Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

Fishoff began trading securities in the 1990s. By 2009, he had earned enough money to establish his own firm, with one full-time employee and several independent contractors. Fishoff had no formal training in securities markets, regulations, or compliance. Nor did he hold any professional license. He operated without expert advice. Fishoff engaged in short-selling stock in anticipation of the issuer making a secondary offering. Secondary offerings are confidential but a company, through its underwriter, may contact potential buyers to assess interest. When a salesperson provides confidential information, such as the issuer's name, the recipient is barred by SEC Rule 10b-5-2, from trading the issuer’s securities or disclosing the information before the offering is publicly announced. Fishoff’s associates opened accounts at investment banking firms in order to receive solicitations to invest in secondary offerings. They agreed to keep the information confidential but shared it with Fishoff, who would short-sell the company’s shares.Fishoff pled guilty to securities fraud (15 U.S.C. 78j(b), 78ff; 17 C.F.R. 240.10b-5 (Rule 10b-5); 18 U.S.C. 2), stipulating that he and his associates made $1.5 to $3.5 million by short-selling Synergy stock based on confidential information. Fishoff unsuccessfully claimed that he had no knowledge of Rule 10b5-2 and was entitled to the affirmative defense against imprisonment under Securities Exchange Act Section 32, as a person who violated a Rule having “no knowledge of such rule or regulation”. The Third Circuit affirmed his 30-month sentence. Fishoff adequately presented his defense. The court’s ruling was sufficient; the government never agreed that the non-imprisonment defense applied. Fishoff did not establish a lack of knowledge. His attempts to conceal his scheme suggests that he was aware that it was wrong. View "United States v. Fishoff" on Justia Law

Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal.The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one. View "Rosa v. Attorney General United States" on Justia Law

Johnman signed a plea agreement admitting to: use of an interstate facility to entice a minor to engage in sexual conduct, 18 U.S.C. 2422(b); distribution of child pornography, section 2252(a)(2); and possession of child pornography, section 2252(a)(4). Each count and the corresponding maximum penalty appeared in an individual subparagraph and stated, “and a $5,000 special victims assessment.” A separate subparagraph aggregates all the maximum and mandatory minimum penalties in the three counts, including “an additional $15,000 special victims assessment.” Another provision stipulates that “[Johnman] agrees to pay the special victims and court assessments in the amount of $15,300 before the time of sentencing or at a time directed by this Court.” The court explained the $15,000 assessment at Johnman’s plea hearing. Johnman offered no objections.Johnman was sentenced to 368 months of incarceration, a lifetime of supervised release, $1,000 restitution, and $15,300 in special assessments. The plea agreement waived Johnson’s right to appeal or collaterally attack his convictions or sentence but permitted an appeal if “the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count.” The Third Circuit affirmed. The Justice for Victims of Trafficking Act, 18 U.S.C. 3014, applies to each conviction, not to the case as a whole. The text and context indicate that where a defendant is nonindigent, a separate $5,000 assessment applies to every qualifying count of conviction View "United States v. Johnman" on Justia Law

During the 2009-2010 term, James was a senator in the Virgin Islands Legislature. The Legislature maintained a fund for Legislature-related expenses. James used a large portion of the checks issued to him by the fund for personal expenses and his re-election campaign. James obtained these checks by presenting invoices purportedly associated with work on a historical project. In 2015, James was charged with two counts of wire fraud, 18 U.S.C. 1343 and one count of federal program embezzlement, 18 U.S.C. 666(a)(1)(A). The Third Circuit affirmed his convictions, upholding a ruling that allowed the prosecution to introduce evidence of acts outside the limitations period, 18 U.S.C. 3282(a), and the substitution of an excused juror with an alternate after the jury had been polled. The court rejected a claim of prosecutorial misconduct based on the prosecution calling two witnesses concerning an eviction dispute. The court had instructed the government not to discuss the eviction case in its opening; neither witness testified about the eviction case. The Third Circuit also upheld a ruling that permitted the use of a chart as a demonstrative aid to accompany the case agent’s testimony, with an instruction that the jury that it should consider the chart as a guide for testimony, not as substantive evidence. View "United States v. James" on Justia Law

In 2002, Holloway was convicted of a DUI at the highest blood alcohol content (BAC). The charge was dismissed upon his completion of an accelerated rehabilitation program. In 2005, Holloway was again arrested for DUI and registered a BAC of 0.192%. Holloway pled guilty to violating 75 Pa. Cons. Stat. 3802(c) for driving under the influence at the highest BAC (greater than 0.16%). He received a sentence of 60 months’ “Intermediate Punishment,” including 90-days’ imprisonment that allowed him work-release. In 2016, Holloway sought to purchase a firearm but was unable to do so because of his disqualifying DUI conviction, 18 U.S.C. 922(g)(1). Holloway sought a declaration that section 922(g)(1) is unconstitutional as applied to him. The district court granted Holloway summary judgment and entered a permanent injunction barring the government from enforcing section 922(g)(1) against him. The Third Circuit reversed. Pennsylvania’s DUI law, which makes a DUI at the highest BAC a first-degree misdemeanor that carries a maximum penalty of five years’ imprisonment, constitutes a serious crime that requires disarmament. The prohibition does not violate Holloway’s Second Amendment rights. View "Holloway v. Attorney General United States" on Justia Law

Hodge was charged with three counts of using, carrying, or possessing a firearm during the commission of a violent crime, 18 U.S.C. 924(c) after he shot two armored-vehicle workers and stole $33,500. A jury convicted Hodge of two counts. In 2015, the District Court of the Virgin Islands sentenced Hodge to an aggregate 420 months imprisonment on the two counts—the then-mandatory minimum for first-time 924(c) offenders convicted of two counts involving discharging a firearm—plus another 310 months on other counts. The Third Circuit affirmed as to the federal counts but remanded the territorial charges with instructions to vacate two territorial counts and to conduct the “requisite resentencing.” Before resentencing took place, the First Step Act became law, amending section 924(c) so that first-time offenders convicted of two counts involving discharging a firearm and stemming from the same indictment now face a 240-month mandatory minimum. The district court declined to disturb Hodge’s federal sentence. The Third Circuit affirmed. The post–First Step Act modification of Hodge’s territorial sentence does not permit Hodge to invoke the reduced section 924(c) mandatory minimum. View "United States v. Hodge" on Justia Law

Tyson contacted a 17-year-old female on Facebook to engage her in prostitution. He traveled from Pennsylvania to New York City, picked up the victim and her friend, took them to Harrisburg, Pennsylvania, then rented several rooms at a Motel 6. Phone records reveal that Harrisburg-area individuals contacted the victim to engage in commercial sexual activity. Law enforcement recovered the victim during a sting operation, interviewed her and reviewed her phone. They found a video of the victim performing oral sex on an adult male in a Motel 6 room. The man was identified as Tyson. Tyson was indicted for knowingly transporting a minor to engage in prostitution, 18 U.S.C. 2423(a) and producing child pornography, section 2251(a). Before trial, the court prohibited Tyson “from eliciting evidence to establish ‘mistake of age’” and from asserting “mistake of age” as an affirmative defense. The court found that such evidence’s “probative value is substantially outweighed by a risk that the evidence will result in unfair prejudice, confuse the issues, or mislead the jury.” Tyson entered a plea agreement, with a recommendation that his sentences be served concurrently for a total of 180 months’ imprisonment. The Third Circuit affirmed. The statutes’ text, context, and history make it clear that knowledge of age is not an element and mistake of age is not a defense. View "United States v. Tyson" on Justia Law

Bell and Robinson entered a Philadelphia store, wearing stockings over their faces. Bell grabbed an employee’s neck, pointed a weapon and threw the employee to the ground, then took cash from the register. The employee grabbed Bell. Bell hit the employee with the weapon, causing the weapon to break. The employee then realized the firearm was actually a plastic gun; he stood and attempted to stop the robbery. Bell and Robinson fled the store with $1,000.00 in cash. Bell dropped his hat, which was seized by the police for DNA testing. Approximately one year later, the police obtained a warrant for Bell’s DNA. Officers went to Bell’s residence to execute the warrant and found Bell hiding on the roof outside his bedroom window with a bag containing ammunition.Bell pled guilty as a felon in possession of ammunition, 18 U.S.C. 922(g) and to Hobbs Act robbery, section 1951(a). The court imposed a two-level enhancement for physical restraint, U.S.S.G. 2B3.1(b)(4)(B) and a four-level enhancement for use of a dangerous weapon, section 2B3.1(b)(2)(D). The court calculated a sentencing range of 77-96 months and imposed a sentence of 86 months. The Third Circuit remanded for resentencing, affirming the application of the dangerous weapon enhancement but reversing the enhancement for physical restraint. While grabbing the victim and forcing him down satisfied the physical force requirement, the victim was not left with no alternative and the restraint was quite limited in time without sustained focus on the victim. Objects that appear to be dangerous weapons are considered dangerous weapons for purposes of section 2B3.1. View "United States v. Bell" on Justia Law

Eight-year-old Quinteros and his mother came to the U.S. from El Salvador in 2001. When he was 13, Quinteros joined the gang MS-13. In 2011, Quinteros was indicted for conspiracy to commit assault with a dangerous weapon, 18 U.S.C. 1959(a)(6). The planned gang attack never occurred. Quinteros later pled guilty and was sentenced to 30 months’ imprisonment. In prison, Quinteros left MS-13 to follow Christianity. Other MS-13 members in prison told him that when he was deported “things are going to change. There’s no getting out over there.” Quinteros was charged as removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(F), (U), and (J). Quinteros checked the form box to contest his deportability but failed to follow up with additional documentation. Quinteros then sought withholding of removal. An asylum officer determined that Quinteros demonstrated a reasonable fear that he would be tortured in El Salvador. Before an IJ, Quinteros testified and presented studies and reports, that discussed the perception and treatment of individuals with tattoos in El Salvador. The Third Circuit vacated the BIA’s rejection of Quinteros’s claims. Quinteros’s conviction under 18 U.S.C. 1959(a)(6) is not an aggravated felony under 8 U.S.C. 1101(a)(43)(F), (U), or (J); conviction under section 1959(a)(6) does not require an overt act and is not a categorical match for conspiracy under the Immigration Act. View "Quinteros v. Attorney General United States" on Justia Law

A Pennsylvania Attorney General’s Office confidential informant made controlled purchases of PCP from Mitchell. Agents observed Mitchell traveling between the meeting and properties on Carlisle and Goodman Streets (owned by Mitchell’s wife’s LLC). Executing a warrant at Carlisle, agents arrested Mitchell and found keys to both properties and $2,947 in cash on Mitchell’s person. Inside the Carlisle property, agents recovered a loaded handgun, crack cocaine, marijuana, and drug paraphernalia. Inside the Goodman property, they found a loaded handgun, a photograph of and mail addressed to Mitchell, drug paraphernalia, and PCP. Later, agents searched a third property, also owned by Mitchell’s wife’s company, and found another gun, more drugs, and pictures of Mitchell. A witness testified that he purchased powder cocaine from Mitchell, weekly, in 2009-2011, including at Carlisle.The Third Circuit affirmed Mitchell’s convictions for 17 drug distribution and firearms offenses but vacated his 1,020-month sentence. The court rejected arguments that the district court failed to investigate possible juror bias; admitted statements in violation of the hearsay rule and the Confrontation Clause; and failed to instruct the jury that aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime requires that the accomplice have advance knowledge that the principal would possess a gun. Mitchell also argued that there was insufficient evidence that he aided and abetted possession of the Carlisle Street loaded firearm or constructively possessed the firearm. The court erred by relying on Mitchell’s bare arrest record to determine his sentence, without distinguishing between adjudications, adult convictions, and arrests. View "United States v. Mitchell" on Justia Law