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

Brothers were convicted of distributing crack cocaine (21 U.S.C. 841(a)), conspiring to distribute crack cocaine, possessing a firearm in furtherance of the distribution of crack cocaine, Hobbs Act robbery (18 U.S.C. 1951(a)), and possessing of a firearm in furtherance of a Hobbs Act robbery (18 U.S.C. 824(c)). One was also convicted on two counts arising from his escape (18 U.S.C. 751(a)). Each was sentenced to 47-1/2 years in prison. The Third Circuit affirmed, rejecting claims that the district court should have granted one defendant's motion to sever because of the two additional escape and drug charges against his brother; that there was insufficient evidence to support their convictions for use of a firearm in furtherance of drug distribution in the weeks before May 31,2007; that the court erred by permitting the government's drug trafficking expert, o testify; that there was insufficient evidence of an effect upon interstate commerce to support convictions under the Hobbs Act; that the court should have granted their motion for a new trial in light of the fact that the prosecution withheld impeaching Brady material concerning a confidential informant.

Delaware's death penalty statute calls for lethal injection but does not mandate use of a particular drug, Del. Code tit. 11 sec. 4209(f). Death row inmates challenged, under 42 U.S.C. 1983, a 2011 change in the protocol, brought about by nationwide shortage of sodium thiopental. The district court declined to reopen a challenge to a previous protocol and to stay a pending execution. The Third Circuit affirmed. The purpose of the protocol is to render the inmate unconscious before execution and there was no affirmative evidence that pentobarbital, used under the 2011 protocol, fails to do so. The court was not required to consider the comparative risks of known and available alternatives.The district court acted within its discretion in finding that the use of pentobarbital did not create a demonstrated risk of severe pain.

Defendant boarded a plane in New York City and flew to Hamburg. Six months after his arrival in Germany, he sexually molested a 15-year-old boy. After serving 19 months in a German prison, defendant returned to the United States and was convicted of engaging in noncommercial illicit sexual conduct in a foreign place (18 U.S.C. 2423(c) and (f)(1)) and sentenced to 30 years in prison. The Third Circuit affirmed. The offense began when defendant boarded a plane, but the bulk of the offense was not committed in any district in the United States, so venue was proper in the Delaware district where the arrest occurred. Rejecting a facial challenge to the statute, the court stated that the statute is within the authority of Congress under the Foreign Commerce Clause.

Defendant, arrested for violating probation, was charged with knowing possession of a firearm and ammunition after having been convicted of a felony (18 U.S.C. 922(g)(1) and 924(a)(2)). The government argued that defendant had three prior felonies, meeting the requirements for enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e). Predicate offenses included a 2003 conviction for aggravated menacing, a 2004 conviction for possession with intent to deliver cocaine, and a 2007 Delaware conviction for wearing body armor while committing a felony. The Delaware statute does not limit the underlying felony to drug-related felonies. The district court ruled that the body armor conviction did not qualify and imposed a sentence of 72 months' imprisonment. The Third Circuit vacated, applying a modified categorical approach. The body armor conviction is an ACCA predicate offense because it involved the possession of cocaine with intent to distribute, "a serious drug offense." It is not vague or unexpected and does not betray fair notice to find that such an offense "involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" under 18 U.S.C. 924(e)(2)(A)(ii).

The dean of a school gave the New Jersey State Senator a "low show" well-paid job in exchange for the senator's efforts as Chairman of the Senate Appropriations Committee to obtain funding for the school. The senator also attempted to use a "no show" job as an attorney for county social services to increase his pension benefits. Both were convicted of honest services fraud (18 U.S.C. 1341, 1343 and 1346 and bribery in connection with a state agency that receives federal funds (18 U.S.C. 666(a)). The senator was also convicted of mail fraud (18 U.S.C. 1341) for the pension scheme. The senator was sentenced to 48 months and the dean to 18 months in prison. The court entered a joint restitution order for $113,187. The Third Circuit affirmed, finding sufficient evidence to support each conviction. The government's requests that grand jury witnesses voluntarily not disclose "any matters" that occurred during those proceedings did not interfere with defense access to witnesses so as to merit reversal. The court properly instructed the jury on honest services fraud or bribery, in light of the Skilling decision, and acted within its discretion in regard to testimony by the director of pension services.

Defendant was convicted of aiding and abetting the receipt of a firearm acquired outside his state of residency (18 U.S.C. 922(a)(3) & 924(a)(1)(D)) and unauthorized possession of a firearm in violation of V.I. Code Ann. tit. 14, sect. 2253(a). The Third Circuit affirmed. The district court acted within its discretion when it declined to give use immunity to a co-defendant; the ruling did not deny defendant his due process right to present clearly exculpatory evidence necessary to obtain a fair trial. There was evidence that the weapon at issue was operable and that defendant intended to conceal, rather than "immediately" report his possession of the gun.

Defendant, age 24 at sentencing, co-founded and controlled a drug trafficking organization. He was sentenced to life imprisonment for continuing criminal enterprise (21 U.S.C. 848), 360 months on each of four counts of heroin/ crack distribution (21 U.S.C. § 841(a)(1); (b)(1)(C)), 120 months on each of four counts of distribution of crack (21 U.S.C. § 841(a)(1); (b)(1)(B)), 480 months for employment of a minor to distribute drugs (21 U.S.C. 861), 480 months for distributing crack within 1000 feet of a public park (21 U.S.C. 860(a)), 240 months on each of two counts of witness tampering (18 U.S.C. 1512(b)(1) & (2)) and a 10 year mandatory minimum consecutive sentence for possession of a firearm in furtherance of drug distribution (18 U.S.C. 924(c)). All sentences were to run concurrently with life imprisonment, except the sentence for possession of a firearm, which must run consecutively. The Third Circuit affirmed all convictions, but vacated sentences for drug distribution, remanding for imposition of the otherwise applicable maximum sentence of 20 years on each count because the government failed to file notice under 21 U.S.C. 851(a)(1) with respect to enhanced sentencing. Defendant's right to self-representation was not violated when, while proceeding pro se, he was not present at two sidebar conferences during the jury charge. He acquiesced to participation by stand-by counsel. A misstatement in jury instructions did not constitute reversable error.

The former Pennsylvania State Senator was sentenced to 55 months' imprisonment, a $411,000 fine, and $2,340,839 in restitution, after conviction on 137 counts of fraud, tax evasion, and obstruction of justice. His former aide was sentenced to imprisonment of one year and one day, a $45,000 fine, and joint and several restitution of up to $792,802, after conviction on 45 counts. The Third Circuit affirmed the senator's conviction, but vacated both sentences. The court acted within its discretion in admitting evidence concerning the state Ethics Act. The content and enforcement of the Act were relevant to the claim that there were rules that the senator broke repeatedly, that those rules were clear enough for him to understand, and to show that he was deceiving the Senate when he misrepresented or omitted aspects of his actions and expenditures to avoid the perception that he had violated those rules. A juror's social media comments did not merit a new trial, nor did another juror's exposure to excluded evidence. The district court's failure to calculate a final guidelines range left the court unable to review the procedural and substantive bases of the sentence and affects the substantial rights of the parties; the court abused its discretion with respect to several aspects of sentencing.

February 9, 2004, petitioner began serving 60 months on Tennessee convictions for possession of forged securities. While serving that sentence, he was convicted of unrelated offenses in Delaware. Before that court could sentence him, the Sixth Circuit vacated his Tennessee conviction. The Delaware court imposed a sentence of 78 months, stating that time served would be credited to the Delaware conviction and that it would be up to a Tennessee judge whether a new sentence would be consecutive or concurrent. August 14, 2006, the Tennessee court resentenced petitioner to 51 months to be served concurrently with his Delaware sentence. The Bureau of Prisons considered the Tennessee sentence to have commenced in 2004 and the Delaware sentence to have commenced when it was imposed in 2006, aggregated the sentences such that only about half of the Tennessee sentence overlapped with the Delaware sentence, resulting in a total term of 103 months. The district court denied habeas corpus. The Third Circuit affirmed. The Tennessee sentence was appropriately treated as commencing in 2004, consistent with interpretation of 18 U.S.C. 3584(c); the disputed time was served on the Tennessee sentence. Since the statute prohibits double crediting, petitioner is not also entitled to have the time counted toward his Delaware sentence.

Defendant was convicted of being a felon in possession of a firearm (18 U.S.C. 922(g)(1)), possessing heroin with the intent to distribute, (21 U.S.C. 841(a)(1), (b)(1)(C)), and possessing a firearm in furtherance of a drug trafficking crime (18 U.S.C. 924(c)(1)(A)(i)). The Third Circuit vacated and remanded. A jury instruction that "You may also consider any statements made or omitted by the defendant," improperly invited the jury to infer intent from defendant's post-arrest, post–Miranda warnings silence, in violation of his right to due process. Because the government's evidence of intent to distribute was circumstantial, the error was not harmless.