Articles Posted in Criminal Law

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Garner asked Saber to be the getaway driver for a bank robbery. Saber, a government informant, set up his phone to send the conversation to the voicemail of FBI Agent Reed. Reed and Saber later recorded several calls with Garner, who instructed Saber to surveil the bank and that Marshall would be involved. On the day of the planned robbery, the FBI arrested Garner in Saber’s car. The FBI found on Garner’s person 17 packets of crack cocaine and, in Saber’s car, a backpack not present before Garner entered, containing ski masks, a loaded gun, gloves, two-way radios, and ammunition. Garner was convicted of conspiracy to commit armed bank robbery, 18 U.S.C. 371, attempted bank robbery, 18 U.S.C. 2113(a), and possession of a firearm in furtherance of a crime of violence and aiding and abetting that crime, 18 U.S.C. 2 & 924(c)(1) and was sentenced to 101 months’ imprisonment. Marshall, who was not charged with attempted bank robbery, was acquitted. The Third Circuit affirmed, rejecting an argument the evidence was insufficient to establish either conspiracy or an attempt to commit armed bank robbery because the chief prosecution witness was not credible. A defendant may commit an attempt even where he stops short of “the last act necessary” for the actual commission of the crime. View "United States v. Garner" on Justia Law

Posted in: Criminal Law

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In 2016, Chapman pled guilty to conspiracy to possess with the intent to distribute cocaine. After several continuances, the district court set a date for Chapman’s sentencing hearing. On the scheduled date, Chapman immediately informed the court that he was never told of the hearing due to his counsel’s error and had been unable to notify his family of his sentencing. He requested a continuance so that his family could be present and provide letters of support. The district court acknowledged that defense counsel’s error caused Chapman’s lack of notice but denied the request, stating that proceeding with the sentencing as scheduled would not impact his substantive rights. The Third Circuit vacated the sentence. The ruling constituted an abuse of discretion because it interfered with Chapman’s right to allocution as codified in the Federal Rule of Criminal Procedure 32(i)(4)(A), which allows a defendant to present any information that could persuade a court to impose a lesser sentence. View "United States v. Chapman" on Justia Law

Posted in: Criminal Law

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Daniels entered a guilty plea to one count of being a convicted felon in possession of a firearm, 18 U.S.C. 922(g)(1) and 924(e). He had at least three previous convictions under the Pennsylvania drug statute, 35 Pa. Stat. 780-113(a)(30), for possession with intent to deliver cocaine. Daniels reserved his right to challenge the government’s allegation that he was an armed career criminal under 18 U.S.C. 924(e), which triggered a 15-year mandatory minimum. Without his armed career criminal designation, his Guidelines range would have been 92 to 115 months. The Third Circuit affirmed his 180-month sentence. Section 924(e)(2)(A)(ii)’s definition of a “serious drug offense” encompasses attempts (as defined under federal law) to manufacture, distribute, or possess with intent to manufacture or distribute a controlled substance and the scope of attempt and accomplice liability under Pennsylvania law is coextensive with the meaning of those terms under federal law. View "United States v. Daniels" on Justia Law

Posted in: Criminal Law

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Goldstein was arrested for involvement in a kidnapping scheme. Prosecutors obtained a court order under the Stored Communications Act,18 U.S.C. 2703(d), compelling Goldstein’s cell phone carrier to turn over his CSLI. CSLI metadata is generated every time a cell phone connects to the nearest antenna; service providers retain a time-stamped record identifying the particular antenna to which the phone connected, which can provide a detailed log of an individual’s movements. Section 2703(d) does not require a showing of probable cause to obtain CSLI but only requires “specific and articulable facts showing that there are reasonable grounds to believe” that the CSLI is relevant and material. The district court denied a motion to suppress. Goldstein was convicted. The Third Circuit affirmed, holding that Section 2703(d) complied with the Fourth Amendment because cell phone users have no reasonable expectation of privacy in their CSLI. The Third Circuit granted rehearing after the Supreme Court’s "Carpenter" holding, that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI” and that the government’s collection of CSLI requires a showing of probable cause under the Fourth Amendment. The Third Circuit then held that the government violated Goldstein’s Fourth Amendment rights when it acquired his CSLI but nonetheless upheld the admission of Goldstein’s CSLI because the government was acting under an objectively reasonable good faith belief that obtaining CSLI under Section 2703(d) was constitutional. View "United States v. Goldstein" on Justia Law

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Wright was charged as a felon in possession of a firearm. Two juries failed to reach a verdict. Both trials involved evidence that officers saw Wright driving a car well above the speed limit. When police began to follow, Wright sped up and fled, running several stop signs. After losing sight of Wright, officers noticed skid marks and found Wright’s car in a parking lot below the road. Detectives at the top of the hill saw Wright search the rear passenger compartment, back out of the vehicle with a semi-automatic handgun in his hand, and try to “rack the slide.” They drew their weapons and told Wright to drop the gun. Wright eventually tossed the gun to the side and lay on the ground. An officer picked up the gun, which was loaded with eight rounds--one in the chamber. Wright did not present a case. After the second mistrial, the court barred a retrial and dismissed the indictment with prejudice, relying on its “inherent authority,” without citing any misconduct or any prejudice to Wright beyond the general anxiety and inconvenience of facing a retrial. The Third Circuit reversed. Under these circumstances the court lacked the inherent authority to bar the retrial and dismiss the indictment. Prejudice sufficient for the court to rely on its inherent authority to intervene in a proper prosecution occurs only where the government's actions place a defendant at a disadvantage in addressing the charges. A court’s power to preclude a prosecution is limited by the separation of powers, specifically, the executive’s law-enforcement and prosecutorial prerogative. View "United States v. Wright" on Justia Law

Posted in: Criminal Law

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Ku, a citizen of Taiwan, was admitted to the U.S. in 1997 and became a lawful permanent resident in 2002. In 2014, Ku was charged with a single count of wire fraud. Ku waived her right to an indictment and was charged by information, which alleged that Ku was managing the finances of her in-laws and defrauded her in-laws by making personal use of their accounts. The BIA determined that Ku had committed an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) because that prior conviction constituted an offense involving fraud or deceit in which the loss to the victims exceeded $10,000 and that the conviction constituted a “crime involving moral turpitude” under 8 U.S.C. 1182(a)(2)(A)(i)(I) such that, without a waiver, she is ineligible for an adjustment of status. The BIA reversed the Immigration Judge, who had granted Ku a waiver of inadmissibility under 8 U.S.C. 1182(h)(1)(B) based on the extreme hardship that her deportation would cause her U.S.-citizen children. The Third Circuit rejected Ku’s petition for review. The loss to the victims, over $10,000, was sufficiently tethered to Ku’s conviction that the conviction qualifies as an aggravated felony; wire fraud constitutes a crime of moral turpitude. The court noted that it lacked jurisdiction to review the discretionary waiver of admissibility. View "Ku v. Attorney General United States" on Justia Law

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Bistrian, a detainee at the Philadelphia FDC, awaiting trial for wire fraud was placed in the special housing unit (SHU) four times. He became an orderly, allowed to interact with other SHU inmates. A fellow inmate, Northington, asked him to pass notes between inmates. Bistrian told officers, which led to a surveillance operation. Bistrian secretly passed inmate notes to prison officials, who photocopied them and gave Bistrian the originals to pass along. Eventually, Bistrian accidentally gave a photocopy to an inmate. After his cooperation became known, he received threats and made prison officials aware of them. In June 2006, prison officials placed him in the recreation yard with Northington and other inmates, who brutally beat Bistrian. Officials yelled but did not enter the yard until more guards arrived. Bistrian suffered severe injuries. In December 2006, officials again placed him in the SHU, citing death threats against him. At a 2007 sentencing hearing, Bistrian objected to his treatment. Two days after Bistrian’s counsel pressed for an explanation of his SHU time, Bistrian was returned to the SHU. Bistrian alleges that Warden Levi, denying an appeal, said Bistrian “would never see the light of day again.” In Bistrian’s civil rights suit, the district court granted qualified immunity to some defendants but denied summary judgment on Bistrian’s "Bivens" constitutional claims. The Third Circuit affirmed in part. Bistrian has a cognizable Bivens claim for the alleged failure to protect him; an inmate’s claim that prison officials violated his Fifth Amendment rights by failing to protect him against a known risk of substantial harm does not present a new Bivens context. The punitive-detention and First Amendment retaliation claims do amount to an extension of Bivens into a new context; special factors counsel against creating a new Bivens remedy in those contexts. View "Bistrian v. Levi" on Justia Law

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Philadelphia Officers stopped a car for a traffic violation. The driver, a front passenger (Robinson), and a rear passenger, Burke, produced identification. Officers noticed the smell of marijuana and saw marijuana residue and decided to search for drugs. Burke was removed and frisked first. Fritz recovered a gun on the floor where Burke had been sitting. Burke and Robinson fled. Burke was quickly apprehended. Officer Madara broadcast that Robinson was a Black male, approximately 6’0”-6’1”, 160-170 pounds, wearing dark blue pants and a red hoodie. The description did not mention any facial hair. Officers Powell and Cherry responded. Powell viewed a photograph of Robinson on the patrol car's computer screen. Less than one minute later, the officers saw an individual (Bey). Bey was a 32-year-old, dark-skinned African-American man with a long beard, weighing about 200 pounds and wearing black sweatpants and a hooded red puffer jacket. Robinson was a 21-year-old, light-skinned African American man with very little hair under his chin and a tattoo on his neck, weighing 160-170 pounds. The officers approached Bey, who had his back to them, and ordered him to show his hands. Bey complied and turned around. Officers recovered a gun. Bey, charged as a felon in possession of a firearm, unsuccessfully moved to suppress the gun. The Third Circuit reversed. While the initial stop was supported by reasonable suspicion, the continuation of that stop, after Bey turned around and police should have realized that Bey did not resemble Robinson, violated the Fourth Amendment. View "United States v. Bey" on Justia Law

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A New Jersey woman dialed 911 and described an assailant on Grove Street as wearing a red hat, with braids, stating “he is beating her up really badly” and “I think he has a gun.” The caller hung up. East Orange police found a man matching the description (McCants) near 146 Grove Street within one minute, walking with a woman (Fulton). Officers engaged McCants and frisked him due to the “nature of the call.” During the pat down, an officer found a loaded handgun inside a fanny pack McCants was wearing. Officers placed McCants under arrest and recovered distributable quantities of heroin. Written police reports indicated that Fulton showed no signs of injury. McCants was charged with unlawful possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1) and possession with intent to distribute heroin, 21 U.S.C. 841(a); (b)(1)(C). The Third Circuit affirmed the denial of a motion to suppress and his 120-month sentence as a career offender. Viewing all the circumstances, the anonymous tip bore sufficient indicia of reliability and provided the officers with reasonable suspicion that justified the Terry stop. The caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, which were confirmed by the police. McCants had two prior convictions for second-degree robbery in New Jersey that qualified as crimes of violence under the Guidelines. View "United States v. McCants" on Justia Law

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Liao, a citizen of China, became a lawful U.S. permanent resident in 2005. In 2015, Liao had a physical altercation with his girlfriend, Yu. A neighbor called the police. Yu told responding officers that she was holding her infant son, J.Y., while Liao struck her, but that J.Y. was not “hit or hurt.” She said, however, that during the fight, J.Y. was placed on the bed and fell to the floor. Officers arrested Liao, charging him with three offenses, including endangering the welfare of a child, Pa. Cons. Stat. 4304(a)(1). Liao was convicted and served 106 days of his prison sentence. An IJ ordered Liao’s removal for committing “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment,” which rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). The Third Circuit granted a petition for review and remanded to the BIA, reasoning that the elements of his conviction do not match the elements of the crime of “child abuse” under federal law, which requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm. The Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not require such a risk. View "Liao v. Attorney General United States" on Justia Law