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

Bencivengo, former Mayor of Hamilton Township, New Jersey, was convicted of violating, the Hobbs Act, 18 U.S.C. 1951(a) and section 2, and the Travel Act, 18 U.S.C. 1952(a)(1) and (3) and section 2, premised on the New Jersey bribery statute, N.J.S.A. 2C:27-2.2, for accepting money from Ljuba in exchange for agreeing to influence members of the Hamilton Township School Board to refrain from putting the School District’s insurance contract up for competitive bidding. Ljuba, the district’s insurance broker and a friend of Bencivengo’s, personally earned between $600,000 and $700,000 in commissions from insurance contracts with the district in 2011 alone. Bencivengo, facing financial difficulties , persuaded Ljuba to have her husband write a check with a memo line that the check was for a “cherry bedroom set” and to give him money during a trip to Atlantic City so that it would appear that he won the money gambling. The Third Circuit affirmed, rejecting a claim of double jeopardy and a challenge to the conduct of the judge.View "United States v. Bencivengo" on Justia Law

After receiving a tip in 2005, the DEA began monitoring calls between a confidential informant and Velazquez, tracked co-defendants, recovered nine kilograms of cocaine, and arrested the two co-defendants. An arrest warrant issued for Velazquez in August 2005. The DEA declared Velazquez a fugitive and turned his apprehension over to the U.S. Marshals, which entered Velazquez’s information in the Warrant Information Network. An assistant U.S. attorney sent a copy of the warrant to Velazquez’s counsel, who stipulated that he received it. Neither that attorney nor Velazquez appeared at the arraignment. From November 2005 until November 2010, authorities checked the National Crime Information Center eight times to see if any agency had encountered Velazquez. A DEA agent checked with the U.S. Attorney’s Office annually to make sure the office was still willing to prosecute, ensured that the warrant was still active in the NCIC, and contacted the Marshals Service to ask if they had new information. He put Velazquez on the “Most Wanted” section of the Philadelphia DEA website, but not on the Los Angeles site, where authorities believed Velazquez was living. No law enforcement agency visited addresses identified in 2005 or returned to the home of Velazquez’s brother; no one contacted his parents, his attorney or the Los Angeles agent; and no one searched commercial or other governmental databases. Velazquez was apprehended in 2011, in California on an unrelated narcotics charge. The district court denied his motion to dismiss on speedy trial grounds. The Sixth Circuit reversed, applying the four-factor test from two Supreme Court decisions.View "United States v. Velazquez" on Justia Law

In 2009-2010, Delaware, Maryland, and New Jersey had a wave of pharmacy burglaries. The FBI joined the investigation. A suspect emerged: an electrician, Harry Katzin, had recently been caught burglarizing a pharmacy; his brothers also had histories of burglary and theft. Over the following months, the Katzins were repeatedly seen outside pharmacies where phone lines had been cut. After consulting with the U.S. Attorney, but without obtaining a warrant, the FBI affixed a “slap-on” GPS tracker to the exterior of Harry’s van. Within days, state troopers stopped the van on a Pennsylvania highway. Local police notified the troopers that the pharmacy closest to where the van had been parked had been burglarized. Inside the van, troopers found the Katzin brothers. From the outside they could see pill bottles and pharmacy storage bins. The police impounded the van and arrested the brothers. The district court suppressed the evidence found in the van. The Third Circuit initially affirmed. On rehearing, en banc, the Third circuit reversed and applied the good faith exception. While law enforcement officers may one day unreasonably rely on non-binding authority, under these facts, the agents’ conduct was not “sufficiently deliberate” that deterrence will be effective nor “sufficiently culpable” that deterrence outweighs the costs of suppression. View "United States v. Katzin" on Justia Law

After a staged drug deal and attempting to hire a hit man to kill the confidential informant involved in the set-up, Boney was convicted of conspiracy to possess with intent to distribute 500 grams or more of cocaine, 21 U.S.C. 841(a)(1), (b)(1)(B), & 846; attempting to retaliate against the confidential informant, 18 U.S.C. 1513(a)(1)(B); and solicitation of a person to retaliate against a witness, victim, or informant, 18 U.S.C. 373. The district court sentenced Boney to a term of imprisonment of 220 months on each count and ordered the sentences to run concurrently. The Third Circuit affirmed Boney’s conviction, but concluded that the district court misapplied the Sentencing Guidelines and vacated the sentence and remanded for resentencing. View "United States v. Boney" on Justia Law

Solomon became the police chief of East Washington, Pennsylvania, after a decade as a part-time officer. He earned $36,100 a year and was not allowed to moonlight. Solomon's behavior while going through a divorce attracted the attention of authorities, who used a confidential informant. After providing security for two staged drug deals, Solomon accepted cash, and paid the CI. He sold law enforcement-restricted Tasers for use to collect drug debts. Solomon pled guilty to extortion under color of official right, Hobbs Act, 18 U.S.C. 1951. The U.S. Probation Office’s Presentence Investigation Report deducted three levels for acceptance of responsibility. He had no prior criminal history; his initial Guidelines range was 30 to 37 months’ imprisonment, but U.S.S.G. 2C1.1 includes a cross-reference: If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the guideline applicable to a conspiracy to commit that other offense, if greater than that determined above. Under the Guideline for conspiracy to commit cocaine trafficking, involving a large quantity of (fake) cocaine, with a 2-level enhancement for possession of a dangerous weapon, the range was 108 to 135 months. The prosecution also sought a 2-level enhancement for abuse of a position of trust. The court ultimately sentenced Solomon to 135 months, the bottom of his final range. The Third Circuit affirmed application of the cross-reference but reversed application of the abuse of trust enhancement and remanded. View "United States v. Solomon" on Justia Law

Vanterpool was convicted under V.I. Code tit. 14, section 706(1) for obsessive phone calls and faxes to his ex-girlfriend Jacqueline Webster. On appeal, he argued that: Section 706 was unconstitutional under the First Amendment; that his trial counsel’s performance amounted to an ineffective assistance of counsel under the Sixth Amendment; and that there was sufficient evidence in the record to support Vanterpool’s multiple convictions. The Third Circuit remanded. While the First Amendment challenge would have been viable had it been raised during trial, the plain error standard precluded relief on appeal. Trial counsel’s failure to preserve the First Amendment challenge satisfied the prejudice prong of the Strickland test, but the record was insufficient regarding whether trial counsel’s performance fell below professional norms. View "Government of the VI v. Vanterpool" on Justia Law

Lewis, Shavers, and White committed an armed robbery of a North Philadelphia “speakeasy” in 2005, pointing firearms at customers and employees, ordering them to the floor, and threatening to shoot. They were charged with Hobbs Act robbery, 18 U.S.C. 1951(a), and conspiracy to commit Hobbs Act robbery; using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c); and attempted witness tampering. The district court instructed the jury that Lewis was charged with “using and carrying a firearm during the crime of violence.” The jury found the three guilty of the Hobbs Act violations and the section 924(c) violation. Lewis was sentenced to 57 months on the Hobbs Act counts and 84 months’ incarceration, the mandatory minimum, on the section 924 count, for “brandishing” a firearm. The Supreme Court remanded in light of its decision in Alleyne v. U.S., concerning imposition of a mandatory minimum sentence based upon facts that were never charged or found by a jury beyond a reasonable doubt. The Third Circuit affirmed Lewis’s sentence, reasoning Alleyne error of the sort alleged here is not structural, but is subject to harmless or plain error analysis under FRCP 52. Lewis essentially conceded that the evidence supported the finding that he brandished a firearm; other testimony clearly demonstrated that Lewis went beyond “use” of a firearm. Given “overwhelming and uncontroverted evidence” in support of the brandishing element, had the jury been properly instructed, it would have found that element beyond a reasonable doubt. Any error was therefore harmless. View "United States v. Lewis" on Justia Law

Pennsylvania State Police and the U.S. Drug Enforcement Administration worked with confidential informants and identified Beaver County cocaine distributor, Taylor, and, through wiretaps, were able to observe part of a delivery of cocaine. According to Taylor, who later testified for the government, he drove to a hotel near the Pittsburgh Airport carrying a bag full of cash. He met with the cocaine supplier, Middlebrooks from Houston, who drove to Washington County to pick up the drugs for transfer to Taylor. The DEA obtained a “roving wiretap” on Taylor’s communications, which was used to follow a second transaction between Taylor and Middlebrooks. Agents saw Middlebrooks back his vehicle up to a tractor-trailer rig, open his trunk, and then hand the bag full of packaged cash to a man (Shannon) standing beside the rig. Taylor and Middlebrooks were taken into custody. A black bag containing a large amount of cocaine was found in the trunk of Middlebrooks’s car. Shannon was arrested at the truck stop. Agents found the bag, which contained $669,340, plus $1000 in the truck’s glove compartment. The Third circuit vacated Shannon’s conviction because the government asked inappropriate questions regarding Shannon’s post-arrest silence, in violation of his Fifth Amendment rights. View "United States v. Shannon" on Justia Law

Christopher was a troubled man with a long history of mental health and substance abuse problems. He committed suicide in 2004, while in custody at the Howard R. Young Correctional Institution (HRYCI) in Wilmington, Delaware, awaiting transportation to the Violation of Probation Center in Sussex County, Delaware. He had been arrested the previous day on an administrative warrant. Christopher was on probation for a domestic abuse conviction, and had been arrested for loitering while waiting to purchase drugs. His widow and children sued. The Third Circuit affirmed the district court, holding that prison administrators are not entitled to qualified immunity from an Eighth Amendment claim that serious deficiencies in the provision of medical care by a private, third-party provider resulted in an inmate’s suicide. View "Barkes v. First Corr. Med. Inc." on Justia Law

While Husmann was on supervised release for a child pornography conviction, the Probation Office received an alert indicating that his computer had accessed pornographic websites. An agent visited his residence, seized flash drives, and referred the case to the FBI. With a warrant, FBI agents searched Husmann’s home and seized computers. Husmann admitted to downloading, saving, and viewing images stored on the seized flash drives. The FBI found 4,000 images of child erotica and peer-to-peer file sharing programs on Husmann’s computer, Limewire and 360 Share Pro, which enable users to search, browse, and download electronic files directly with other users, rather than through central servers. Users make their files accessible by placing them in a designated folder that is available to the network. Placing files into a shared folder does not automatically transmit them to another computer unless another program user downloads them. Review of Husmann’s log file revealed that child pornography files were placed in a shared folder on 360 Share Pro, allowing others access, but it was not clear when these files were loaded to the shared folder nor whether the files were ever downloaded to another machine. Husmann was convicted of knowingly possessing and distributing child pornography, 18 U.S.C. 2252(a). The Third Circuit vacated the distribution conviction. A conviction for distributing child pornography requires evidence that another person actually downloaded or obtained the images stored in the shared folder. View "United States v. Husmann" on Justia Law