work on the subcontracts Held: loss in a DBE case is NOT the face value of the DBE contract, but the face value minus the value of the work performed

35 Third Circuit Sentencing: Jurisdiction over supervised release violations United States v. Merlino, 785 F.3d 79 (3d Cir. 2015) Defendant s SR set to expire on 9/6/14 9/2/14: DCT orders that a summons be issued 9/16/14: summons issues, scheduling hearing for 10/10/14 to accommodate defense counsel s schedule Held: summons/warrant (notice of hearing) must issue before SR terminates in order for DCT to retain jurisdiction to adjudicate a violation of SR; irrelevant that violation petition filed/endorsed before termination; hearing may occur after termination

36 Resources Federal Defender Third Circuit Blog: FCDO Website Contains links to DefenseLink (CJA Newsletter) & Case Summaries Defender Services / Training Division