Articles Posted in Criminal Law

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Azcona-Polanco, a citizen of the Dominican Republic, was admitted to the U.S. as a lawful permanent resident in 1972. In 1994, he was ordered removed based upon a conviction for heroin distribution but never left the country. In 1997, Azcona-Polanco was convicted of conspiracy to violate federal narcotics laws and sentenced to 168 months’ incarceration. He was deported in 2009, after his incarceration, but re-entered illegally and assumed an alias, having purchased a citizen’s birth certificate and Social Security card. Azcona-Polanco was arrested and pled guilty to illegal reentry, 8 U.S.C. 1326(a); (b)(2). His sentencing range was 41-51 months. The Guideline range for a term of supervised release was one to three years, with a maximum of three years, 18 U.S.C. 3583(b)(2). Azcona-Polanco was presumptively exempt from supervised release as a deportable immigrant, U.S.S.G. 5D1.1(c). The Presentence Investigation Report and sentencing memorandum noted that presumption. The court sentenced Azcona-Polanco to 41 months’ imprisonment and three years’ supervised release, stating, “in case he does illegally reenter the United States he must report in person to Probation.” Azcona-Polanco did not object to the imposition of supervised release. The Third Circuit affirmed. A district court is permitted to impose a term of supervised release on a deportable immigrant “if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” View "United States v. Azcona-Polanco" on Justia Law

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In the Orthodox Jewish tradition, a woman cannot obtain a religious divorce until her husband gives her a “get” contract. A woman who leaves her husband without obtaining a get becomes an “agunah,” subject to severe social ostracism. She may seek relief in a “beth din” rabbinical court, which may authorize the use of force to secure a get. To assist an agunah to obtain a get is a religious commandment of the Orthodox Jewish faith. Stimler, Epstein, and Goldstein participated in the beth din process, working with “muscle men” to kidnap and torture husbands. An FBI agent posed as an agunah and approached Epstein, who stated that “what we’re doing is basically gonna be kidnapping a guy for a couple of hours and beatin’ him up and torturing him.” On the day of the kidnapping, the rabbis and “tough guys” assembled. Goldstein and Stimler arrived in disguise. The three defendants were charged with substantive kidnapping, attempted kidnapping, and conspiracy to commit kidnapping. The government obtained a court order, under the Stored Communications Act, compelling AT&T to turn over historic cell site location information to obtain 57 days of Goldstein’s location history. The Third Circuit affirmed the convictions of the three men, rejecting a due process claim, challenges to evidentiary rulings, and challenges to jury instructions. Respect for religious beliefs cannot trump legitimate government objectives, such as public safety. View "United States v. Stimler" on Justia Law

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After their three-year-old adopted son died, U.S. Army Major John Jackson and his wife, Carolyn, were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child. The New Jersey law offenses were “assimilated” into federal law under the Assimilative Crimes Act, 18 U.S.C. 13(a), which “borrows” state laws to fill gaps in federal law for crimes committed on federal enclaves. The Jacksons’ crimes occurred within the special maritime and territorial jurisdiction of the U.S. (Picatinny Arsenal Installation). Using the offense guidelines for assault, U.S.S.G. 2A2.3, and aggravated assault, U.S.S.G. 2A2.2, the Probation Office calculated both defendants’ Guidelines range as 210-262 months. The government calculated a range of 292-365 months. The court declined to calculate the applicable sentencing ranges under the U.S.S.G., reasoning that there was no “sufficiently analogous” offense guideline, sentenced Carolyn to 24 months of imprisonment plus supervised release, and sentenced John to three years of probation plus community service and a fine. The Third Circuit vacated the sentences, adopting an “elements-based” approach, but concluding that the assault guideline is “sufficiently analogous” to the Jacksons’ offenses. The district court failed to make the requisite findings with respect to the Guidelines calculation and the statutory sentencing factors. While the court could consider what would happen if the Jacksons had been prosecuted in state court, it focused on state sentencing practices to the exclusion of federal sentencing principles. The sentences were substantively unreasonable. View "United States v. Jackson" on Justia Law

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Johnson was convicted in Florida, for lying on a passport application, then convicted in the Virgin Islands, for wire fraud. In both instances, Johnson received a custodial sentence followed by supervised release, the conditions of which would be violated if he committed another crime. Johnson was already imprisoned on the first charge when he was indicted, convicted, and sentenced on the second; he effectively served one aggregate prison term for both convictions. After Johnson was released in 2014, the Florida Probation Office took charge of his supervision. Aside from a June 2014 phone call that he initiated, Johnson had no contact with the Virgin Islands Probation Office. In January 2015, Johnson was again indicted in Florida for lying on a passport application; he pled guilty. In April 2016, a Florida district court entered a judgment of revocation, sentencing him to time served. The Virgin Islands Probation Office took no action until March 2016, when it learned of Johnson’s new indictment. The Virgin Islands District Court began the process of revoking Johnson’s Virgin Islands supervised release. Johnson argued that the Florida judgment of revocation eliminated the Virgin Islands term of supervised release, leaving nothing to supervise or revoke and that the Virgin Islands Probation Office’s abdication of its supervisory responsibility deprived that court of jurisdiction. The Third Circuit affirmed the rejection of those arguments and imposition of an 18-month sentence. View "United States v. Johnson" on Justia Law

Posted in: Criminal Law

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Lambert was charged as a co-conspirator with and accomplice to Tillman’s 1997 acts of murder (Tilman’s former girlfriend’s mother), aggravated assault (Tilman’s former girlfriend), and burglary. Their trial was joint. Before trial, Tillman admitted to the act and claimed mental illness. He made statements to his expert psychiatrist that Lambert had given Tillman a gun. The prosecution presented no direct evidence of any criminal plan between Lambert and Tillman before Tillman’s third return to the house. It relied only on their prior friendship, Lambert’s presence, and that Lambert drove Tillman away after witnessing the shooting. Recognizing that Tillman (who did not testify) would not be subject to cross-examination when the psychiatrist recounted his statements, the trial judge required counsel to redact facially incriminating references to Lambert from that testimony. At trial, the psychiatrist’s testimony, in context, implicated Lambert, who was convicted and sentenced to life imprisonment. The Third Circuit vacated and remanded for an evidentiary hearing to determine whether the Commonwealth used Tillman’s testimonial statements for their hearsay purpose and, if so, whether trial counsel was ineffective in failing to request a limiting jury instruction. The court found ”some merit to his argument that his Confrontation Clause rights were violated.” View "Lambert v. Warden Greene SCI" on Justia Law

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Vickers punched his victim once but the victim suffered a fractured skull, brain hemorrhaging, and was in a coma for four days. Pennsylvania law provides that for a criminal case to be tried without a jury, “[t]he judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant’s attorney.” Those procedures were not followed in Vickers’s case. The judge found Vickers guilty. Vickers sought state post-conviction relief, claiming ineffective assistance of counsel. Because Vickers’s private attorney had been replaced by a public defender, the attorney was unaware that the process had not been followed, but recommended that Vickers pursue a bench trial for strategic reasons and thought that Vickers wanted a bench trial. The court concluded that Vickers “freely, voluntarily, and intelligently waived his jury trial rights.” Vickers sought habeas relief, 28 U.S.C. 2254. The Third Circuit reversed the district court’s grant of relief. The proper prejudice inquiry is whether there is a reasonable likelihood that, but for his counsel’s deficient performance, Vickers would have exercised his Sixth Amendment right to a jury trial. He failed to make that showing. View "Vickers v. Superintendent Graterford SCI" on Justia Law

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Officers executed sealed search warrants at the home and office of Fattah. More than two years later, a grand jury indicted Fattah on 23 counts relating to bank fraud and tax evasion. Before the indictment, the press learned about the investigation; reporters waited at Fattah’s home to report the story. At Fattah’s trial, an FBI agent admitted that he had disclosed confidential information to a reporter in exchange for information pertinent to the investigation. Fattah argued that the agent’s conduct violated the Sixth Amendment because the pre-indictment press caused him to lose his job, which rendered him unable to retain the counsel of his choice, and that the agent’s conduct violated his Fifth Amendment right to due process. The Third Circuit affirmed Fattah’s convictions, noting that Fattah’s claim to unrealized income was contradicted by his statements and actions and that the FBI agent’s actions were not “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” View "United States v. Fattah" on Justia Law

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Francis was identified by an eyewitness as the triggerman in a 2011 fatal shooting on St. Thomas. Francis admitted that he was present during the shooting and claimed Fahie wielded the weapon. Both Fahie and Francis were charged with the murder and related crimes. Francis worked out a plea deal: in exchange for reduced charges, he agreed to testify against Fahie, which he did, swearing that Fahie was the sole shooter. The jury found Fahie guilty. After an unsuccessful appeal to the Virgin Islands Supreme Court, Fahie successfully petitioned the Third Circuit certiorari. That court concluded that it had jurisdiction under the 2012 version of the Organic Act, 48 U.S.C. 1613; upheld the decision to give an “aiding and abetting” instruction, concluding that the theory was presented at trial; and declined to address whether the V.I. Supreme Court used the correct standard to assess whether another supposed error in the jury instructions was harmless. View "Fahie v. People of the Virgin Islands" on Justia Law

Posted in: Criminal Law

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Counsel was ineffective in failing to object to jury instruction concerning eyewitness testimony, using the words “may not” rather than “need not.” Bey was convicted of murder, attempted murder, and possessing an instrument of crime, based on a nonfatal shooting and a fatal shooting that took place in 2001. Philadelphia Police Officer Taylor was in the parking lot during the shooting: his identification of Bey as the shooter was consistent and unequivocal. However, in statements to Bey’s then-defense counsel, the surviving victim said that his shooter was not Bey. Defense counsel requested a “Kloiber” jury instruction. In instructing the jury, the court changed a word, telling jurors that they “may not” receive an identification with caution rather than instructing them that they “need not” receive the identification with caution. Defense counsel did not object. In his unsuccessful petition for state post-conviction relief, Bey raised an ineffective assistance of counsel claim based on the Kloiber instruction, but failed to highlight the “may not” language. The federal district court held that, to the extent that Bey’s ineffective assistance claims were not procedurally defaulted, Bey could not show prejudice because “there was overwhelming evidence of guilt.” The Third Circuit reversed, based on the Kloiber claim, finding cause to excuse Bey’s procedural default. View "Bey v. Superintendent Greene SCI" on Justia Law

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Conviction for failing to report murder does not preclude eligibility for withholding of removal. Flores, a Guatemalan native, entered the U.S. illegally. In 2007, she began and ended a relationship Sibrian. Flores returned to South Carolina with a new boyfriend, Perez, in 2008; Sibrian killed Perez. Flores claims she did not report the murder because Sibrian threatened to kill her and her three-year-old daughter. Flores eventually pleaded guilty to accessory after the fact for failing to report the murder. There was no evidence that Flores covered up the homicide, lied to law enforcement, or assisted Sibrian. After serving her prison term, Flores was removed. She re-entered illegally, was arrested for prostitution, and was detained. She stated that she feared returning to Guatemala because: her father wanted to kill her; she had been raped by local gang member following her previous removal; and she feared persecution as a lesbian. The asylum officer determined that Flores had a reasonable fear of persecution. An IJ found that Flores’s accessory conviction rendered her ineligible for withholding of removal and that Flores failed to adequately establish that she would be subjected to torture in Guatemala, as required by the Convention Against Torture. The BIA affirmed. The Third Circuit remanded. Flores’s accessory-after-the-fact conviction is not an offense “relating to obstruction of justice,” nor is it an “aggravated felony” or a “particularly serious crime” under the statute; Flores is eligible for withholding of removal. View "Flores v. Attorney General United States" on Justia Law