Tag Archives: Criminal opinions

New opinion — Third Circuit decides a big case on drug-quantity aggregation

U.S. v. Rowe — criminal — reversal — Fisher

It is a crime to distribute, or to possess with intent to distribute, illegal drugs, and the distribution or possession of larger quantities triggers mandatory minimum sentences. For heroin, distribution or possession of 100 grams or more means a 5-year mandatory minimum, and 1000 grams means a 10-year mandatory minimum.

But how are those drug quantities calculated? Suppose a defendant acquires 600 grams of heroin, sells it all at once, then does it again. Are the two quantities added together, 600+600=1200, such that the defendant gets the 1000-gram 10-year mandatory? And does the answer depend on whether the crime was distribution (not a continuing offense) or possession (a continuing offense)?

Drug crimes are the most common federal crimes, so the answers to those questions matter a lot to lots of criminal defendants.

Today, in a major criminal-appeal ruling, the Third Circuit vacated a defendant’s drug conviction, holding that convictions and their resulting mandatory minimum sentences under 21 U.S.C. § 841(b)(1) must be based on discrete distributions or possessions that exceed the drug-quantity thresholds, not a series of smaller quantities aggregated to meet the quantity threshold.

The distribution holding is important in the Middle District of Pennsylvania, where aggregation of sale quantities to trigger mandatory minimums has been a longstanding outlier practice. The possession holding will apply more broadly. The key passage: “possession of 1000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1000 grams.”

The court vacated the defendant’s conviction and remanded for resentencing for distribution and possession of 100 grams with the government barred from offering new drug-quantity evidence on remand. (The district court had calculated the defendant’s sentence under the Sentencing Guidelines based on over 10 kilograms, relying on evidence that had been excluded at trial and not introduced at sentencing, which on appeal the the government conceded was error.)

Joining Fisher were Smith and McKee. Arguing counsel were Peter Goldberger for the defendant and Stephen Cerutti II of the MDPA US Attorney’s office for the government.

This was already Goldberger’s second major Third Circuit win of 2019, following Piasecki; not surprisingly, Goldberger recently was honored by a publication based on peer voting as lawyer of the year for appellate practice in eastern Pennsylvania. His co-counsel on the case was Goldberger’s long-term senior associate and former Third Circuit staff attorney Pamela Wilk.

Two new opinions, including an emphatic sentencing reversal

US v. Chapman–criminal–reversal–Restrepo

In a calmly scalding opinion, the Third Circuit today vacated a criminal sentence and remanded for resentencing by a different district judge because the sentencing judge refused to postpone sentencing despite knowing that the defendant’s lawyer had failed to notify the man beforehand of his sentencing hearing, which deprived the man of the chance to offer witnesses and letters seeking sentencing leniency.

When an opinion chooses to quote the district judge’s “pique” and “irritation,” when it says “it is plain the District Court erred” and it “unfairly” deprived the defendant’s rights, when it describes a position the sentencing judge rejected as “manifestly reasonable,” when it states that “the District Court improperly compromised the appearance of fairness” and describes this “appearance of unfairness” as “especially stark,” and when it orders resentencing by a different judge, I’d say the court is sending a stern message.

I’d guess that the court is aware that the district judge in question has been mentioned (here, for example) as a potential nominee to fill Judge Vanaskie’s seat, and also that a 2017 non-precedential CA3 opinion also was critical of a ruling by same district judge. If those guesses are right, today’s opinion is all the more remarkable.

Joining Restrepo was McKee; Vanaskie had been the third judge on the panel prior to his retirement. Arguing counsel were Candace Cain of the WDPA defender for the defendant and George Rocktashel of the MDPA AUSAs for the government.

 

US v. Daniels–criminal–affirmance–Cowen

The Third Circuit today affirmed a defendant’s career-offender sentence, holding that attempted drug dealing qualifies as a serious drug offense under the ACCA and that “the scope of attempt and accomplice liablity under Pennsylvania law is coextensive with the meaning of those terms under federal law.”

Joining Cowen were Krause and Fuentes. The case was decided without oral argument.

Two new opinions

(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.

 

Two new opinions, including a partial reversal of the Bridgegate convictions

US v. Baroni — criminal — partial reversal — Scirica

The introduction admirably summarizes things:

Defendants William E. Baroni, Jr. and Bridget Anne Kelly engaged in a scheme to impose crippling gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee’s mayor refused to endorse the 2013 reelection bid of then-Governor Chris Christie. To this end, under the guise of conducting a “traffic study,” Baroni and Kelly, among others, conspired to limit Fort Lee motorists’ access to the George Washington Bridge—the world’s busiest bridge—over four days in early September 2013: the first week of Fort Lee’s school year. This scheme caused vehicles to back up into the Borough, creating intense traffic jams. Extensive media coverage ensued, and the scandal became known as “Bridgegate.”

In 2015, a grand jury indicted Baroni and Kelly for their role in the scheme. Each Defendant was charged with seven counts: conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. § 371, and the substantive offense, id. § 666(a)(1)(A); conspiracy to commit wire fraud, id. § 1349, and two counts of the substantive offense, id. § 1343; and conspiracy against civil rights, id. § 241, and the substantive offense, id. § 242. A jury convicted Defendants on all counts. They appeal only their judgments of conviction.

For reasons that follow, we will affirm Defendants’ judgments of convictions on the wire fraud and Section 666 counts but will reverse and vacate their civil rights convictions.

Criminal liability on the civil rights convictions turned on whether their actions were subject to qualified immunity. The court today held that they were protected by qualified immunity, even though their actions had been clearly illegal in the Third Circuit for almost three decades, because there was not a robust consensus on the point among the rest of the circuits. It wrote, “The Supreme Court has suggested that a single binding case from the defendant’s jurisdiction is insufficient to give notice that certain conduct could lead to criminal punishment. See Carroll
v. Carman, 135 S. Ct. 348, 350 (2014).” But Carroll assumed for the sake of argument that a single prior decision could constitute clearly established law, and instead held that the case relied on there did not answer the question. So today’s holding appears, at least at first blush, to expand significantly the scope of qualified immunity.

Joining Scirica were Ambro and Siler CA6 by designation. Arguing counsel were Michael Levy of Sidley Austin for one defendant, Jacob Roth of Jones Day for the other, and Bruce Keller for the government.

 

Weitzner v. Sanofi Pasteur — civil — affirmance — Smith

The Third Circuit upheld a grant of summary judgment in favor the defense in a suit under the Telephone Consumer Protection Act, holding that the plaintiffs’ untimely claims were not subject to class-action tolling under American Pipe.

Joining Smith were McKee and Restrepo. Arguing counsel were Todd Bank of NY for the appellants and Carl Greco of Scranton for the appellees.

New opinion

US v. McClure-Potts — criminal — affirmance — Greenaway

The Third Circuit today affirmed a criminal conviction for Social Security fraud, rejecting the defendant’s arguments that (1) she should have received a Sentencing Guidelines reduction for frauds committed “other than for profit” despite having received government benefits, (2) certain factual findings by the judge at sentencing were clearly erroneous, and (3) the court erred in calculating the loss amount used to set her Guidelines range.

Joining Greenaway were Ambro and Chagares. Arguing counsel were Fritz Ulrich of the MDPA federal defenders for the defendant and Stephen Cerutti of the MDPA US Attorney’s office for the government.

Three new opinions

The Third Circuit issued three published opinions yesterday.

US. v. Rivera-Cruz — criminal — affirmance — Hardiman

The introduction ably explains:

Reynaldo Rivera-Cruz appeals an order of the United
States District Court for the Middle District of Pennsylvania
denying his motion for a sentence reduction. The relevant
statute (18 U.S.C. § 3582(c)(2)) authorizes sentence
reductions for defendants initially “sentenced to a term of
imprisonment based on” a United States Sentencing
Guidelines (USSG) range that was later lowered by the
United States Sentencing Commission. In Koons v. United
States, 138 S. Ct. 1783 (2018), the Supreme Court held that
such relief is unavailable to a defendant whose Guidelines
range is “scrapped” in favor of a statutory mandatory
minimum sentence. Id. at 1787–88. We now hold that the
same is true where, as here, a statutory maximum displaces
the defendant’s Guidelines range.

In Koons, a statute set the available sentence completely outside the Guidelines range, by requiring a minimum that was above the top of the range. Here, the statute also took the available sentence completely out of the Guidelines range, but by setting a maximum that was below the bottom of the range. The court reasoned that the “distinction is immaterial” here.

Joining Hardiman were Krause and Bibas. The case was decided without oral argument.

 

Schultz v. Midland Credit Mgmt. — civil / FDCPA — reversal — Vanaskie

A debt collector sent out form collection letters stating that forgiveness of debt may be reported to the IRS. But some of the recipients of that letter owed less than $600, and the IRS doesn’t require reporting of debt discharges under $600. One such recipient filed a putative class action suit against the debt collector under the Fair Debt Collection Practices Act. The district court dismissed, but the Third Circuit reversed, cautioning that the convenience of using form letters does not excuse compliance with the FDCPA.

Joining Vanaskie were Hardiman and Shwartz. Arguing counsel were Andrew Milz of Flitter Milz for the recipients and David Schultz of Chicago for the debt collector.

 

Judge v. Shikellamy School Dist. — civil — affirmance — Hardiman

A school principal was arrested on charges of drunk driving and resigned as principal but later sued alleging constructive discharge. Concluding that her resignation was voluntary, the Third Circuit affirmed dismissal of her suit. The opinion explained that the court had not explained how to analyze constructive-discharge claims, and the court adopted the Eleventh Circuit’s five-point framework.

Joining Hardiman were Krause and Bibas. The case was decided without oral argument.

Two new opinions

US v. Thomas — criminal — partial affirmance — Greenaway

A media company intervened in a criminal case involving aid to a foreign terrorist group, seeking to unseal records from the case including a guilty-plea document and materials involving surveillance discovery. The district court denied the request on national security grounds. Today, the Third Circuit affirmed as to the plea document, recognizing a presumptive First Amendment right to access but holding that the presumption was overcome here, and remanded for the district court to reconsider redaction of the rest.

Joining Greenaway were Restrepo and Bibas. The case was decided without oral argument.

 

Reese v. Warden — criminal — Fuentes — affirmance

The Third Circuit today held that a federal prisoner may not challenge his pretrial detention through a habeas petition under 28 USC § 2241. The ruling was a bit unusual in that the court noted that the issue was novel in the circuit, decided it with a signed precedential opinion, and agreed with two sister-circuit cases from the 80’s, one of them per curiam — but it denied the pro se inmate’s request for counsel, summarily affirmed without full briefing, and ruled that no substantial question was presented.

Joining Fuentes were Chagares and Greenaway. The case was decided without argument.

Three new opinions [updated]

Update: on October 30 the panel granted the Commonwealth’s petition for panel rehearing and vacated the original opinion, with a new opinion and judgment to come.

Workman v. Superintendent — habeas corpus — reversal — Fuentes

The Third Circuit today ruled in favor of a habeas corpus petitioner, holding that his trial counsel was ineffective for failing almost entirely to mount a defense and that post-conviction counsel’s ineffectiveness excused default of that issue under Martinez v. Ryan. Notably, the court held that the petitioner did not need to prove prejudice from his counsel’s error because, under United States v. Cronic, prejudice was presumed due to counsel’s near-total failure to contest the prosecution’s case.

[Disclosure: I provided minor consulting assistance to counsel for the petitioner.]

Joining Fuentes were Ambro and Restrepo. Arguing counsel were Marshall Dayan of the WDPA defender for the petitioner and Catherine Kiefer of the Philadelphia DA’s office for the Commonwealth.

 

US v. Renteria — criminal — affirmance — Fuentes

The Third Circuit today split with the Second Circuit in holding that venue for a conspiracy conviction does not require proof that it was reasonably foreseeable that conduct in furtherance of the conspiracy would occur in the venue district, affirming a defendant’s conviction and sentence.

[Disclosure: I assisted counsel for the defendant by being a judge for her oral argument moot.]

Joining Fuentes were Greenaway and Rendell. Arguing counsel were Susan Lin of Kairys Rudovsky for the defendant and Bernadette McKeon of the EDPA U.S. Attorney’s office for the government.

 

 

Trinity Industries v. Greenlease Holding Co. — civil — partial reversal — Jordan

One company built railcars at a particular site for over 75 years, then another company bought the site and built railcars there for another 14 years. A state investigation of the site revealed illegal waste dumping on the site, resulting in a criminal prosecution and almost $9 million in clean-up costs. The two companies disputed how the clean-up costs should be allocated between them under CERCLA and an analogous state law. The district court allocated 62% of the clean-up cost to the first company; today, the Third Circuit vacated and remanded, holding that the district court’s allocation methodology was speculative because it materially deviated from the second company’s expert’s allocation methodology.

Joining Jordan were Chagares and Hardiman. Arguing counsel were Steven Baicker-McKee of Babst Calland for the first company and Paul Steinman of Eckert Seamans for the second.

Two new opinions, including a rare PLRA win with a rare dissent urging en banc rehearing

Brown v. Sage — prisoner rights — reversal — Fuentes

Today, a divided Third Circuit panel ruled in favor of a prisoner who argued that he should have been allowed to file suits in forma pauperis because he had not accrued three prior frivolous filings under the Prison Litigation Reform Act’s three-strikes view. Applying circuit precedent, the majority held that one of the prisoner’s asserted strikes did not qualify because the court had denied the IFP motion and dismissed the complaint as frivolous simultaneously. It also held that strikes that accrue after the filing of the complaint do not count under the three-strikes rule.

In a vigorous dissent, Judge Chagares argued that the majority ignored controlling statutory law and created a circuit split, and he urged the court to grant en banc rehearing:

My learned colleagues have applied the law of this Court, but that jurisprudence was superseded by statute over twenty years ago. Nevertheless, the majority has extended it,
thereby creating a circuit split, mandating adherence to an inflexible rule that many courts in this circuit have abandoned, and increasing litigation (and confusion) over what constitutes
a “strike” for purposes of 28 U.S.C. § 1915(g). I write separately because I believe that the Court should take this case en banc to align our jurisprudence with the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (the “PLRA”) and with the decisions of our sister Courts of Appeals. Adherence to our outdated and rigid twostep procedure — the prism through which courts in this circuit must now divine whether prior dismissals that occurred both in and out of this circuit constitute strikes — should be discarded in favor of the flexible and discretionary approach required by the PLRA.

Joining Fuentes was Smith; Chagares concurred in part and dissented in part. Arguing counsel for the prisoner was Judah Bellin, a recent Penn Law grad who handled the case through the school’s federal appellate externship program, pro bono, and for the government was Michael Butler.

 

US v. Gonzalez — criminal — affirmance — Chagares

After a man killed his son’s ex-wife, and then himself, in the lobby of a Delaware courthouse, prosecutors charged the son and his sister with stalking resulting in death and related counts. Both were convicted and sentenced to life in prison. (Their mother also was convicted, but she died while the appeal was pending.) They appealed their convictions and sentences on 13 different grounds, but today the Third Circuit affirmed. The opinion observed that the case was complicated and raised numerous issues of first impression, and effusively praised District Judge McHugh’s handling of the case.

Joining Chagares were Scirica and Rendell. Arguing counsel were Tieffa Harper of the Delaware federal defender for the son, Jeremy Ibrahim Sr. for the sister, and Jamie McCall for the government.

New opinion — police officer’s questioning unreasonably extended traffic stop [updated]

US v. Clark — criminal — affirmance — Ambro

A police officer stopped a vehicle for traffic violations, questioned the driver, questioned the passenger, pat-down searched the passenger, and, 23 minutes after the stop began, discovered a gun and a marijuana joint on the passenger. Today, the Third Circuit affirmed the suppression of the fruits of the pat-down search, holding that the officer impermissibly extended the traffic stop beyond its mission by questioning the driver about his criminal history and the passenger about other criminal activity after the driver’s authority to drive the vehicle had been confirmed.

Joining Ambro were Jordan and Vanaskie. Arguing counsel were AUSA Norman Gross for the government and Lisa Van Hoeck of the federal defender for the defendant.

 

UPDATE: A second notable Fourth Amendment development today: in the afternoon, the court posted an order granting panel rehearing in US v. Goldstein, and directing the parties to file supplemental briefs addressing cell-site date and the Supreme Court’s subsequent ruling in Carpenter v. United States. Goldstein’s appeal had been decided last year, my post here; he and two co-defendants were convicted for conspiring to kidnap Orthodox Jewish husbands to aid their wives in obtaining divorces.

Four new opinions: a big removal ruling plus three reversals [updated]

Encompass Insurance v. Stone Mansion Restaurant — civil — partial affirmance — Chagares

The federal removal statute provides that, in a diversity case, a case may not be removed if “any of the parties in interest properly … served” is a citizen of the forum state. Here, a forum-state defendant successfully got its case out of state court by initially agreeing to accept service (instead of formal service) but then delaying that service until after it had removed. The plaintiff screamed bloody murder (“nonsensical,” “inconceivable”), but the Third Circuit affirmed the denial of remand on textual grounds. The court acknowledged that its holding may demonstrate “a need for a change in the law,” and it recognized that it could lead to future defendants gaming the removal statute by monitoring dockets and removing between filing and service (a pernicious practice termed “snap removal”) but said that it was up to Congress to fix it.

This opinion strikes me as a big deal and a viable candidate for en banc or certiorari review.

Joining Chagares were Jordan and Fuentes. Arguing counsel were Joshua Guthridge of Robb Leonard for the appellant and Miles Kirshner of Margolis Edelstein for the appellee.

UPDATE: I’ve updated the post to correct an error of mine that appeals whiz Katherine Romano kindly pointed out to me. My original post mistakenly described the defendant as non-diverse rather than a forum defendant.

 

Kane v. Barger — civil rights — reversal — Fuentes

When a police officer interviewed a sexual-assault victim, alone, he allegedly pulled down her shorts and her shirt in order to view her injuries, questioned her “relentless[ly]” about whether her vagina was injured, used his personal cellphone to take pictures of her breasts and buttocks, and lied about photographing her, and admitted he lied because he didn’t want his girlfriend to be jealous. The district court granted summary judgment in favor of the officer on qualified immunity grounds, but today the Third Circuit reversed, emphatically holding that the officer’s actions violated the woman’s right to bodily integrity and that that right was clearly established.

Joining Fuentes were Chagares and Greenberg. The case was decided without oral argument.

 

Levins v. Healthcare Revenue Recovery Gp — civil / FDCPA — partial reversal — Jordan

A provision of the Fair Debt Collection Practices Act requires a debt collector from using any name other than its “true name.” Today, the Third Circuit held that the plaintiffs stated a valid true-name violation where the company left debt-collection messages identifying itself using a name that was neither its full business name, the name under which it usually transacted business, or a commonly used acronym. The court rejected the plaintiffs’ related arguments under FDCPA’s caller-identity and deceptive-means provisions.

Joining Jordan were Ambro and Vanaskie. Arguing counsel were Philip Stern of Stern Thomasson for the plaintiffs and Christian Scheuerman of Marks O’Neill for the debt collector.

 

US v. Mayo — criminal — reversal — Jordan

The Third Circuit today vacated a criminal defendant’s sentence, holding that a conviction under Pennsylvania’s aggravated-assault statute, 18 Pa. Cons. Stat. § 2702(a)(1), does not qualify as a violent felony under the residual clause of ACCA, the Armed Career Criminal Act.

Joining Jordan were Chagares and Fuentes. Arguing counsel were Fritz Ulrich of the MDPA defender for the defendant and Carlo Marchioli of the MDPA US Attorney’s office for the government.

 

Three new opinions, including the Virgin Islands en banc

Vooys v. Bentley (en banc) — jurisdiction — dismissal — McKee

In an almost-unanimous en banc ruling today, the Third Circuit held that Congress statutorily terminated its jurisdiction over any certiorari petition from a final decision of the Supreme Court of the Virgin Islands if the petition was filed on or after the statute’s effective date, overruling its prior ruling in Bason. The lone dissenter, interestingly, was Judge Bibas, the court’s newest member.

Arguing counsel were Rhea Lawrence of Lee Rohn & Associates for the respondents, UVA law students Laura Cooley and Tanner Russo for the petitioners, and Dwyer Arce of Nebraska for the VI bar association as amicus.

Update: the court issued an amended opinion on 8/22 to delete an orphan footnote, so I’ve updated the opinion link.

Update 2: Turns out I was right when, the day the court granted en banc rehearing, I wrote:

While nothing is certain, the posture of this order (sua sponte and prior to panel ruling) strongly suggests that overruling of Bason is likely. En banc grants in similar postures resulted in overrulings in Joyce, Rojas, Al-Sharif, and Quinn in recent years.

 

US v. Hird — criminal — partial affirmance — Nygaard

In a six-defendant consolidated criminal appeal arising out of the prosecution of Philadelphia traffic-court judges and others for ticket-fixing, the Third Circuit affirmed on almost all grounds, reversing only as to one defendant’s sentence with the government’s concurrence. It’s a heavily fact-intensive opinion, rejecting challenges to the sufficiency of the indictment’s fraud allegations and the sufficiency of perjury evidence, among others.

UPDATE: the court issued an amended opinion on January 18, 2019. The link above now goes to the new opinion; the original opinion is here. Unfortunately, the amended opinion did not indicate what changed or even indicate in the caption that this was an amendment.

Joining Nygaard were Greenaway and Fisher. Arguing counsel were Lisa Mathewson, Peter Goldberger, Michael Engle of Stradley Ronon, and Mark Cedrone of Cedrone & Mancano for the defendants and Robert Zauzmer for the government.

 

Murray v. City of Philadelphia — civil — dismissal — Chagares

The Third Circuit today dismissed a pro se appeal brought by a mother seeking to litigate on behalf of her son’s estate, holding that a non-attorney who is not a beneficiary of an estate may not litigate pro se on behalf of the estate.

Joining Chagares were Smith and Fuentes. The case was decided without oral argument, but the opinion thanked former Fisher clerk Ellen Mossman (now Ellen Ratigan) and Will Sachse of Dechert and recent Penn Law grad Chase McReynolds for providing “high-quality assistance” as amicus curiae counsel.

New opinion — petitioner wins ACCA residual-clause appeal

US v. Peppers — criminal sentencing / § 2255 — reversal — Jordan

The Third Circuit today vacated a district court’s denial of relief in a successor post-conviction challenge to a criminal defendant’s sentencing under the residual clause of the Armed Career Criminal Act. The opinion’s introduction ably summarizes:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm. That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions. Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague. He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause. But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson. Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand. First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim. Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such. Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction. We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

Joining Jordan were Chagares and Fuentes. Arguing counsel were MDPA AFD Fritz Ulrich for the petitioner and MDPA AUSA Carlo Marchioli for the government.

New opinion — Third Circuit vacates some of former congressman’s convictions

US v. Fattah — criminal — partial reversal — Smith

[UPDATE: the court issued an amended opinion replacing this one on January 16, 2019, link here.]

In a 142-page opinion, the Third Circuit today affirmed some, vacated some, and reinstated some of the criminal convictions of former Philadelphia Congressman Chaka Fattah Sr. and three co-defendants. The facts and procedural history of the opinion alone spanned over 40 pages, longer than most published opinions.

Joining Smith were Greenaway and Krause. Arguing counsel were Jonathan Ian Kravis for the government, Bruce Merenstein of Schnader for Fattah, and Ann Flannery of Philadelphia, Barry Gross of Drinker Biddle, and Glen Nager of Jones Day for the three co-defendants.

Four new opinions [updated]

The Third Circuit issued four precedential opinions today, all unanimous affirmances — three civil, one criminal:

Tepper v. Amos Financial — civil / FDCPA — affirmance — Ambro

The Third Circuit held today that debt collectors who purchase consumers’ debts from creditors (instead of being hired by the creditors to collect the debts) are subject to the Fair Debt Collection Practices Act. Said the court, “Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—a debt collector.”

Joining Ambro were Jordan and Vanaskie. Arguing counsel were Erik Helbing for the consumers and John Jacko III of Fellheimer & Eichen for the debt collector.

St. Pierre v. Retrieval Masters Creditors — civil / FDCPA — affirmance — Krause

In an issue of first circuit impression, the Third Circuit held that collecting unpaid highway-tolls bills falls outside the scope of the FDCPA, distinguishing prior circuit caselaw that collecting unpaid water and sewer bills falls within its scope. The opinion announced a three-part test for deciding what constitutes a “debt” subject to the FDCPA.

Joining Krause were Greenaway and Jones MDPA by designation. Arguing counsel were Michael Quirk of Berezofsky Law Group for the consumer and Joel Bertocchi of Chicago for the debt collector.

 

Reading Health Systems v. Bear Stearns — civil / arbitration — affirmance — Roth

Here is the first paragraph of today’s opinion:

In this case, we address an emerging trend in the brokerage industry. Ordinarily, broker-dealers, as members of the Financial Industry Regulatory Authority (FINRA), are required by FINRA Rule 12200 to arbitrate all claims brought against them by a customer. Seeking to avoid this obligation to arbitrate, broker-dealers have begun inserting forum selection clauses in their customer agreements, without mentioning the customer’s right to arbitrate. This practice, which has been condoned by several of our sister circuits, deprives investors of the benefits associated with using FINRA’s arbitral forum to resolve brokerage-related disputes.

“[C]ondoned by several of our sister circuits,” perhaps, but not condoned by the Third. Affirming the district court’s order compelling J.P. Morgan to submit to FINRA arbitration, the court expressly split with the Second and Ninth Circuits while siding with the Fourth Circuit.

Joining Roth were Shwartz and Pappert EDPA even though the appeal arose from the EDPA. Arguing counsel were Jonathan Youngwood of Simpson Thacher for the appellant and Mark Strauss of New York for the appellee.

 

US v. Johnson — criminal — affirmance — Fisher

The Third Circuit rejected a series of challenges to a criminal defendant’s conviction and sentence arising from a series of bank robberies. Proceeding after a Supreme Court GVR, the court held that the district court’s failure to instruct the jury on an element of the crime was Alleyne error but that reversal was not warranted under plain error review. The court also held that a prior federal bank-robbery conviction under 18 USC § 2113(d) was a crime of violence under the § 924(c) federal gun-enhancement statute.

Interestingly, the court firmly rejected the government’s argument that the defendant forfeited some of his claims by failing to raise them prior to the Supreme Court’s remand.

Joining Fisher were Jordan and Scirica. Arguing counsel were Ron Krauss for the defendant and Bob Zauzmer for the government.

New opinion — Third Circuit rejects Johnson challenge to Guidelines career-offender designation

US v. Green — criminal — affirmance — Chagares

By statute, 28 USC § 2255, federal prisoners are allowed to file a petition challenging their conviction within one year of a Supreme Court decision recognizing a retroactively applicable “newly recognized” right. In 2015, the Supreme Court held in US v. Johnson that the so-called residual clause of the Armed Career Criminal Act was unconstitutionally vague, and it later held that this rule applied retroactively. The wording of the residual clause of the ACCA statute is similar to the wording of the residual clause of the career-offender provision of the Sentencing Guidelines. So the prisoner in this case filed a petition within a year of Johnson asserting that he was erroneously classified under the Guidelines as a career offender.

Splitting with the Seventh Circuit, the Third Circuit today held that the prisoner’s claim did not involve a right that was “newly recognized” under § 2255 because the court interpreted a subsequent Supreme Court ruling, Beckles v. US, to foreclose application of Johnson to Guidelines residual-clause career-offender challenges. The court also distinguished its ruling last year in In re: Hoffner. (And, on a typography note, the paragraph formatting in the opinion is inconsistent.)

Joining Chagares were Greenberg and Fuentes. Arguing counsel were Fritz Ulrich for the prisoner and John Pelletieri for the government.

[Disclosure: I’ve provided some consulting assistance to counsel for the prisoner.]

Three new opinions

US v. Green IV — criminal — affirmance — Fisher

The Third Circuit today rejected a criminal defendant’s challenge to a vehicle stop. The officer made the stop for speeding after pacing the vehicle from between a mile and two-tenths of a mile away. After the driver refused to consent to a vehicle search, the officer made the driver wait for 15 minutes for a dog to arrive to sniff the vehicle for drugs. The court rejected challenges to both the initial stop and the prolongation.

The court’s analysis of reasonable suspicion turns on statements by the driver that it deems fishy but which strike me as quite unremarkable. For example, the opinion thought a key fact was that, when asked by the officer how he was doing, the driver responded, “I can’t complain,” instead of immediately explaining to the officer that his daughter recently had broken her leg. On the other hand, the opinion’s prolongation section is an admirably lucid discussion of an area of the law that is anything but.

Joining Fisher were Greenaway and Nygaard. Arguing counsel were Kimberly Brunson of the WDPA FPD for the defendant and Michael Ivory for the government.

 

Adorers of the Blood of Christ v. FERC — civil / agency — affirmance — Greenaway

By statute, the D.C. Circuit has exclusive jurisdiction over certain decisions by the Federal Energy Regulatory Commission. After FERC approved a natural-gas pipeline through land owned by a religious organization, the religious organization sued to block the project under the Religious Freedom Restoration Act in the Eastern District of Pennsylvania. The district court dismissed for lack of jurisdiction, and today the Third Circuit affirmed, holding that RFRA does not function as an exception to the exclusive-jurisdiction grant.

Joining Greenaway were Smith and Krause. Arguing counsel were J. Dwight Yoder of Gibbel Kraybill for the religious group, Susanna Chu for FERC, and Elizabeth Witmer of Saul Ewing for the gas company.

 

PA DHS v. USA — civil — affirmance — Greenberg

The Third Circuit today rejected a state agency’s challenge to a district court ruling in favor of the federal government in a dispute over reimbursement of fees for Medicare and Medicaid provider training.

Joining Greenberg were Jordan and Krause. Arguing counsel were W. Scott Foster for the agency and Suzanne Yurk for the government.

New opinion

US v. Ramos — criminal — reversal (for government) — Roth

The Third Circuit today vacated a criminal sentence on the government’s appeal, holding that Pennsylvania’s crime of second-degree assault with a deadly weapon, 18 Pa. CS § 2702(a)(4), is categorically a crime of violence and that the defendant therefore qualified as a career offender under the advisory Sentencing Guidelines (even though he did not under the ACCA).

Joining Roth were Smith and Hardiman. Arguing counsel were Robert Zauzmer for the government and Arianna Freeman for the defendant.

New opinion — Third Circuit finds that misconduct by prosecution doesn’t warrant reversal but that erroneous imposition of a sentencing enhancement does

US v. Welshans — criminal — partial reversal — Restrepo

The Third Circuit today affirmed a defendant’s child-pornography conviction but reversed his sentence.

As to the conviction, the court rejected the defendant’s argument that it violated due process to allow in evidence and argument that the computer files included “deeply abhorrent” videos and images involving very young children. Although the court agreed that the prosecution committed misconduct that was plain, and agreed that the evidence should have been excluded under Rule 403, it denied relief given the prosecution’s overwhelming evidence.

As to the sentence, the panel majority held that the sentencing court erred in applying the Sentencing Guidelines enhancement for obstruction of justice because his acts (moving computer files into the recycling bin when he was told police were on their way) were contemporaneous to his arrest and did not materially hinder the investigation. The majority also held that the government waived the material-hinderance point by first raising it at oral argument.

Joining Restrepo were Ambro in full and Fuentes as to the conviction; Fuentes dissented on the sentencing reversal. Arguing counsel were Renee Pietropaolo for the defendant and Laura Schleich Irwin for the government.

New opinion — Third Circuit rejects government’s belated challenge to suppression

US v. Kalb — criminal — affirmance (for defendant) — Scirica

By statute, the government is allowed to file an interlocutory appeal from an order suppressing evidence; “The appeal in all such cases shall be taken within 30 days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” 18 USC § 3731. In this case, the district court ordered suppression and, more than 30 days later, the government filed a motion to reconsider, which the defendant argued was untimely but the district court denied on the merits. Today, the Third Circuit held that § 3731’s deadline is jurisdictional, and that a motion for reconsideration filed after the deadline does not support jurisdiction to review the suppression order; the court also affirmed the denial of the consideration motion because it relied on arguments the government could have made earlier. Thus, today’s opinion is a rare bird, an affirmance in a criminal appeal that comes out in favor of the defense.

Joining Scirica were Jordan and Hardiman. Arguing counsel were Robert Zauzmer of the EDPA US Attorney’s office for the government and Brett Sweitzer of the EDPA federal defender’s office for the defendant, both stellar. The argument audio is here.

New opinions — three affirmances

Bonilla v. Sessions — immigration — affirmance — Shwartz

The Third Circuit denied a El Salvadoran citizen’s petition for review of removal, rejecting the man’s argument that his right to due process was denied when reasonable-fear-screening proceedings before the immigration judge went forward without his counsel. Although the hearing notice said that counsel should appear with the client at the hearing, the lawyer (unidentified in the opinion except to clarify that appellate counsel was different) “assumed it would be held telephonically.” The court did not decide whether parties have a right to counsel at a reasonable-fear hearing, denying relief instead because the man had notice of his right to counsel and failed to show prejudice.

Although today’s opinion does not say so, Pacer shows that the panel issued a non-precedential opinion in the case on March 15. Two months later, after the mandate had issued, the government filed a motion to publish, which the panel granted. Motions to publish are an under-utilized tool, in my view. [UPDATE: after my original post the order granting the motion to publish was posted on the court’s website.]

Joining Shwartz were Jordan and Krause. The case was decided without argument.

 

US v. Foster — criminal — affirmance — Jordan

The Third Circuit today affirmed two criminal convictions, rejecting five different challenges to their convictions and sentences: a Fourth Amendment issue, a 404(b) admissibility claim, a sufficiency-of-the-evidence challenge to evidence of constructive possession of a firearm, and two firearm-use sentencing-enhancement claims.

Joining Jordan were Shwartz and Krause. Arguing counsel were Renee Pietropaolo of the WDPA federal defender for one defendant, Eleni Kousoulis of the DE federal defender for the other, and Elizabeth Van Pelt of the DE US Attorney’s office for the government.

 

US v. Shaw — criminal — affirmance — Restrepo

Finally, the Third Circuit upheld a former prison guard’s convictions for sexually assaulting an inmate and obstruction of justice. The court rejected challenges to the sexual-assault instructions (splitting with the Tenth Circuit), the sexual-assault sufficiency, two evidentiary challenges, and a speedy-trial claim.

Joining Restrepo were Smith and McKee. Arguing counsel were Robert Pickett of Pickett and Craig for the defendant and Desiree Grace of the NJ US Attorney’s office for the government.

New opinion — Third Circuit rejects legislative-immunity defense [updated]

US v. James — criminal — affirmance — Smith

The Third Circuit today upheld a district court’s ruling a Virgin Islands legislator may be tried for fraud and embezzlement, rejecting the defendant’s argument that his alleged conduct (skimming and phony billing in connection with a legislative project, basically) was protected by legislative immunity.

Joining Smith were McKee and Scirica. Arguing counsel were Vijay Shanker of the DOJ Appellate Section for the government and Brandan Hurson of the USVI FD for the defendant.

[Note: my original post incorrectly stated that the court upheld the defendant’s convictions, but this was an interlocutory appeal and he has not been tried yet. My thanks to Howard Bashman for pointing out the error to me.]

New opinions — a de facto life sentence for a juvenile offender violates the Eight Amendment, and sexting between consenting teenagers is enough to support deportation

United States v. Grant — criminal / sentencing — reversal in part — Greenaway

In 2012, the Supreme Court held in Miller v. Alabama that mandatory sentences of life without parole for juvenile offenders violate the Eighth Amendment, Today, in a major juvenile-sentencing decision, the Third Circuit extended Miller to hold that a 65-year sentence for homicide crimes committed at age 16 was unconstitutional. From the introduction:

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.

The court held, ” A term-of-years sentence without parole that meets or exceeds the life expectancy of a juvenile offender who is still capable of reform,” which the court held includes all non-homicide offenders, “is inherently disproportionate and therefore violates the Eighth Amendment under both Miller and Graham.” The court joined the Seventh, Ninth, and Tenth Circuits, and split with the Eighth, on the applicablity of Miller and Graham to de facto life sentences.

Joining Greenaway were Cowen in part and Padova EDPA by designation. Judge Cowen dissented in part, joining the Eighth Amendment holding in full but disagreeing with the majority’s denial of sentencing relief as to additional counts based on the sentencing-package doctrine.

Arguing counsel were Lawrence Lustberg of Gibbons for the appellant and Bruce Keller for the government.

 

Moreno v. AG — immigration — affirmance — Vanaskie

Today, the Third Circuit held that a Pennsylvania conviction for possessing child pornography, 18 Pa. Cons. Stat. § 6312(d), is a crime involving moral turpitude supporting removal. The petitioner was a 49-year-old man who lived legally in the U.S. since age 12, pled guilty to a single count, and was sentenced to probation.

Applying the categorical approach (the opinion in a footnote echoed concerns raised about the categorical approach in other recent Third Circuit opinions), the court held that the least culpable conduct under the statute — consensual ‘sexting’ between an 18 year-old and a 17 year-old — is morally turpitudinous. But the opinion seemed to base that conclusion on little more than the fact that such conduct is criminal, which strikes me as questionable. Lots of conduct is subject to prosecution without being “inherently base, vile, or depraved.” Does anyone really believe that sexting between two consenting teenagers is depraved?

Joining Vanaskie were Shwartz and Fuentes. Arguing counsel were Wayne Sachs of Philadelphia for the petitioner and Jaclyn Shea for the government.

 

 

En banc Third Circuit rejects sentencing enhancement for mechanic

The en banc Third Circuit today decided a criminal-sentencing issue, and a three-judge panel decided the remaining sentencing issues in the case.

A quick recap of the procedural history may help. In June of last year, a Third Circuit panel reversed in part in a criminal sentencing appeal; Judge Greenaway dissented in part, arguing that the court should have reversed on an additional ground. The court then granted rehearing en banc with argument limited to the issue on which Judge Greenaway had dissented. A link to the oral argument is here, and I briefly discussed one side’s argument here.

Today, the court issued two opinions: an en banc opinion by Judge Greenaway and a panel opinion on the other issues by Judge Shwartz.

US v. Douglas (en banc opinion) — criminal sentencing — reversal — Greenaway

The en banc Third Circuit today held that an airline mechanic with access to restricted airport areas did not hold a position involving professional or managerial discretion under the § 3B1.3 of the US Sentencing Guidelines. The court refined the approach it took to analyzing when to apply that enhancement.

There were 7 judges in the majority, 4 dissenting. (The case was argued in October, so Judge Bibas did not participate.) Joining Greenaway were Smith, McKee, Ambro, Jordan, Krause, and Restrepo. The four dissenters split into two opinions: one by Shwartz joined by Chagares and Vanaskie, the other by Hardiman alone.

Arguing counsel were Arnold Bernard of Pittsburgh for the defendant and MIchael Ivory for the government.

US v. Douglas (panel opinion) — criminal sentencing — reversal in part — Shwartz

The panel issued an opinion that, according to a footnote, “essentially restates the original Panel opinion except for the issue addressed by the Court en banc.” My summary of the prior opinion is here.

 

New opinion — Third Circuit affirms criminal sentence

US v. Huynh  — criminal — affirmance — Hardiman

I’m slow posting today’s case because I had a Third Circuit oral argument today, pinch-hitting for a wonderful lawyer who realized he would be out of town the day of argument.

The Third Circuit today held that the government did not breach its plea agreement with a criminal defendant and the district court did not err in imposing sentencing-guidelines enhancements for being an organizer/leader and for relocating to avoid detection.

Joining Hardiman were Vanaskie and Shwartz. The case was decided without oral argument.

New opinion — Third Circuit finds computer search violated Fourth Amendment but affirms on good-faith grounds

U.S. v. Werdene — criminal — affirmance — Greenaway

The Third Circuit today held that the government violated the Rule 41 of the Federal Rules of Criminal Procedure and the Federal Magistrates Act, and thus the Fourth Amendment, when it used “a form of government-created malware” (!) to search thousands of computers nationwide using a single warrant issued in Virginia. But the court affirmed, holding that the violation was shielded by the good-faith exception to the exclusionary rule.

Judge Nygaard concurred to discuss an important procedural point: whether an appellate court may affirm on a ground that the appellee conceded below. He writes, ” This is an interesting question and one that in my nearly three decades on this court I have not encountered.” He ends: ” I point out my thoughts on this matter nonetheless solely to remind practitioners of that old adage, ‘you cannot have it both ways.’ In my opinion, conceding a fact or a legal point in the District Court prevents us from affirming on that basis.”

Joining Greenaway were Nygaard and Fisher. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Michelle Morgan for the government.

 

New opinion — Third Circuit vacates insider-trading sentence

US v. Metro — criminal — reversal — Jordan

The Third Circuit today vacated a criminal sentence for insider trading due to insufficient factual findings in support of the district court’s decision to attribute others’ insider-trading gains to the defendant for sentencing purposes. The gist: ” When the scope of a defendant’s involvement in a conspiracy is contested, a district court cannot rely solely on a defendant’s guilty plea to the conspiracy charge, without additional fact-finding, to support attributing co-conspirators’ gains to a defendant.”

Joining Jordan were Hardiman and Scirica. Arguing counsel were Lawrence Lustberg of Gibbons for the defendant and Glenn Moramarco for the government.

New opinion — bank robbery by intimidation is a crime of violence

United States v. Wilson — criminal sentencing — affirmance — Jordan

“If it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a ‘crime of violence’ under the United States Sentencing Guidelines.” This, the opening sentence of today’s opinion, might be the most Judge-Jordan-ish opening sentence I’ve ever read, and I mean that as praise.

The opinion also held that the federal bank-robbery statute requires knowing conduct and that applying a sentencing enhancement was not plain error because it did not the affect the  sentence.

Joining Jordan were Hardiman and Scirica. Arguing counsel were Christy Martin of the EDPA federal defender for the defendant and Robert Zauzmer for the government.

Two new opinions

US v. Graves — criminal — affirmance — Roth

The Third Circuit today affirmed a criminal conviction and sentence, rejecting the defendant’s arguments that his motion to suppress should have been granted and that he should not have been sentenced as a career offender. The court deepened a circuit split over a subsidiary legal question, the level of force required to sustain a generic federal robbery conviction. It also held that the most important factor in determining the elements of a generic offense was the approach of the majority of states, not the Model Penal Code.

Joining Roth were Hardiman and Fisher. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and Stephen Cerutti II for the government.

 

Constitution Party of Pa. v. Cortes — elections  — reversal — Roth

Last year, the Third Circuit affirmed a ruling striking down certain laws that made it difficult for third parties to get on the ballot. On remand, the district court set new signature-gathering standards for third-party candidates, but it made no factual findings and gave no explanation for the standards it chose. Today, the Third Circuit held that this lack of fact finding requires reversal.

Joining Roth were Smith and Jordan. Arguing counsel were Oliver Hall of the Center for Competitive Democracy for the parties and Claudia Tesoro of the Pa. A.G.’s office for the appellee.

Two new opinions, including a big qualified-immunity reversal

Kedra v. Schroeter — civil rights — reversal — Krause

A Pennsylvania state trooper died during a routine firearms training when the instructor allegedly failed to check whether a gun was empty before pointing it at the trooper’s chest and pulling the trigger. The slain trooper’s wife sued the instructor under 42 USC § 1983, alleging a due process state-created-danger claim. The district court ruled that the instructor was entitled to qualified immunity because he did not know that the gun was loaded. Today, the Third Circuit reversed, holding that the obviousness of a risk is relevant to prove that the state actor was aware of that risk and that here the wife sufficiently alleged the instructor’s awareness.

Judge Fisher concurred, although in my view it would have been more accurate to say he concurred in part and concurred in the judgment. He argued, among other points, that the majority’s reliance on the obviousness of the risk and the officer’s training was mistaken. He wrote:

I am concerned by the impact that the breadth of the majority’s decision could have on the law of qualified immunity. I am equally troubled by the recent trajectory of this Court’s jurisprudence.

Fisher closed by noting, “Perhaps the full Court will revisit the qualified immunity framework to reexamine whether it is consistent with the history of the Due Process Clause.” (Judge Fisher assumed senior status on February 1, and senior judges do not vote on whether to grant en banc rehearing.)

Joining Krause was Melloy CA8 by designation; Fisher concurred. Arguing counsel were Michael Quirk of Williams Cuker for the wife and Claudia Tesoro of the state AG’s office for the instructor.

 

US v. Ferguson — criminal — affirmance — Hardiman

The Third Circuit held that the district court did not commit plain error when it mentioned a defendant’s bare arrests at sentencing, distinguishing Mateo-Medina.

Joining Hardiman were Jordan and Scirica. The case was decided without oral argument.

New opinion — Third Circuit grants resentencing in Guidelines-interpretation appeal

US v. Ley — criminal sentencing — reversal — Fisher

The Third Circuit today ruled in a criminal defendant’s favor in his appeal challenging the district court’s interpretation of a sentencing-guidelines provision. The introduction of the opinion succinctly explains the issue:

This case concerns the criminal history provisions of the Sentencing Guidelines. A defendant’s criminal history is calculated by assigning points for prior sentences. The Guidelines instruct that prior sentences “always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest.” United States Sentencing Commission, Guidelines Manual § 4A1.2(a)(2) (USSG). The question presented here is whether a traffic stop, followed by the issuance of a summons, constitutes an intervening arrest in the context of the criminal history Guidelines.

The court held that issuance of a summons does not count as an “arrest” for this purpose, joining three other circuits and splitting with the Seventh. The court also rejected the government’s argument that defendant waived the issue by failing to object to a supplemental PSR addendum.

Joining Fisher were Hardiman and Roth. Arguing counsel were Samantha Stern of the WDPA federal defenders for the defendant and Laura Irwin for the government.

 

New opinion — criminal sentences can’t include job restrictions that last longer than supervised-release maximum

US v. Poulson — criminal — partial reversal — Rendell

The Third Circuit today reversed under plain error a criminal sentence that barred the defendant from working in real estate for longer than he was subject to supervised release:

he District Court was *** only authorized to impose a maximum term of three years’ supervised release on Poulson. Because the District Court imposed, as a term of supervised release, an occupational restriction lasting five years, this part of Poulson’s sentence amounted to plain error.

The court rejected the defendant’s challenge to the sentencing court’s Guidelines finding on the number of the defendant’s fraud victims who suffered a substantial financial hardship.

Joining Rendell were McKee and Vanaskie. The case was decided without oral argument.

4 new opinions, including two immigration reversals

Uddin v. AG — immigration — reversal — Rendell

The Third Circuit today granted an immigration petition to review, holding that the BIA erred when it found a Bangladesh citizen ineligible for withholding of removal. The BIA had deemed him ineligible because he was a member of a major political party, some of whose members had committed terrorist acts.

The Third Circuit held that membership in a party whose members had committed terrorism wasn’t enough — the BIA had to find that the terrorist acts were authorized by party leaders. Analogizing to American politics, the court observed, “If a single member of the Democratic or Republican Party committed a terrorist act, we would not impute terrorist status to the entire group, absent some showing that party leadership authorized the act.”

The court joined the reasoning of a 2008 Seventh Circuit opinion authored by just-retired Judge Posner. Not surprisingly, today’s opinion quotes Posner at length and identifies him by name.

Joining Rendell were Greenaway and Shwartz; Greenaway also concurred separately. Arguing counsel were Visuvanathan Rudrakumaran of NY for the petitioner and Daniel Smulow for the government.

UPDATE: The Court issued an amended opinion on September 25. The opinion link has been updated; the change is identified in this order.

 

Mateo v. AG — immigration — reversal — Vanaskie

The Third Circuit held that a non-citizen’s Pennsylvania conviction for robbery of a motor vehicle did not support his removal. The removal order was premised on the vehicle-robbery conviction being a crime of violence, but the Third Circuit held that the crime-of-violence standard was unconstitutionally vague. The court joined three other circuits on this point, splitting with the Fifth Circuit. The court further held that the vagueness standard is no lower in immigration cases than it is in criminal cases.

Joining Vanaskie were McKee and Jordan. Arguing counsel were Tracey Hubbard of Scranton for the petitioner and Matthew Connelly for the government.

 

US v. Hodge — criminal — reversal in part — Chagares

After a Virgin Islands man used a gun to rob an armored vehicle, the government charged him with a separate Virgin Islands gun count for each of three crimes he committed during the offense. Today, the Third Circuit vacated two of those non-federal convictions on double jeopardy grounds (but it rejected the analogous argument as to two federal gun counts). The court granted relief even though the defendant received a single sentence for all three counts, similar to the federal practice of imposing concurrent sentences. The court rejected the defendant’s many other challenges.

Joining Chagares were Jordan and Hardiman. Arguing counsel were Richard Della Fera of Florida for the defendant and David White for the government.

 

Moody v. Atlantic City Bd. of Education — employment discrimination — reversal — Shwartz

An employee sued her employer, alleging that a fellow employee had sexually harassed her and the employer retaliated against her when she complained.

On the harassment claim, the employer’s liability turned on whether the alleged harasser was her supervisor even though he didn’t hire and couldn’t fire her. The plaintiff was a substitute janitor who worked at different sites; the alleged harasser had the power to decide if she got work at one of those sites, and in a recent several-month period 70% of her work had been at that site. The district court granted summary judgment to the employer based its conclusion that the alleged harasser was not her supervisor.

Today, a divided Third Circuit panel reversed, holding that the plaintiff’s allegations were sufficient to survive summary judgment on whether the alleged harasser was her supevisor. Judge Rendell dissented on this point, arguing that in light of a recent Supreme Court case the majority was “simply incorrect.”

On the retaliation claim, the panel was unanimous that reversal was required, holding that her allegation that her hours were reduced right after she complained was sufficient.

Joining Shwartz was Greenaway; Rendell dissented in part. Arguing counsel were Samuel Dion of Dion & Goldberger for the plaintiff and Rachel Conte of Riley and Rile for the employer.

New opinions — wiping out a habeas grant and allowing discovery on the fairness of stash-house stings [updated]

The Third Circuit issued two precedential opinions yesterday, both reflecting the court’s fundamental centrism.

 

Mathias v. Superintendent — habeas corpus — reversal — Krause

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

The Third Circuit held that the district court erred in granting relief based on counsel’s failure to object to a faulty jury instruction involving accomplice liability. The court held that the state court’s ruling that the petitioner did not suffer prejudice was not an unreasonable application of clearly established law because two pertinent Supreme Court rulings were in tension. The court also rejected a related due process claim.

The court also held that the time-limit for cross-appealing is not jurisdictional and is waiveable under a standard set out in the opinion. It further held (as local rule 22.1(d) already provided) that petitioners need a certificate of appealability to cross-appeal, splitting with the Seventh Circuit.

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Maria Pulzetti of the EDPA federal defender for the petitioner and Jennifer Andress of the Philadelphia DA’s office for the state.

UPDATE: On November 20, the court issued an amended opinion. The link at the top of this post now goes to the new opinion. The old opinion is here, and the court’s order helpfully identifying the changes is here. The heart of the change is new footnote 4.

 

US v. Washington — criminal — partial affirmance — Fuentes

This appeal arose out of a stash house reverse sting. A what? The majority opinion explains:

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington [the defendant], contributing to a total sentence of 264 months in prison—far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court—and now again on appeal—people of color are allegedly swept up in the stings in disproportionate numbers.

The panel majority rejected the defendant’s argument that applying the mandatory-minimum sentence violated due process. Judge McKee dissented on this point, arguing that applying the minimums based on fictional drug amounts conjured by law enformcement was unfair, irrational, and not intended by Congress.

The panel unanimously remanded to allow the defendant to pursue discovery in support of a selective-enforcement claim, joining the Seventh Circuit to apply a lower standard than that applicable to selective prosecution claims.

Joining Fuentes was Cowen; McKee dissented in part. Arguing counsel were Mark Greenberg for the defendant and Eric Henson for the government.

Three new opinions

US v. Martin — criminal sentencing — affirmance — Hardiman

Can both of these things be true at once?

  • A criminal sentence is “based on a sentencing range that has been subsequently lowered by the Sentencing Commission,” but
  • the Guidelines chance does NOT have “the effect of lowering the defendant’s applicable guideline range.“

That is, can a sentence be “based on” a guidelines range without that range being the “applicable” guidelines range?

Today the Third Circuit answered that question ‘yes,’ and on that basis it held that the defendant was not entitled to retroactive application of a Guidelines amendment. The defendant’s guilty plea and the sentence he received were based on the drug quantity involved (impacted by the Guidelines amendment), but the sentencing court had found that his advisory guidelines range should be based on his career offender status (not impacted by the Guidelines amendment).

Joining Hardiman were Roth and Fisher. The case was decided without oral argument.

 

McNelis v. PP&L — employment — affirmance — Hardiman

The Third Circuit ruled that employment-related regulations promulgated by the Nuclear Regulatory Commission trumped the Americans with Disability Act.

Joining Hardiman, again, were Roth and Fisher, and again the case was decided without argument.

 

In re: Howmedica Osteonics — civil / mandamus — reversal — Krause

Successful mandamus petitions are rare. Successful mandamus petitions turning on previously not-very-settled questions of law are rarer still. But the Third Circuit granted such a petition today.

The district court ruling at issue involved forum-selection agreements. The Supreme Court has said such agreements usually must be enforced, but the question in this case was what to do when some of the defendants had signed non-compete clauses with forum-selection clauses, but some hadn’t. The district court decided not to enforce the forum-selection clauses against any of the defendants. Today, the Third Circuit held that this was a clear error, and ruled that the claims against the forum-selection-clause defendants will proceed in one forum while the claims against the no-clause defendants will proceed in another.

Joining Krause were Scirica and Fuentes. Arguing counsel for the mandamus petitioners was Robert Carty Jr. of Texas. Arguing for various defendants were Jed Marcus of Bressler Amery, Anthony Haller of Blank Rome, and Jeffery Brown of California.

 

New opinion — Third Circuit invalidates joint-and-several forfeiture order

US v. Gjeli — criminal — partial reversal — Jordan

The Third Circuit today vacated criminal forfeiture orders that imposed joint and several forfeiture liability on two co-defendants. Today’s ruling was based on the Supreme Court’s decision earlier this year in Honeycutt v. United States, which the opinion said effectively overturned prior circuit precedent. While Honeycutt interpreted only one federal forfeiture statute, the court held that its reasoning applies equally to two others. The court affirmed on two other sentencing grounds.

Joining Jordan were Krause and Stearns D.Mass by designation. The case was decided without oral argument.

New opinions — catching up on last week’s ten opinions, including another ACA blockbuster and several notable reversals

Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.

And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …

 

US v. Wrensford [July 31] — criminal — reversal in part — Shwartz

The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.

 

Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro

In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.

 

EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares

The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:

The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.

Joining Chagares were Ambro and Fuentes. The case was decided without oral argument.

 

Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns

The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.

Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.

 

Blackledge v. Blackledge [August 3] — family — affirmance — Krause

The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.

Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”

 

Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen

The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.

Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.

Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.

 

US v. Ferriero [August 4] — criminal — affirmance — Scirica

The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.

Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.

 

US v. Chapman [August 4] — criminal — affirmance — Greenaway

The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”

Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.

 

In re: AE Liquidation [August 4] — civil — affirmance — Krause

The opinion’s introduction says it best:

This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***

Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.

 

Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell

A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.

Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.

New opinion — when courts impose supervised release on defendants who are getting deported anyway, they need to explain why

US v. Azcona-Polanco — criminal sentencing — affirmance — Restrepo

Immigrants who have been convicted of a deportable offense are presumptively exempt from discretionary supervised release — deportation is essentially automatic, so imposing supervised release mainly serves to enhance any subsequent punishment for illegal reentry. But courts are allowed to impose supervised release on defendants who will be deported in individual cases, on the theory that the extra punishment will be an extra deterrent against re-entry.

That’s all backdrop for the sentencing procedure question the court answered yesterday: when judges impose supervised release on defendants who will be deported, despite the presumption, do they need to explain why? In a clear and thorough opinion, the Third Circuit said yes: they must acknowledge the presumption and state their reasons for nevertheless imposing it. In the case before it, the sentencing judge did neither, but the Court held that this failure was not plain error given the defendant’s prior criminal history including a prior illegal re-entry.

Joining Restrepo were Ambro and Vanaskie. The case was decided without oral argument.

New opinions — Third Circuit recognizes right to film police in public [updated]

Fields v. City of Philadelphia — civil rights — reversal — Ambro

In a landmark free-speech ruling, the Third Circuit today held that individuals have a First Amendment right to film police activity in public. A panel majority further held that the officers who did the filming here were entitled to qualified immunity from suit because the right had not been sufficiently clearly established; Judge Nygaard dissented on this ground. The court remanded for the district court to decide whether the city was subject to municipal liability.

Joining Ambro was Restrepo; Nygaard joined in part and dissented in part. Arguing counsel were Molly Tack-Hooper of ACLU-PA for the plaintiffs and Craig Gottlieb of the Philadelphia city Law Department for the defendants. A host of top-flight appellate lawyers were on the briefs on the ACLU’s side, including Jonathan Feinberg of Kairys Rudovsky, Alicia Hickok of Drinker Biddle, and Ilya Shapiro of Cato Institute.

Early commentary by Eugene Volokh at Volokh Conspiracy here and by Mark Joseph Stern at Slate here.

 

US v. Stimler* — criminal — affirmance — Roth

The Third Circuit affirmed the convictions of three Orthodox Jewish rabbis who were convicted of conspiracy to commit kidnapping for their role in “a scheme through which they … sought to assist Orthodox Jewish women to obtain divorces from recalcitrant husbands.”  The court rejected 8 different challenges to the convictions; Judge Restrepo wrote separately to disagree with the panel majority’s conclusion that investigators’ warrantless use of cell site location information did not violate the Fourth Amendment, but would have affirmed anyway under the good-faith exception.

Joining Roth was Chagares; Restrepo concurred in the judgment in part. Arguing counsel were Nathan Lewin of Washington DC for one defendant, Aidan O’Connor of Pashman Stein for the second, and Peter Goldberger for the third. Arguing for the government were Norman Gross and Glenn Moramarco of the NJ US Attorney’s office.

Early news coverage here and here.

UPDATE: on July 17 the court issued an order stating that the government “has advised of factual errors contained within the opinion” and that in light of the letter the Court will issue an amended opinion. It states that the amendment does not alter the judgment.

*The link at the top of this entry now goes to the amended opinion issued July 17. The original, withdrawn opinion is here.

UPDATE 2: On August 30 the court granted panel rehearing for one of the co-defendants on the Fourth Amendment issue that Judge Restrepo had written separately on.

UPDATE3: on January 21, 2019, the court issued a new opinion on rehearing that now held that use of the cell-site location data violated the Fourth Amendment but still affirmed under the good faith exception.

Three new opinions [updated]

US v. Jackson — criminal — reversal — Cowen

The government appealed from the criminal sentences imposed on a husband and wife for abusing their foster children. A divided Third Circuit reversed for resentencing on a host of grounds.

The 82-page majority opinion noted:

This case implicates a number of rather unusual sentencing issues. This is not surprising because Defendants were not convicted and sentenced for committing enumerated federal crimes of the sort that federal courts consider on a regular basis. Instead, they were convicted and sentenced in federal court for state law offenses “assimilated” into federal law pursuant to a federal statute, the ACA.

The panel majority held that the district court erred in concluding that the federal sentencing guideline for assault was not sufficiently analogous to use to calculate the defendants’ guideline range. The district court also erred in refusing to make sentencing-related findings of fact beyond the findings found by the jury at trial. And it erred some more by “focusing on state sentencing principles to the exclusion of basic federal sentencing principles.” Judge McKee dissented, mainly to disagree with the majority on the analogous-guideline point.

Finally, Judge Cowen’s majority opinion concluded that “we do conclude” that the sentences were substantively unreasonable. But a footnote in the majority opinion stated that Judge Fuentes “would vacate” on the preceding procedural grounds “without reaching” substantive unreasonableness. (A footnote in Judge McKee’s dissent states that he refrains from reaching the issue.) So is there a precedential holding on substantive unreasonableness? It’s possible to argue either way, and I expect future litigants will do exactly that. I think the substantive reasonableness section probably is precedential, but the opinion’s failure to be clear on that point is strange.

Joining Cowen was Fuentes; McKee dissented with some harsh language for the government. Arguing counsel were John Romano of the NJ US Attorney’s office for the government, Herbert Waldman of Javerbaum Wurgaft for the wife, and Louise Arkel of the NJ federal defender for the husband.

 

Knick v. Township — civil — affirmance — Smith

A Pennsylvania township enacted an ordinance that authorizes officials to enter any property “for the purpose of determining the existence of and location of any cemetery” and compels private cemeteries to open themselves to the public during daylight hours.

The Third Circuit described the ordinance as “extraordinary and constitutionally suspect,” noting “it is difficult to imagine a broader authorization to conduct searches of privately owned property” and urging the township to abandon it. But the court affirmed dismissal of a suit challenging the ordinance, holding that the plaintiff lacked standing to raise a facial Fourth Amendment challenge because her rights were not violated and that her Fifth Amendment takings claim is not ripe because she had not first sought compensation under the state’s inverse-condemnation procedure. (Embarrassingly, the court noted that the standing issue had not been raised by the township, and that it did raise a “curious” argument that the plaintiff failed to satisfy Monell because she failed to show a cognizable injury.) The opinion helpfully clarifies the different burdens for facial and as-applied challenges and distinguishes facial takings from facial challenges.

Smith was joined by McKee and Rendell. Arguing counsel were J. David Breemer of the Pacific Legal Foundation for the plaintiff and Thomas Specht of Marshall Dennehey for the township defendants.

 

Taha v. County — class action — affirmance — Greenberg

The Third Circuit affirmed an order granting class action certification in a suit against defendants who created a web page that made available information about over 60,000 people who had been held at a county jail, including persons whose records were expunged. The defendants had argued that the court erred in deciding certification after ruling on a motion for partial summary judgment, but the court held that this challenge was waived because it was not raised below. The defendants also argued that the court erred in certifying a punitive damages class on several grounds, including standing and predominance, but the court disagreed.

Joining Greenberg were Greenaway and Shwartz. Arguing counsel were Burt Rublin of Ballard Spahr for the county defendants and Robert LaRocca of Kohn Swift for the plaintiffs.

Two new opinions

US v. Johnson — criminal — affirmance — Fuentes

The Third Circuit rejected a defendant’s argument that a district court lost jurisdiction to revoke his supervised release when a different district court revoked an unrelated concurrent term of supervised release. In rejected the argument that concurrent terms of supervised release merge, The court joined the Second and Fifth Circuits. The court also rejected the defendant’s argument that the district court lacked jurisdiction to revoke him because he was living in the other district and his release was being supervised by the other district.

Joining Fuentes were Greenaway and Shwartz. Arguing counsel were Omodare Jupiter of the VI FPD for the defendant and David White for the government.

 

Blanyar v. Genova Prods. — civil — affirmance — Vanaskie

The introduction says it best:

Appellants, former employees of Appellee Genova
Products Inc. (“Genova”), challenge the District Court’s
decision to dismiss their putative class action for medical
monitoring as barred by the applicable two year statute of
limitations. While acknowledging that their exposure to the
alleged toxic substances upon which they base their medical
monitoring claims ended more than two years before
commencing this litigation, Appellants contend that the
limitations period should have been tolled by the discovery
rule and should not have begun to run until they discovered
the toxicity of the substances present in the Genova
workplace, a discovery they claim was first made less than
two years before this action was initiated. The District Court
concluded that the discovery rule did not save Appellants’
action because information concerning the dangers of the
chemicals to which Appellants were exposed had been widely
available for decades before they filed their complaint. For
the reasons that follow, we will affirm the dismissal of
Appellants’ lawsuit.

Joining Vanaskie were Fisher and Krause. Arguing counsel were Sol Weiss of Anapol Weiss for the class plaintiffs and Justin Bagdady of Michigan for the class defendants.

Three new opinions plus an en banc grant

In re: Zoloft — civil — affirmance — Roth

“This case involves complicated facts, statistical methodology, and competing claims of appropriate standards for assessing causality from observational epidemiological studies. Ultimately, however, the issue is quite clear.” So said the Third Circuit today, affirming a district court’s decision to exclude an expert witness in a high-stakes drug-liability case.

Joining Roth were Chagares and Restrepo. Arguing counsel were former assistant to the Solicitor General David Frederick of Kellogg Hansen for the appellants and Mark Cheffo of Quinn Emanuel for the appellees.

 

US v. Fattah Jr. — criminal — affirmance — Smith

In this latest chapter in the Chip Fattah saga, the Third Circuit ruled that while an FBI agent’s media disclosures about Fattah were wrongful, Fattah was not entitled to relief.

Joining Smith were Hardiman and Krause. Arguing were Eric Gibson for the government, Fattah for himself, and Ellen Brotman as amicus appointed by the court for Fattah. The court thanked Brotman for her “excellent advocacy” which the court noted she provided on an expedited basis.

 

Gillette v. Prosper — prisoner civil rights / jurisdiction — dismissal — Hardiman

The Third Circuit dismissed for lack of jurisdiction a prisoner’s interlocutory appeal challenging denial of his request under the PLRA that his case be decided in district court by a three-judge court.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Joseph DiRuzzo III for the prisoner and Kimberly Salisbury for the warden.

 

US v. Douglas

The Third Circuit granted rehearing en banc in US v. Douglas, with oral argument “limited to the application of the enhancement for abuse of position of trust under U.S.S.G. 3B1.3.” My coverage of the now-vacated panel ruling is here — Judge Greenaway had dissented from the panel majority’s holding on this point.

Two messy new opinions

Oliver v. Roquet — civil rights / civil commitment — reversal — Krause

This appeal arose after a state psychologist recommended an unfavorable action against a civil detainee in a report that referred critically to the detainee’s pro se litigation and legal assistance for other detainees. The psychologist said the detainee’s legal work could be “counter-therapeutic” for him.

In an interlocutory appeal, the Third Circuit today held that the district court erred in denying the psychologist’s qualified-immunity motion. The court first rejected the detainee’s argument that the psychologist’s assertion of qualified immunity came too late because it was not included in her first motion to dismiss.

The court then held that the detainee’s First Amendment claim failed to adequately allege causation. A state actor’s mere consideration of protected activity normally is enough to plead retaliation in a retaliation case, but more than mere consideration of protected activity is required to state a valid retaliation claim against a mental health professional at a state institution for the civilly committed: “There must be particular facts alleged that allow the court to reasonably infer it is the protected activity itself, and not simply medically relevant behavior associated with that activity, that formed the basis of the defendant’s adverse action.”

Finally, the court alternatively held that the detainee’s asserted right was not clearly established.

Joining Krause were Ambro and Smith. Arguing counsel were David DaCosta of the NJ Attorney General’s office for the psychologist and Stephen Fogdall of Schnader as amicus counsel for the detainee. The court thanked Fogdall “for accepting this matter pro bono and for the quality of his briefing and argument in this case.”

 

Fahie v. People — criminal — affirmance — Jordan

The Third Circuit today affirmed a Virgin Islands criminal conviction. The court held that it was not an abuse of discretion for the court to issue an aiding-and-abetting instruction even though the co-defendant had pled to being an accessory after the fact, rejecting the defendant’s argument that the plea meant there was no one for him to abet.

The case was unusual in two ways. First, the Third Circuit granted certiorari to review the Virgin Islands ruling after Congress revoked the court’s cert. jurisdiction. But the court applied its prior precedent to hold that the revocation did not apply to cases that had commenced in the Virgin Islands courts before the revocation, precedent the Virgin Islands bar association decried in an amicus brief as “absurd.” Second, the court dismissed as improvidently granted a second issue on which the court had granted certiorari, concluding that the issue turned in territorial rather than federal law. A bit of a mess.

Joining Jordan were Chagares and Hardiman. Arguing counsel were David Cattie for the petitioner, Su-Layne Walker of the VI Attorney General’s office for the people, and Edward Barry for the bar association amicus.

New opinions — Third Circuit reverses in an immigration appeal and rejects the government’s jurisdictional challenge in a criminal appeal

Myrie v. AG — immigration — reversal — Ambro

Jarndyce and Jarndyce, I just learned from Wikipedia, is “a fictional court case from the novel Bleak House by Charles Dickens” which “has become a byword for seemingly interminable legal proceedings.”

The Third Circuit invoked that fictional case today in an opinion sending back — for a fifth time — a Panamanian citizen’s challenge to removal. From the start, the man has argued that, if sent back to Panama, gangs there would target him with impunity. This time, the basis for reversal was that the Board of Immigration erroneously reviewed only for clear error his claim that he likely would be tortured with official acquiescence if removed; the Third Circuit held that this was a mixed question of law and fact that the BIA should have instead reviewed de novo. The court also directed the BIA to consider the petitioner’s circumstantial evidence of official acquiescence to torture.

Joining Ambro were Chagares and Fuentes. Arguing counsel were Nathanael Kibler of Tennessee for the petitioner and Erica Miles for the government.

 

US v. Rodriguez — criminal — affirmance — Restrepo

The Third Circuit today affirmed a district’s denial of a motion for a sentencing reduction. The defendant argued that it was substantively unreasonable for the district court to deny his motion for a sentencing reduction based on a change to the Sentencing Guidelines after his sentencing. The most significant aspect of today’s ruling was that the court rejected the government’s argument that it lacked jurisdiction to review the appellate claims like the one raised here, joining three circuits and splitting with one.

Joining Restrepo were Chagares and Roth. Arguing counsel were Ronald Krauss of the MDPA federal defenders for the defendant and MDPA AUSA Carlo Marchioli for the government.

New opinions — Third Circuit takes sides in circuit split on federal jurisdiction over suits seeking declaratory and legal relief

Rarick v. Federated Mutual — civil / jurisdiction — reversal — Hardiman

Federal courts have broad discretion to refuse to hear declaratory-judgment suits, but a “virtually unflagging” duty to hear suits seeking legal relief. Today, the Third Circuit addressed the intersection of these two standards, deciding how much discretion federal courts have about whether to hear suits seeking both declaratory and legal relief.

Other circuits have split over what jurisdictional standard to apply to these hybrid declaratory/legal suits. The Seventh and Ninth Circuits have ruled that if the legal claims are not independent of the declaratory claims, the court may decline jurisdiction over the entire suit. Three other circuits apply the virtually-unflagging standard. And one has focused on which claims constitute the “heart of the matter,” and this is the standard that district courts within the Third Circuit had followed, including in the two cases decided in today’s appeal.

Today, the Third Circuit adopted the independent-claim test, reversing the district courts. It explained, ” The independent claim test is superior to the others principally because it prevents plaintiffs from evading federal jurisdiction through artful pleading.”

Joining Hardiman were Chagares and Scirica. Arguing counsel were Charles Spevacek of Minnesota and James Haggerty of Haggerty Goldberg.

 

US v. Repak — criminal — affirmance — Smith

The Third Circuit today issued a 68-page opinion affirming a public official’s conviction for extortion and bribery. Ronald Repak, the longtime head of Johnstown, PA’s redevelopment authority, was convicted of getting contractors who did business with the authority to replace the roof on his home and excavate land for his son’s gym. (Something tells me indicted admitted-new-roof-gift-receiver Philadelphia DA Seth Williams won’t enjoy reading this opinion much.)

The opinion addressed a flurry of claims:

  • The court affirmed admission of other-bad-acts evidence under FRE 404(b), even though the district court had failed to explain how the evidence was relevant to the defendant’s mental state or why the unfair prejudice did not outweigh its probative value.
  • The court affirmed admission of evidence that Repak had an affair, rejecting his FRE 403 claim.
  • The court rejected the defendant’s challenges to the sufficiency of the evidence for the Hobbs Act extortion counts and the bribery counts.
  • The court rejected Repak’s plain-error challenges to the extortion and bribery jury instructions.
  • The court rejected Repak’s argument that the indictment was constructively amended.
  • The court denied Repak’s claim that the prosecutor committed misconduct during closing arguments. The court did say that the prosecutor’s reference to Repak’s affair was “inappropriate, irrelevant to any issue at trial, and unnecessarily prejudicial.”

Joining Smith were McKee and Shwartz. Arguing counsel were Laura Irwin for the government and Timothy Lyon of Pittsburgh for the defendant.

New opinion — court affirms criminal conviction

US v. Jackson — criminal — affirmance — Greenberg

The Third Circuit today affirmed a drug-dealing conviction, summarizing its ruling thus (footnote omitted):

Jackson challenges the district court authorized wiretaps because he
contends that the state court lacked jurisdiction to permit the
underlying wiretaps of cellphones outside of Pennsylvania. In
this case intercepted calls were placed and received outside of
that state, even though the calls in part concerned cocaine
trafficking in Pennsylvania. Accordingly, Jackson contends that
the evidence obtained through the federal interceptions was the fruit of illegal conduct and should have been suppressed.

Jackson also claims that during the trial there were three
unchallenged prejudicial plain errors: (1) the admission of a case
agent’s testimony interpreting the contents of certain telephone
calls; (2) the admission of co-conspirators’ testimony about their
convictions and guilty pleas for the same crime; and (3) the
prosecutor’s mention of a co-conspirator’s Fifth Amendment
right not to testify when she was prompted to identify the
evidentiary rule that permitted the admission into evidence of
what otherwise would have been inadmissible hearsay. Jackson
urges that those errors separately and cumulatively require
reversal of his conviction.

We conclude that inasmuch as the District Court did not
err in denying Jackson’s motions to suppress the wiretap
evidence and his other contentions of error, even if correct,
would not make claims rising to the level of plain errors
entitling him to relief, we will affirm Jackson’s conviction.

Joining Greenberg were Fisher and Krause. Arguing counsel were F. Clinton Broden of Dallas, TX for the defendant and Donovan Cocas for the government.

New opinions — a partial sentencing reversal and an odd dual-juries affirmance

US v. Douglas — criminal sentencing — partial reversal — Shwartz

UPDATE: This panel opinion was vacated when the court granted en banc rehearing.

The Third Circuit today held that a district court erred when it imposed an obstruction-of-justice enhancement to a defendant’s criminal sentence. The enhancement was imposed because the defendant missed his original trial date due to an emergency room visit, but this was error because the government did not prove that the failure to appear was willful.

Over Judge Greenaway’s dissent, the court rejected the defendant’s claim that the court also erred by imposing a sentencing enhancement for abuse of a position of trust. The majority held that being a non-supervisor airline mechanic with a security clearance qualified for the enhancement.

Judge Greenaway’s dissent began:

The Sentencing Guidelines are meant to constrain judicial discretion, focusing and channeling decisions about criminal punishment in order to provide consistent,disciplined conclusions. I fear that my colleagues have shed those constraints. By disregarding the binding source of law here—the Sentencing Guidelines themselves—the majority has left the abuse of a position of public trust enhancement without limits on its scope. The Guidelines, and our consistent precedent in applying them, delineate particular sorts of abuse of trust which trigger this enhancement. The majority’s interpretation sweeps those textual and precedential distinctions away, rendering the enhancement indiscriminately applicable to a panoply of criminal actors.
Joining Shwartz was Vanaskie in full and Greenaway in part. Arguing counsel were Arnold Bernard, Jr. of Pittsburgh for the defendant and Michael Ivory for the government. The case was argued last March.

 

US v. Brown — criminal — affirmance — Jordan

The Third Circuit held that a district court did not commit plain error when it empaneled separate juries, one for this defendant and one for his co-defendant, for the same trial. The court noted that dual-jury trials “seem[] to have very little precedent in this Circuit,” and “we do not mean by this ruling to encourage the practice.”

Brown also urged the court to reconsider its 2014 en banc holding that defendants must object to procedural errors at sentencing to avoid plain error review. Problem was, he didn’t actually assert any errors with his sentence!

Joining Jordan were Chagares and Hardiman. The case was decided without oral argument.

New opinion — court grants resentencing after remand from Supreme Court

US v. Steiner — criminal sentencing — reversal — Fuentes

The Third Circuit today vacated a criminal sentence, ruling that the district court committed plain error when it sentenced the defendant as a career offender using a conviction under Pennsylvania’s burglary statute. That statute is not divisible and thus the sentencing court was obligated to apply the categorical approach instead of the modified categorical approach it used.

The posture of the case was interesting. The court had affirmed the defendant’s conviction in a 2016 published opinion that I discussed here. (I’m not rehashing the parts of today’s opinion that remained unchanged, though they are significant.)  In his petition for certiorari, as the court explained maybe a wee bit defensively, the defendant raised his sentencing argument for the first time, and the Supreme Court vacated and remanded. On remand, the government confessed plain error, and the court agreed.

Also of note: the court recognized that the defendant likely had already served longer than he would be resentenced to and therefore ordered him released pending expedited resentencing.

Fuentes was joined by Jordan and Vanaskie. Arguing counsel remained Renee Pietropaolo for the defendant and Jane Dattilo for the government.

New opinion — Third Circuit reverses course in grand-jury-appeal jurisdiction case [updated]

In re: Grand Jury Matter #3 — criminal / jurisdictional — reversal — per curiam

This past October, a divided Third Circuit panel ruled in this case that it lacked jurisdiction to hear an appeal from grand jury evidentiary ruling because, while the appeal was pending, the grand jury indicted the defendant. (My post on the prior ruling is here.)

Today, the same Third Circuit panel granted rehearing, vacated its prior opinion, and now ruled that it did have jurisdiction because the grand jury investigation was continuing. On the merits, it held that the district court erred in admitting the evidence:

With jurisdiction, we turn to an important question
involving the limits of the exception to the confidentiality
normally afforded to attorney work product. It loses
protection from disclosure when it is used to further a fraud
(hence the carve-out is called the crime-fraud exception).
The District Court stripped an attorney’s work product of
confidentiality based on evidence suggesting only that the
client had thought about using that product to facilitate a
fraud, not that the client had actually done so. Because an
actual act to further the fraud is required before attorney work
product loses its confidentiality and we know of none here,
we reverse.

The panel remained McKee, Ambro, and Scirica. Counsel for the John Doe appellant was Scott Resnik of New York, with Mark Dubnoff for the government.

UPDATE: Keith Donoghue, an appellate-unit assistant federal defender in Philadelphia, has posted this helpful analysis of the opinion on the Federal Defender Third Circuit Blog.

Third Circuit re-issues Mateo-Medina

After issuing a published opinion on December 30 and then mysteriously withdrawing it on January 3, the Third Circuit today issued a revised opinion in US v. Mateo-Medina, again remanding for resentencing on a finding that the district court committed plain error by relying in part on arrests that did not result in convictions.

It’s not immediately obvious to me exactly what changes the panel made to the previously-issued opinion, which no longer is on the court’s website for side-by-side comparison.

UPDATE: see D’s helpful comment with a link to the old opinion and identifying changes.

New opinion — court blocks attempt to raise Alleyne challenge in 2241 petition

Gardner v. Warden — habeas corpus — affirmance — Hardiman

The Third Circuit today held that challenges to criminal sentences based on Alleyne v. United States must be brought under 28 USC 2255 and not 2241. The ruling followed a 2002 ruling by the court similarly blocking 2241 sentencing challenges based on Apprendi v. New Jersey. The court also refused to reach challenges to the prisoner’s other sentences under its concurrent-sentences doctrine, rejecting his argument that the special assessment he received for those convictions was sufficient to warrant review but noting that Third Circuit precedent “leaves some room to argue that other ‘adverse collateral consequences’ of multiple convictions may” support review.

Joining Hardiman were McKee and Rendell. The case was decided without oral argument.

New opinion — Third Circuit closes the year with a remarkable criminal-sentencing reversal [updated]

US v. Mateo-Medina — criminal — reversal — McKee

UPDATE 1/3/17: as discussed in the comments here, the court vacated this opinion today. Stay tuned.

UPDATE 1/9/17: revised opinion here, and the original opinion is no longer on the CA3 website.

The Third Circuit today reversed a criminal sentence under plain error review, holding that the district court plainly erred when it considered the defendant’s bare arrests (arrests that did not result in convictions) in deciding his sentence.

Two points bear noting.

First, the court reversed under plain error even though the district court did not explicitly say it was considering bare arrests in deciding the sentence. The district court said it could not overlook his rather extensive criminal history, and it noted his seven [actually six] arrests and two convictions. The court said the error was still plain because the court could not have thought the two convictions alone were a rather extensive criminal history. That makes sense as far as it goes, although offhand I’m not sure how comfortably it jibes with all the other ways sentencing judges consider conduct the defendant was never convicted of.

Second, the court emphasized that relying on bare arrests exacerbates the impact of implicit bias on sentences:

The Sentencing Project Report also remarked on recent research indicating that police are more likely to stop, and arrest, people of color due to implicit bias. Implicit bias, or stereotyping, consists of the unconscious assumptions that humans make about individuals, particularly in situations that require rapid decision-making, such as police encounters.32 “Extensive research has shown that in such situations the vast majority of Americans of all races implicitly associate black Americans with adjectives such as ‘dangerous,’ ‘aggressive,’ ‘violent,’ and ‘criminal.’”33 In addition, a recent empirical study analyzed thirteen years’ worth of data on race, socioeconomic factors, drug use, and drug arrests.34 The study found that African-Americans, Hispanics, and whites used drugs in roughly the same percentages, and in roughly the same ways.35 The study controlled for variables such as whether the participant lived in high-crime, gang-controlled areas. Despite those controls, the study concluded that “in early adulthood, race disparities in drug arrest[s] grew substantially; as early as age 22, African-Americans had 83% greater odds of a drug arrest than whites and at age 27 this disparity was 235%.”36 With respect to Hispanics, the study found that socioeconomic factors such as residing in an inner-city neighborhood accounted for much of the disparity in drug arrest rates.37

Pretty extraordinary.

Joining McKee were Fuentes and Roth. The case was decided without oral argument.

 

New opinions — an immigration win and two criminal-appeal affirmances

Rodriguez v. AG — immigration — petition granted — Shwartz

The Third Circuit today granted a Domincan Republic citizen’s petition for review because the conviction that triggered his removal proceedings had been vacated and the notice of removal did not say that his placement in a deferred adjudication program supported removal.

Shwartz was joined by Ambro and Fuentes. The case was decided without argument; winning counsel was Fabian Lima.

 

US v. Robinson — criminal — partial affirmance — Roth

A divided Third Circuit panel today affirmed a criminal conviction but remanded, after the government’s concession of error and with no analysis, for a re-determination of whether the defendant is a career offender. The key issue on appeal was whether a defendant who uses a gun during a Hobbs Act robbery commits a “crime of violence” per 18 USC 924(c). The court held that the gun-use crime qualifies as a crime of violence when the defendant is tried and convicted together of both gun use and robbery.

Roth was joined by McKee; Fuentes concurred in part and concurred in the judgment. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Bernadette McKeon for the government.

 

US v. Galati — criminal — affirmance — Roth

A similar panel affirmed another criminal conviction against a similar challenge brought by the same counsel. The panel expressly followed the Robinson decision described above and described this case as bearing a striking resemblance.

Joining Roth were McKee and Jordan. Arguing counsel were Brett Sweitzer for the defendant and Mark Coyne for the government.

 

New opinion — court affirms government official’s bribery and extortion conviction

US v. Willis — criminal — affirmance — Fuentes

The Third Circuit today affirmed the conviction and sentence of a Virgin Islands official for bribery and extortion. The official argued in part that his conviction was invalid because the government failed to allege  a quid pro quo — the circuits have split over whether one is required. The court held that, if a quid pro quo is required, it was alleged adequately here. The court also rejected various fact-based challenges.

Joining Fuentes were Vanaskie and Restrepo. Arguing counsel were Jeffrey Molinaro of Miami for the appellant and Justin Weitz for the government.

New opinions — “crime of violence” deportation trigger is unconstitutionally vague

Baptiste v. AG — immigration — reversal — Greenaway

The Third Circuit held that the statutory “crime of violence” standard, like the armed-career-criminal residual clause, is unconstitutionally vague. This holding deepens a circuit split. The court ruled that the petitioner here still is deportable, though, because he was convicted of two ‘crimes involving moral turpitude.’

Joining Greenaway were Scirica and Rendell. Arguing counsel were Dickinson School of Law student Penelope Scudder of for the petitioner and Jesse Bless for the government.

 

US v. Henderson — criminal — affirmance — Vanaskie

The Third Circuit today upheld a district court’s ruling that a criminal defendant was an armed career criminal (and thus subject to a much more severe sentence), holding that PA’s Controlled Substance Act — sorry, what follows is gibberish unless you do criminal appeals —  is divisible and thus subject to the modified categorical approach. The case was argued just over a year ago.

Joining Vanaskie were Fuentes and Jordan. Arguing counsel were Renee Pietropaolo for the defendant and Laura Irwin for the government.

New opinions — Court affirms Facebook-threats conviction again

US v. Elonis — criminal — affirmance — Scirica

Last year, the Supreme Court reversed the Third Circuit’s affirmance of Anthony Elonis’s conviction for making threats on Facebook. On remand, the court today affirmed again, holding that the error was harmless because the jury would have convicted him if it had been properly instructed.

Joining Scirica were McKee and Hardiman. Arguing counsel were Abraham Rein of Post & Schell for Elonis and Mark Levy for the government.

 

In re: Grand Jury Matter #3 — criminal / jurisdictional — dismissal — McKee

A divided Third Circuit panel today held that it lacked jurisdiction to hear an appeal from an order allowing the prosecution to show a grand jury privileged emails because, while the appeal was pending, the grand jury indicted the appellant.

Joining McKee was Scirica; Ambro dissented. Arguing counsel were Scott Resnik of New York for the appellant and Mark Dubnoff for the government.

New opinions — Third Circuit bashes trial court and prosecution but affirms anyway, plus a maritime case

U.S. v. Bailey — criminal — affirmance — McKee

The Third Circuit today held that a district court violated Rule 403 of the Federal Rules of Evidence when it admitted evidence of the defendants’ other bad acts, but that the error was harmless given the overwhelming evidence of their guilt. The defendants were convicted of heroin dealing; the erroneously admitted evidence included a surveillance video of a murder that was related to their drug trafficking. The court noted that it was disturbed by the prosecution’s tactic in using the murder video and “extremely troubled” by the district court’s admission of it, noting (cites omitted):

The extent of the district court’s [Rule 403] balancing regarding this piece of evidence was an off-handed and rather casual remark that the video of James being shot in the head at point blank range “wasn’t very graphic.” With that comment, the district court concluded that the video evidence would be admitted. For reasons known only to the court, the judge added that the admission of this evidence would give the defendants “an appeal issue.” The court was right.

Zing. And because the district court did not explain its 403 reasoning, the Third Circuit didn’t even apply the deferential abuse-of-discretion standard it normally would. But after the obligatory impotent Berger quote — which the opinion itself admitted “seems all too often to resemble the falling tree that no one hears” — the court found the error harmless and affirmed.

The opinion included this remarkable footnote:

Chief Judge McKee notes that he will begin naming attorneys who engage in such tactics in his opinions in order to deter such conduct. He hopes that this practice will stress that harmless error review is not an invitation to resort to unduly prejudicial tactics merely because the evidence is strong enough to obtain a conviction that will likely be immunized against reversal by the harmless error doctrine. He invites his colleagues to do the same.

Well, I’m not his colleague, but the docket lists as lead trial counsel for the prosecution Patrick C. Askin.

Joining McKee were Jordan and Roth. Arguing counsel were John Holiday, Gina Capuano, William Spade, and James Murphy for the four defendants and Norman Gross for the government.

 

Hargus v. Ferocious and Impetuous — maritime — reversal — Vanaskie

In the circuit’s most interestingly captioned case of the year to date, the Third Circuit today vacated a civil judgment for lack of maritime jurisdiction. And you don’t see this every day:

It bears noting that no entry of appearance was made on behalf of Hargus. Nor was a brief filed on his behalf and neither Hargus nor an attorney acting on his behalf participated in oral argument.

Vanaskie was joined by Fuentes and Restrepo. Arguing counsel was Matthew Duensing of the Virgin Islands for the appellants.

New opinions — an immigration reversal on aggravated felonies and a sentencing reversal on loss amount

Singh v. AG — immigration — reversal — Scirica

The Third Circuit today held that a Pa. conviction for possession of counterfeit drugs with intent to deliver is not an aggravated felony that would make the person convicted ineligible for discretionary relief from removal. The court held that the BIA erred by not applying the modified categorical approach. The court granted the petition for review and remanded.

Joining Scirica were Ambro and Jordan. Arguing counsel were Craig Shagin for the petitioner and Elizabeth Chapman for the government.

 

US v. Free — criminal sentencing — reversal — Fuentes

Here’s one you don’t see every day. A guy with plenty of money to pay his debts filed for bankruptcy and hid hundreds of thousands of dollars worth of assets, except he still had enough assets to pay his creditors in full. Not for nothing does the Third Circuit describe this as “bizarre.” The asset-hiding led to criminal convictions for bankruptcy fraud and a two-year sentence.

The issue in today’s appeal was how to calculate the loss amount for sentencing purposes, given that the creditors lost nothing. The district court used the amount the defendant concealed and the amount of debt he sought to discharge in bankruptcy. The Third Circuit reversed for resentencing, ruling that the loss amount is the amount the creditors lost or the amount the defendant intended to gain. The court noted that the resentencing court still could impose the same sentence, even without any loss enhancement, through an upward departure for lying and disrespect to the court. The court rejected as “too clever by half” his argument that the absence of loss rendered the evidence legally insufficient.

Joining Fuentes were Shwartz and Restrepo. Arguing counsel were Martin Dietz for the defendant and Laura Irwin for the government.

 

 

New opinion — admission of police officers’ opinion testimony clear error, but harmless

U.S. v. Fulton — criminal — affirmance — McKee

The Third Circuit today held that the trial court committed obvious errors by admitting two police officers’ lay-opinion testimony, but that the errors were harmless in light of other proof of the defendant’s guilt. In order for lay-opinion testimony to be admissible under FRE 701, it must be (among other things) helpful to the jury. The Third Circuit held that one officer’s testimony interpreting phone records was not helpful because it was “dead wrong and even misleading.”  Other testimony about whether two people looked alike was not helpful because the officers were not sufficiently familiar with the people they were discussing. (This holding relates to the recent Dennis en banc and the circuit’s new eyewitness identification task force.) The court rejected various other challenges.

Joining McKee was Hardiman; Smith concurred but disagreed with the majority’s conclusion that the evidence was admitted erroneously. Arguing counsel were defender Louise Arkel for the defendant and John Romano for the government.

Three new opinions

Associated Builders v. City of Jersey City — civil — reversal — Krause

Jersey City, NJ, offers tax exemptions to developers, but only if they meet certain labor conditions including using union labor, rejecting strikes and lock-outs, and a set percentage of local hiring. Today, the Third Circuit held that, in enacting the labor conditions, the city was acting as a regulator not a market participant. The ruling reversed the district court and meant that the conditions were reviewable for pre-emption and dormant-Commerce-Clause violation.

Joining Krause were Chagares and Scirica. Arguing counsel were Russell McEwan of Littler Mendelson for the appellants, Zahire Estrella for the city, and Raymond Heineman of Kroll Heineman for an intervenor.

 

Goodwin v. Detective Conway — civil rights — reversal — Fuentes

Rashied Goodwin sued police officers for false imprisonment and malicious prosecution after he was arrested; he alleged that the officers should have known he was innocent because they had a booking sheet indicating he was in jail at the time of the crime. The defendants moved for summary judgment based on qualified immunity, the district court denied the motion, and today the Third Circuit reversed. The court reasoned that the booking sheet did not show that Goodwin was in custody at the relevant time. (I was confused when I read the opinion because the key dates are replaced with empty brackets; I missed fn.6 explaining these are redactions requested by the parties.)

Joining Fuentes were Chagares and Restrepo. Arguing counsel were Eric Pasternack for the officers and Catherine Aiello of Lowenstein Sandler for Goodwin.

 

US v. Adeolu — criminal — affirmance — Vanaskie

The Third Circuit affirmed a criminal sentence, holding that the USSG 3A1.1(b)(1) vulnerable-victim sentencing enhancement does not require actual harm to the victim, only a nexus between the victim’s vulnerabilty and the crime’s success.

Joining Vanaskie were Greenaway and Shwartz. Arguing counsel were Karina Fuentes of the FPD for the defendant and AUSA Jose Arteaga for the government.

 

New opinion — Third Circuit clarifies authentication of social media content

US v. Browne — criminal — affirmance — Krause

The lucid introduction to today’s opinion affirming in a criminal appeal:

The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial. Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses with minors based in part on records of “chats” exchanged over Facebook and now contests his conviction on the ground that these records were not properly authenticated with evidence of his authorship. Although we disagree with the Government’s assertion that, pursuant to Rule 902(11), the contents of these communications were “self-authenticating” as business records accompanied by a certificate from the website’s records custodian, we will nonetheless affirm because the trial record reflects more than sufficient extrinsic evidence to link Browne to the chats and thereby satisfy the Government’s authentication burden under a conventional Rule 901 analysis.

The court appears to split with the Fourth Circuit over whether Facebook pages are self-authenticating, see slip op. 19 n.8. The opinion also addressed admissibility. It held that the chats were admissible as party-opponent admissions, except for one statement that should not have been admitted but the error was harmless.

Joining Krause were Fisher and Roth. Arguing counsel were Everard Potter for the government and Omodare Jupiter for the defendant.

En banc court upholds habeas relief in capital case, plus two divided panels and a sentencing affirmance

Another blockbuster August day today, with a big capital-habeas en banc ruling and three panel opinions. Over 300 pages of opinion today.

Dennis v. Secretary — capital habeas corpus — affirmance — Rendell

The en banc Third Circuit today affirmed habeas corpus relief for James Dennis, holding in a landmark habeas opinion that the prosecution suppressed evidence that effectively gutted its case and that the Pa. Supreme Court unreasonably applied Brady v. Maryland when it denied relief. The 2015 panel ruling (Fisher with Smith and Chagares) had ruled for the state.

Joining Rendell were McKee, Ambro, Fuentes, Greenaway, Vanaskie, Shwartz, and Krause, and by Jordan in part. McKee concurred “to underscore the problems inherent in eyewitness testimony and the inadequacies of our standard jury instructions relating to that evidence.” Jordan concurred in part and concurred in the judgment, noting:

Every judge of our en banc Court has now concluded that the Pennsylvania Supreme Court’s contrary determination was not only wrong, but so obviously wrong that it cannot pass muster even under AEDPA’s highly-deferential standard of review. In other words, it is the unanimous view of this Court that any fairminded jurist must disagree with the Dennis I court’s assessment of the materiality and favorability of the Cason receipt. Yet somehow a majority of the Pennsylvania Supreme Court endorsed Dennis’s conviction and death sentence. The lack of analytical rigor and attention to detail in that decision on direct appeal is all the more painful to contemplate because the proof against Dennis is far from overwhelming. He may be innocent.

Fisher dissented, joined by Smith, Chagares, and Hardiman, and Hardiman also authored a dissent that Smith and Fisher joined. Arguing counsel were Amy Rohe of Reisman Karron for Dennis and Ronald Eisenberg of the Philadelphia D.A.’s office for the state.

 

Watson v. Rozum — prisoner civil rights — reversal in part — McKee

A divided Third Circuit panel today ruled in favor of a prisoner alleging a First Amendment retaliation claim.

Joining McKee was Ambro; Ambro also concurred, explaining the court’s rejection of caselaw from the Fifth and Eighth Circuits and its disavowal of prior non-precedential circuit rulings. Hardiman dissented. Arguing counsel were Kemal Mericli of the Pa. A.G.’s office for the state and former Fisher clerk Ellen Mossman of Dechert for the prisoner.

 

NAACP v. City of Philadelphia — First Amendment — affirmance — Ambro

It’s unusual enough for the same panel to issue two precedential opinions on the same day, but it’s rare indeed for the same judge to dissent in both cases. But so it was here, where Hardiman again dissented from a McKee-Ambro majority. In this case, the majority affirmed a district court ruling that Philadelphia’s policy of banning non-commercial advertising at its airport violates the First Amendment.

Arguing counsel were Craig Gottlieb for the city and Fred Magaziner of Dechert (who clerked for Rosenn) for the challengers.

 

US v. Carter — criminal — affirmance — Shwartz

The Third Circuit affirmed a district court criminal sentence applying a sentencing enhancement for maintaining a stash house. The defendant had argued he did not maintain the stash house because he did not own or rent the house and did not pay for its operation from his own funds.

Joining Shwartz were Fuentes and Restrepo. The case was decided without oral argument.

New opinions — a rare plain-error reversal of a criminal sentence, and an expansion of disabilities-suit exhaustion

US v. Dahl — criminal — reversal — Scirica

The Third Circuit today held that it was plain error for the district court to sentence a criminal defendant as a sex-offender recidivist under USSG § 4B1.5. The district court had focused on the actual conduct underlying the defendant’s prior convictions in deciding whether his prior crimes qualified as sex offense convictions, but the Third Circuit held that courts are required instead to apply the categorical approach, focusing on whether the elements of the prior crime necessarily qualify, just as in the armed-career-criminal-enhancement context.

The court disavowed dicta from its 2012 ruling in Pavulak purporting to apply a modified-categorical approach. It reversed under plain error, even though it was undisputed that this defendant’s prior acts would have qualified as sex offenses, stating, “We generally exercise our discretion to recognize a plain error in the misapplication of the Sentencing Guidelines.”

Joining Scirica were Chagares and Krause. Arguing counsel were Brett Sweitzer of the Federal Community Defender in Philadelphia for the defendant and Bernadette McKeon for the government.

 

S.D. v. Haddon Heights Bd. of Educ. — civil / education / disability — affirmance — Greenaway

The Individuals with Disabilities Education Act is one of many constitutional or statutory protections against disability-related discrimination. The IDEA requires plaintiffs to administratively exhaust their claims before they can file suit. In its 2014 ruling in Batchelor, the Third Circuit held that the IDEA exhaustion requirement applies to claims that are raised under other statutes but which arise from rights explicitly protected by the IDEA. Today, the court extended Batchelor “narrow[ly]” to hold that IDEA’s exhaustion requirement also applies to non-IDEA claims that are “educational in nature and implicate services within the purview of the IDEA,” even when they “do not . . . arise from their enforcement of rights explicitly under the IDEA.”

Joining Greenaway were Jordan and Hardiman. Arguing counsel were Sarah Zuba of Reisman Carolla for the appellants and William Donio of Cooper Levenson for the appellee.

Three new opinions — antitrust, criminal sentencing, and prisoner civil rights

It’s mid-August, so clerkships are ending and opinions are issuing thick and fast. Three more today, including a significant prisoner-rights opinion.

Deborah Heart & Lung Ctr. v. Virtua Health — civil / antitrust — affirmance — Roth

A dispute between two health care providers over patient referrals led one of them to bring an antitrust suit against the other. The district court ruled for the defendant, and today the Third Circuit affirmed. The opinion begins, “In antitrust suits, definitions matter,” and the court found that the plaintiff failed to meet its own undisputed definitions of the relevant products and markets. The court stated that it wrote in order to clarify the plaintiff’s burden under Section 1 of the Sherman Act when the plaintiff doesn’t allege that the defendants have market power: such plaintiffs must show anti-competitive effects on the market as a whole.

Joining Roth were Fuentes and Krause. Arguing counsel were Anthony Argiropoulos of Epstein Becker for the appellant and Philip Lebowitz of Duane Morris for the appellees.

US v. Jones — criminal — affirmance — Hardiman

When defendants commit a crime while they are on supervised release, they get a new, revocation sentence, and the length of that sentence depends on the seriousness of the original offense. But what if the seriousness of the offense has changed between the time of the original conviction and the time of the revocation sentencing?

Jermaine Jones was sentenced back in 2000 as an armed career criminal. Since that time, the Supreme Court decided cases that Jones says would make him ineligible to be sentenced as an armed career criminal today. So when Jones violated the terms of his supervised release and faced revocation sentencing, the sentencing court had to decide how to calculate his revocation sentence now–as a career criminal or not? Jones argued that he should be sentenced today based on how his original offense would be classified today; it would be unconstitutional to sentence him as an armed career criminal now, so it would be wrong to classify him now as an armed career criminal when imposing a revocation sentence. The government argued he should be sentenced today based on how his offense was classified at the time.

Today, the Third Circuit agreed with the government and affirmed, holding that it was correct to classify Jones as an armed career criminal for purposes of calculating his revocation sentence.

Hardiman was joined by Smith (Sloviter also had been on the panel before she assumed inactive status). The case was decided without oral argument.

 

Parkell v. Danberg — prisoner civil rights — reversal in part — Chagares

A Delaware inmate fell and seriously injured his elbow. In the suit he eventually filed, he alleged a disturbing year-long ordeal of mistreatment and neglect by prison guards and health-care staff. He also alleged that his Fourth Amendment rights were violated by three-times-daily visual body cavity searches even though he had no contact with anyone. The district court granted summary judgment for the defendants.

Today in a 38-page opinion the Third Circuit reversed summary judgment on the Fourth Amendment cavity-searches claim, holding that the Fourth Amendment gives inmates a “very narrow” right to bodily privacy and that the prisoner here may be able entitled to prospective injunctive relief. The court affirmed summary judgment on his Eighth Amendment conditions-of-confinement and deliberate-indifference claims, as well as his effort to recover money damages on his Fourth Amendment claim, essentially because the pro se inmate had failed to marshal enough proof about who was actually responsible.

Joining Chagares were Fisher and Cowen. Arguing counsel for the inmate were Suzanne Bradley and former Barry clerk Brendan Walsh of Pashman Stein, who the court thanked for the quality of their pro bono representation. Counsel for the defendants were Devera Scott of the Delaware AG’s office and Chad Toms and Daniel Griffith of Whiteford Taylor.

New opinion — Third Circuit affirms a white-collar conviction and sentence in Judge Restrepo’s first published opinion

US v. Miller — criminal — affirmance — Restrepo

The Third Circuit on Friday affirmed in a white-collar criminal appeal, holding that the district court correctly applied the ‘investment adviser’ offense-level enhancement to an unregistered investment adviser. The court also found no plain error where the government promised to recommend a lower offense level and then repeatedly requested that level but also stated when pressured by the sentencing judge that a higher level would be reasonable. Finally, the court rejected the defendant’s challenge to the substantive reasonableness of his 120-month sentence. The opinion, Judge Restrepo’s first published opinion as a Third Circuit judge, is a model of directness and clarity.

Joining Restrepo were Fuentes and Chagares. The case was decided without oral argument.

Three new opinions, featuring two judges writing separately on substantial standing and waiver issues

Freedom From Religion Foundation v. New Kensington Arnold S.D. — civil / First Amendment —  reversal in part — Shwartz

For the past 60 years, a public high school in Pennsylvania has a had a granite monument on school grounds inscribed with the Ten Commandments. A student, a parent, and a group dedicated to the separation of church and state sued the school, alleging that the monument violated the Establishment Clause, but the district court dismissed the suit on standing and mootness grounds. Today, the Third Circuit reversed in part, holding that the parent had standing because she had direct contact with the monument and remanding to determine whether the parent was a member of the group.

Joining Shwartz were Smith and Hardiman; Smith concurred dubitante in a lengthy opinion explaining his doubt that a claim for nominal damages should suffice to confer standing or overcome mootness.

Arguing counsel were Marcus Schneider of Steele Schneider for the appellants, Anthony Sanchez for the school district, and Mayer Brown associate Charles Woodworth for amicus.

 

NLRB v. Fedex Freight — labor — petition denied — Scirica

A group of Fedex Freight drivers voted to unionize but Fedex refused to bargain with them, arguing that another group of employees had to be included, too. The NLRB ruled against Fedex and Fedex filed a petition for review. Today, a divided Third Circuit panel denied the petition for review. Apart from the merits issues, the majority and concurring opinions feature an important back-and-forth about when cursory presentation of an argument in district court will result in waiver on appeal.

Joining Scirica was Ambro; Jordan concurred in part and concurred in the judgment, explaining his view that Fedex waived one of its central arguments below by making it only in passing in a footnote. Arguing counsel were Milakshmi Rajapakse for the NLRB and Ivan Rich Jr. for Fedex.

 

US v. Stevenson — criminal — affirmance — Hardiman

The Third Circuit today affirmed a criminal defendant’s conviction and sentence, rejecting a series of challenges including his argument that the dismissal of the charges against him for a speedy-trial violation should have been with prejudice, not without. The court also held that indictment defects are subject to harmless error analysis, overruling its own prior precedent based on intervening Supreme Court precedent and splitting with the Ninth Circuit.

Joining Hardiman were Smith and Shwartz. The case was decided without argument.

New opinion — a remarkable career-offender-sentencing opinion

US v. Rengifo — criminal — affirmance — Roth

The Third Circuit on Friday embraced an exceptionally aggressive interpretation of the career-offender sentencing provision, affirming a defendant’s career-offender sentence without oral argument.

Under the US Sentencing Guidelines, a defendant can be sentenced as a career offender only if he has two qualifying prior convictions. One way a conviction can qualify — the way at issue in this case — is if it resulted in a “sentence of imprisonment exceeding one year and one month.”

One of Hector Rengifo’s two prior convictions was possession with intent to distribute marijuana. The sentence he received for this state conviction was “time served to 12 months.” Since 12 months plainly does not exceed one year and one month, the prior conviction doesn’t qualify and Rengifo isn’t a career offender, right? Wrong.

It turns out that Rengifo was released on parole after serving 71 days of the time-served-to-12-months sentence. Then his parole was revoked, he (as the opinion awkwardly puts it) “was sentenced to the remaining 294 days of the original sentence,” and he served another 120 days. He was released on parole again, revoked again, and “sentenced to the remaining 174 days of his sentence.” In the end he served his full original sentence, and nothing more. By “nothing more,” I’m referring to the fact that, in some jurisdictions, defendants who violate parole get additional time tacked onto their sentences for the parole-violating acts — revocation sentences, not just revocations. That’s not what happened here: Rengifo served 365 days. So, still not a sentence “exceeding one year and one month,” right? Wrong.

The government argued that, for career-offender-calculation purposes, Rengifo’s sentence was 365 days (the original max sentence) plus 294 days (the time he served after being released on parole the first time). The court rejected this argument — instead adopting a career-offender-calculation methodology it described as “harsher”:

[T]he correct total of Rengifo’s sentence of imprisonment is 833 days, which consists of the maximum imposed original sentence of 365 days, plus the maximum imposed sentence for the first revocation of 294 days, and plus the maximum imposed sentence for the second revocation of 174 days.

Holy cow!

The court rejected Rengifo’s due-process argument that this triple counting was double counting, and it rejected his rule-of-lenity argument because it found the career-offender guideline and application notes unambiguous. It relied mainly on USSG 4A1.2k n. 11, which says, “[i]f the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.”  I don’t see how it’s not at least ambiguous whether “sentence imposed upon revocation” means a new sentence added to the underlying sentence for the parole-violating acts.

Joining Roth were Fuentes and Krause. The case was decided without oral argument.

New opinion — Senator Menendez’s alleged actions not protected from prosecution

US v. Menendez — criminal — affirmance — Ambro

The Third Circuit rejected U.S. Senator Robert Menendez’s appeal from the denial of his motion to dismiss the indictment against him. Menendez (D-NJ) is charged with accepting gifts from a Florida doctor whom his office assisted in various ways. Because the charged acts were “essentially lobbying on behalf of a particular party,” the court rejected his argument that his actions are protected from prosecution by the Speech or Debate Clause, but the court also rejected the government’s position that the clause does not extend to legislative attempts to influence executive actions.

Joining Ambro were Jordan and Scirica. Arguing counsel were Abbe Lowell of Chadbourne & Parke for the Senator and Peter Koski for the government.

UPDATE: AP reports on 9/13 that the Court denied en banc rehearing.

New opinion — divided Third Circuit panel vacates career-offender criminal sentence under plain-error review

US v. Calabretta — criminal — reversal — Chagares

The Third Circuit reversed a criminal sentence under plain error review yesterday, holding that Johnson v. United States invalidates the residual clause of USSG 4B1.2 and that sentencing the defendant as a career offender was plain error.

Joining Chagares was Jordan. Fisher dissented, “specifically to address the erosion of the doctrine of plain error review in our Circuit.” Arguing counsel were John Meringolo of New York for the defendant and Steven Sanders for the government.

New opinions — it isn’t unreasonable for judges to run new federal sentences consecutive to existing unconstitutional state sentences

US v. Napolitan — criminal — affirmance — Krause

Sometimes a judge imposes a criminal sentence on a defendants who is already serving another criminal sentence. When that happens, the judge has to decide whether the new sentence starts running now (“concurrent”), or whether instead the new sentence doesn’t start running until the defendant’s current sentence is over (“consecutive”).

The difference between concurrent and consecutive may sound like small potatoes, and some judges may treat it that way, but in practice the choice can have a huge impact on how long a defendant has to serve.

Imagine a defendant whose first sentence is 10 years in state prison. After she has served half that sentence, she gets a federal conviction and a new 5-year sentence. If the new sentence is consecutive, her total time in prison is 15 years; if concurrent, she serves 10 years. If that’s you or your parent or your child, that’s a huge sentencing difference.

Now, let’s change the above hypothetical. Suppose that, at the time of the new sentencing, everyone in the courtroom agrees that the first sentence was illegal. Instead of the 10 years she got, the sentence should have been only 5 years. But it’s too late now for her to challenge the unconstitutional first sentence.

In a case like the second hypothetical, is it unreasonable for a judge to make the second sentence consecutive? Today, the Third Circuit held that it is not, affirming a defendant’s consecutive sentence. The court found the outcome largely dictated by the 1994 Supreme Court ruling in Custis v. United States, which held that federal defendants generally cannot collaterally attack prior state sentences used to enhance their later federal sentences.

The opinion’s legal reasoning looks perfectly sound to me. But I wish the court had included some language reminding district courts that, while they’re more or less free to run new sentences consecutive to unconstitutional existing sentences, that doesn’t make it a fantastic idea.

Joining Krause were Fuentes (the court’s newest senior judge!) and Roth. The caption does not indicate whether there was oral argument; the defendant was represented by AFDs Akin Adepoju and Renee Pietropaulo of the WDPA defenders, the goverment by Donovan Cocas and Rebecca Haywood.

New opinion — divided panel reverses conviction based on failure to give entrapment defense [updated]

US v. Dennis — criminal — reversal in part — Nygaard

In a criminal appeal arising out of a stash house reverse sting, a divided panel reversed a defendant’s convictions for robbery and gun possession, holding that the district court erred in failing to instruct the jurors on entrapment, and specifically in weighing competing evidence in the government’s favor to deny the instruction. The majority also rejected the government’s harmless-error argument. It rejected the defendant’s argument that he was the victim of an outrageous prosecution violating due process.

Joining Nygaard was Hardiman; interestingly, Ambro dissented from the instruction reversal, and also expressed measured concerns about stash house reverse stings. Arguing counsel were Benjamin Yaster of Gibbons for the defendant and Mark Coyne for the government.

I expect a government petition for rehearing en banc and I’m certainly curious to see what happens.

[I updated my original post with more details.]

New criminal sentencing opinion

United States v. Thompson — criminal — affirmance — Greenaway

In 2014, the US Sentencing Commission amended the sentencing guidelines to retroactively reduce the advisory range for many drug-crime sentences. A defendant who was sentenced before the change can get the reduction too, but only if their sentence was “based on” the earlier higher range and the reduction would be consistent with Sentencing Commission policy, 18 USC § 3582. A different guideline range applies to career offenders, and that range didn’t go down.

Today’s appeal presents an interesting question: what about defendants who qualified to be sentenced using the career-offender range (which didn’t change) but who made a deal so that they actually were sentenced under the standard range (which did). Can they get the reduction?

The Sentencing Commission answered this question, unfavorably to defendants, in a policy statement called Amendment 759. But both of the defendants here committed their crimes before Amendment 759 was enacted, and they argued that applying it against them would be ex post facto punishment.

Today, the Third Circuit held that the defendants’ sentences were “based on” the lowered guidelines range but that reducing their sentences was not consistent with Sentencing Commission policy, and that applying the policy against them did not violate the ex post facto clause because denying them the reduction “does not lengthen the period of time they will spend incarcerated–it merely denies them the benefit of a discretionary reduction of that period of time.” (Offhand I’d have thought the sounder basis for rejecting the defendants’ position was that at the time of their crimes they had no grounds to expect a non-career-offender-range deal.)

Joining Greenaway were Vanaskie and Shwartz. The case was decided without oral argument; pending Third Circuit nominee Rebecca Haywood was one of the government’s attorneys.

A rare dissent from denial of rehearing en banc

Easy to miss among the unpublished opinions issued today was an order denying rehearing en banc in United States v. Kelly. The panel opinion, also unpublished, is here. It was authored by Greenaway and joined by Scirica and Roth.

Here’s the interesting part: four judges (McKee, joined by Ambro, Smith, and Restrepo) dissented from the denial of rehearing. Any dissent from denial of rehearing is quite rare in the Third Circuit. It’s rarer still given that the panel opinion was both unpublished and unanimous, and that none of the dissenters sat on the panel.

The heart of the issue is how jurors are instructed in drug-conspiracy cases, specifically whether those instructions unjustly expose mere purchasers to criminal liability as conspirators. McKee’s opinion explains his basis for dissenting in this introduction:

I appreciate that the panel’s decision in this case was
dictated by circuit precedent and that my colleagues therefore
felt compelled to affirm the jury’s determination that Kelly’s
membership in the Alford drug distribution conspiracy had
been proven beyond a reasonable doubt. However, I take the
unusual step of filing this opinion sur denial of rehearing to
explain why we have made a mistake by not availing
ourselves of this opportunity to reexamine our jury
instructions in drug conspiracies. I do so even though this
appeal has been resolved in a non-precedential opinion
because our current approach to informing jurors how to
distinguish between a purchaser from a drug conspiracy and a
member of that conspiracy is so meaningless that it presents
the illusion of an objective standard while furnishing no
guidance to jurors who must make this crucial distinction.

Our current standard for channeling a jury’s inquiry in
such prosecutions fails to provide a jury with sufficient
guidance to allow jurors to appropriately differentiate
between customers and co-conspirators. Although some of
our factors may be relevant to this inquiry, the irrelevant
factors I discuss below create the very real danger of placing
a thumb on the conspiratorial side of the scale and thereby
tipping the balance in favor of a conviction for conspiracy
when only a buyer-seller relationship has been established.
Because there is no way of knowing how this jury would have
viewed the circumstantial evidence against Kelly if that
additional weight had not been added to the conspiratorial
side of the scale, I believe this case “involves a question of
exceptional importance,” meriting en banc reconsideration.
Fed. R. App. P. 35(a).

He concludes thus:

Given the extent to which illegal drugs and illegal drug
sales continue to devastate and destroy lives and
communities, I have no doubt that we will have another
opportunity to revisit the factors we use in attempting to
distinguish between purchasers and co-conspirators.
Regrettably, in the interim we also will no doubt expose
numerous purchasers of drugs (even those who purchase
merely to “feed” their own addiction) to the exponentially
greater penalties that attach to being a member of a drug
conspiracy. I therefore take this opportunity to express my
concern that we are failing to afford jurors the guidance they
need and that the law requires in deciding whether evidence is
sufficient to establish guilt beyond a reasonable doubt in
cases such as this. Worse yet, the “guidance” that we do give
jurors is not only less than helpful, it is misleading because it
can be an open invitation to convict mere purchasers of illegal
drugs of the far more serious crime of being a member of a
drug conspiracy. Accordingly, I now echo the concern
expressed by Judge Becker a decade and a half ago and
explain why we should avail ourselves of this opportunity and
grant Kelly’s petition for rehearing.

Thirteen judges participated in the en banc rehearing decision, so the dissenters apparently fell three votes short, with five judges appointed by Democratic presidents not dissenting.

(I say “apparently” because nothing requires a judge who voted in favor of rehearing en banc to dissent from the denial. So it’s theoretically possible that one or two judges voted to grant rehearing but declined to join McKee’s dissent or issue their own.)

Two new opinions — a big telecom case and a little criminal-sentencing case

Stirk Holdings v. FCC — agency / telecom — vacate and remand — Ambro

Here is the remarkable introduction to Judge Ambro’s remarkable opinion today scolding the FCC:

Twelve years have passed since we first took up challenges to the broadcast ownership rules and diversity initiatives of the Federal Communications Commission (“FCC” or “Commission”). In some respects the Commission has made progress in the intervening years. In key areas, however, it has fallen short. These shortcomings are at the center of this dispute—the third (and likely not the last) round in a protracted battle over the future of the nation’s broadcast industry. Specifically, the parties present challenges to the Commission’s “eligible entity” definition, its Quadrennial Review process, and its rule on television joint sales agreements.
Although courts owe deference to agencies, we also recognize that, “[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.” Public Citizen Health Research Group v. Chao, 314 F.3d 143, 158 (3d Cir. 2002) (emphasis and internal quotation marks omitted). For the Commission’s stalled efforts to promote diversity in the broadcast industry, that time has come. We conclude that the FCC has unreasonably delayed action on its definition of an “eligible entity”—a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership—and we remand with an order for it to act promptly.

Equally troubling is that nearly a decade has passed since the Commission last completed a review of its broadcast ownership rules. These rules lay the groundwork for how the broadcast industry operates and have major implications for television, radio, and newspaper organizations. Although federal law commands the Commission to conduct a review of its rules every four years, the 2006 cycle is the last one it has finished; the 2010 and 2014 reviews remain open. Several broadcast owners have petitioned us to wipe all the rules off the books in response to this delay—creating, in effect, complete deregulation in the industry. This is the administrative law equivalent of burning down the house to roast the pig, and we decline to order it. However, we note that this remedy, while extreme, might be justified in the future if the Commission does not act quickly to carry out its legislative mandate.

Whereas the first two issues before us involve agency delay, the third is a challenge to agency action. The Commission regulates the number of television stations a company can own. In 2014, it determined that parties were evading its ownership limits through the influence exerted by advertising contracts known as joint sales agreements. As a result, it created a rule designed to address this perceived problem. However, we conclude that the Commission improperly enacted the rule; hence we vacate it and remand the matter to the Commission.

Ambro was joined by Fuentes; Scirica dissented in part because he would have gone further and ordered the FCC to issue its 2010 quadrennial review within 6 months. Arguing counsel were David Gossett for the FCC, and Helgi Walker of Gibson Dunn, Patrick Philbin of Kirkland & Ellis, and Georgetown Law professor Angela Campbell for various petitioners/intervenors.

 

United States v. Nerius — criminal sentencing — affirmance — Shwartz

Jean Nerius was convicted of two crimes. He was classified as a career offender at sentencing, resulting in a sentencing guidelines range of 37 to 46 months. Although his pre-sentencing prison-discipline record was bad, the judge sentenced him at the bottom of that range, 37 months. But the career-offender designation was error, so Nerius was resentenced. This time his guideline range was 30 to 37 months. And since his original sentencing his disciplinary record had been spotless. But this time the sentencing judge sentenced him to 36 months, near to top end of the guideline range and just one month less he’d gotten than when he was deemed a career offender.

On appeal, Nerius argued that his new sentence was presumptively vindictive — that the sentencing judge should be presumed to have punished him for winning his first appeal by going from a bottom-of-the-old-range sentence to an-almost-top-of-the-new-range sentence, when the only thing that had apparently changed since the first sentencing (besides the fact that he was no longer deemed a career offender) was that he’d been a model prisoner for the past two years.

Today, the Third Circuit rejected Nerius’s argument and affirmed his sentence. The panel said that no presumption of vindictiveness applies because the new sentence was shorter than the old one, period. The fact that the sentence went from the bottom of the guideline range to near the top, with no intervening bad acts, did not trigger the presumption.

If you believe that sentencing judges put much stock in guidelines ranges and career-offender designations, you’re more likely to think this ruling is unjust. If you don’t, well, you probably don’t. In that vein, it’s interesting that the panel consisted of two former district judges and one former magistrate judge.

Joining Shwartz was Smith and Hardiman. The case was decided without oral argument.

New opinion — a Fourth Amendment reversal

U.S. v. Vasquez-Algarin — criminal / Fourth Am. — reversal — Krause

The Third Circuit today decided an interesting and important search and seizure case today, holding that officers entering a dwelling to arrest someone must at least have probable cause to believe the person is there. The opinion ably explains matters:

Law enforcement officers need both an arrest warrant and a search warrant to apprehend a suspect at what they know to be a third party’s home. If the suspect resides at the address in question, however, officers need only an arrest warrant and a “reason to believe” that the individual is present at the time of their entry. This case sits between these two rules and calls on us to decide their critical point of inflection: how certain must officers be that a suspect resides at and is present at a particular address before forcing entry into a private dwelling?

* * *

We conclude that to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause. The officers’ entry was therefore unconstitutional and, because the good-faith exception to the exclusionary rule is inapplicable here, the evidence seized from Vasquez-Algarin’s apartment should have been suppressed.

The court joined four other circuits in interpreting reasonable belief as at least functionally equal to probable cause, splitting sharply with the D.C. Circuit and less sharply with two others.

Joining Krause were Fuentes and Roth. Arguing counsel were Frederick Ulrich of the MDPA Federal Public Defender for the defendant and Daryl Bloom for the government.

New opinion — persistent police get valid consent to enter

United States v. Murray — criminal — affirmance — Barry

When police knocked on the door of a motel room, a woman inside said she was busy and to go away. A different officer knocked, and the woman again said she was busy. So the officer said he was a police officer and “asked her to open the door,” and he knocked on the window and showed his badge through the window. The woman then opened the door and let the police into the room, where they found evidence used to incriminate the defendant. The district court held that the officers’ entry into the motel room was lawful due to the woman’s voluntary, uncoerced consent. Today, noting the woman’s later testimony that she had been glad the police came and wanted to open the door, the Third Circuit affirmed.

Joining Barry were Fisher and Rendell. The case was decided without oral argument.

New opinions — a rare criminal reversal and a bankruptcy reversal

US v. Lopez — criminal — reversal — Vanaskie

Criminal defendants don’t win too many Third Circuit appeals, especially by published opinion and most especially under plain-error review. But it happened today. The court vacated Victor Lopez’s conviction for being a felon in possession of a firearm, holding that the prosecution violated Doyle v. Ohio by impeaching Lopez with his post-Miranda silence and ordering a new trial despite trial counsel’s failure to object to the error. The court ruled that the error affected the outcome because the error impacted Lopez’s credibility and the case hinged on credibility.

In a footnote, the court lamented that the Doyle error was “particularly egregious” because such errors “unfortunately resurface[] too often, threatening to undermine the integrity of proceedings in our courts.” After reiterating that it remained troubled by the recurring violations, the court “commend[ed] Assistant United States Attorney Steven G. Sanders for his forthright acknowledgment of the Doyle error during oral argument,” noting, “He was a model of professionalism in apologizing for the error at trial and vowing to take steps to avoid having this type of error recur.” Audio of the oral argument is here.

For criminal defense counsel, three prejudice points bear noting:

  1. The whole record matters. In finding that the error affected the outcome, the court didn’t just look at the testimony, it also looked at how the prosecutor argued that testimony at closing and at the questions jurors asked during deliberations.
  2. The fact that the credibility contest was between a defendant and police officers did not prevent the court from finding a reasonable probability that the error affected the outcome. Nor did the fact that the dispute was over whether the cops framed the defendant. In other words, the court recognized a reasonable probability that, without the improper impeachment, the jury would have believed that the defendant was telling the truth that the cops framed him, and that two police officers were lying when they said they found the gun on him.
  3. The court rejected the government’s argument that the Doyle error did not make a difference because the jury also had valid reasons to disbelieve the defendant (he had prior felony convictions and gave a false name when arrested).

Joining Vanaskie were McKee and Jordan. Arguing counsel were Steven Sanders for the government and my former colleague Maria Pulzetti of the EDPA Federal Community Defender for Lopez.

 

In re: World Imports — bankruptcy — reversal — Jordan

The Third Circuit today reversed a district court ruling in a bankruptcy case, holding that contractual modifications to a creditor’s maritime liens were enforceable on goods in the creditor’s possession.

Joining Jordan were McKee and Vanaskie. Arguing counsel were Brendan Collins for the creditor and David Braverman for the debtor.

New opinion — Third Circuit finds serious misconduct by prosecution, but affirms due to overwhelming evidence

Gov’t of the V.I. v. Mills — criminal — affirmance — Krause

The Third Circuit today issued a major opinion on prosecutorial misconduct, holding that the prosecution committed severe and pervasive misconduct but that the defendant was not entitled to a new trial because the evidence against him was overwhelming, his defense was implausible, and the court gave effective curative instructions. The Third Circuit found three types of misconduct: urging jurors to convict Mills to protect themselves, urging jurors to convict based on bad conduct not relevant to the charged crimes, and displaying a photo of the victim’s corpse during closing argument to evoke sympathy.

Joining Krause were Fisher and Roth. (Notably, both Krause and Fisher were prosecutors before joining the court.) Arguing counsel were Su-Layne Walker for the government and Joseph DiRuzzo III for the defendant.

New opinion — Third Circuit finds error and criticizes the prosecution, but affirms

UPDATE: the Supreme Court vacated this opinion, and on remand the Third Circuit ordered resentencing, link here.

U.S. v. Steiner — criminal — affirmance — Fuentes

The Third Circuit today held that (1) admission of a defendant’s arrest on an unrelated offense was error but the error was harmless, and (2) the district court did not erro when it refused to instruct the jury that, in order to convict the defendant of possessing various ammunition, it must be unanimous as to each type of ammunition.

With respect to the improper admission of the unrelated arrest, the court emphasized that the trial prosecutor (who is not identified in the opinion) “played a central role,” adding “we are deeply troubled by the prosecutor’s statement at trial and “admonish[ing] the government to take greater care in its representations to the trial court and not brandish Rule 404(b) so cavalierly.”

Joining Fuentes were Jordan and Vanaskie. Arguing counsel were Renee Pietropaolo for the defendant and Jane Dattilo for the government.

New opinions — another blow against class arbitration, and a plain-error sentencing reversal

Chesapeake Appalachia v. Scout Petroleum — arbitration — affirmance– Cowen

Last year in Opalinski the Third Circuit held that the availability of class arbitration is an issue for courts to decide unless the parties’ arbitration agreement provides otherwise “clearly and unmistakeably.” Today, the court held that the parties’ arbitration agreement here, which incorporated rules promulgated by the American Arbitration Assoc., did not delegate the class arbitrability decision to the arbitrators with the requisite clarity, and therefore it affirmed the district court’s order vacating the arbitrator’s decision.

Joining Cowen were Shwartz and Krause. Arguing counsel were Robert Pratter of Cohen Placitella for the appellants and Daniel Donovan of Kirkland & Ellis for the appellee.

US v. Moreno — criminal sentencing — reversal in part — Fisher

Applying plain-error review, the Third Circuit today vacated a criminal defendant’s sentence because the defendant’s right of allocution was violated when the court permitted the prosecutor to vigorously cross-examine the defendant during his allocution. The court held that the error was plain even though “no previous cases have explicitly proscribed cross-examination during allocution,” because cross-examination was clearly contrary to the purpose of allocution. Interestingly, the opinion went on to say that, even if the error here were not plain, the court would still exercise its supervisory power to hold that defendants may not be cross-examined during allocution. The court also affirmed the defendant’s conviction (concluding it was clear a Confrontation Clause violated occurred when a witness read into the record law enforcement reports, but that the error was harmless) and rejected a challenge to imposition of a sentencing enhancement.

Joining Fisher were Chagares and Jordan. Arguing counsel were Brett Sweitzer of the federal defender for Moreno and Jane Datillo for the government.