(The Third Circuit issued two published opinions yesterday. I had a Third Circuit brief due that I filed at 10:22 pm, so blogging had to wait.)

US v. Hester — criminal — partial reversal — Restrepo

The Third Circuit affirmed the denial of a motion to suppress evidence seized during a traffic stop, but reversed the application of a sentencing enhancement for evidence tampering.

On the suppression issue, the court held that the traffic stop was a seizure and that the defendant submitted to authority despite his eventual failed attempt to flee, but that the stop was supported by reasonable suspicion.

On the sentencing issue, it held that application of the enhancement was erroneous for two reasons: (1) factually, the defendant’s actions didn’t amount to tampering (“we cannot agree that ex post expressions of regret about not having committed a potentially criminal act amounts to an attempt to commit that same criminal act” is a cool line), and (2) legally, the enhancement didn’t apply because it required possession of a gun “in connection with” another offense and no connection was present here. The court rejected the government’s argument that remand was pointless because the judge had already departed downward due to uncertainty about the enhancement’s application.

Joining Restrepo were Smith and McKee. Arguing counsel were John Romano for the government and Leticia Olivera of the NJ federal defenders for the defendant.

In re: Revel — bankruptcy — affirmance — Ambro

The Third Circuit affirmed a ruling leaving in place a tenant’s favorable lease terms after the landlord declared bankruptcy and was purchased free and clear. Best line: “The Lease is long and neither simple nor direct. Indeed, it is an almost impenetrable web of formulas, defined terms, and cross-references–a ‘bloated morass,’ in the words of the Bankruptcy Court.”

Joining Ambro were Chagares and Greenaway. Arguing counsel were Stuart Moskovitz for the new landlord and Jeffrey Cooper of Rabinowitz Lubetkin for the tenant.