Philadelphia Criminal Defense Lawyer Blog

Seventh Circuit Reiterates the Importance of a Suspect Invoking Right to Counsel

Thu, 28 Mar 2013 09:00:00 -0500

In United States v. Hunter, officers stopped a truck after they witnessed occupants apparently engaging in a drug deal. Hunter fled from the passenger seat with something resembling a gun in his hand. Officers ordered Hunter to stop, but Hunter continued to run. The officers heard a gunshot and fired at Hunter, striking him in the left buttock and in the foot. Hunter fell to the ground and was handcuffed. Police recovered a revolver from the ground close to Hunter, with one spent shell casing in the cylinder. Hunter was transported to a hospital by ambulance.

A Detective Karzin accompanied Hunter to the hospital, and Hunter was handcuffed to the hospital gurney at all times. Doctors administered narcotics, but a treating nurse later testified that he had remained “alert and oriented.” While Hunter was receiving treatment, Karzin sat silently in the room until Hunter initiated interaction. Karzin read Hunter his Miranda rights. At some point, Hunter gave the name of his lawyer and asked if Karzin would call him. Karzin did not do so. Hunter made incriminating statements to officers who arrived after the conversation. The district court suppressed the statements. The Seventh Circuit affirmed, stating that because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

Another Strong Affirmation of the Fourth Amendment’s Protections

Tue, 26 Mar 2013 09:00:00 -0500

In United States v. Black, No. 11-5084 (3:10-cr-00206-MOC-1) (Feb. 25, 2013), two officers in Charlotte began to follow a car as it left a gas station. The driver, Dior Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot. After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests. When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip. An officer seized the gun and other officers began frisking the other men.

When another officer began talking to the men, Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information." It showed that he was living in another part of Charlotte. He told the officer he was visiting friends. The officer kept Black's ID and "pinned it to his uniform" while questioning the others. Another officer described Black as "extremely cooperative." While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route. Black got up and started to leave, but was told he wasn't free to go. He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt"). A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black. He was charged with being a felon in possession of a firearm. His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress. The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID. Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene. The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure. The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."

Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search.

Supreme Court of the United States says: The Holding of Padilla v. Kentucky Will Not Apply Retroactively

Thu, 21 Mar 2013 09:00:00 -0500

In United States v. Chaidez, No. 11–820, (February 20, 2013). The Supreme Court of the United States held that it’s earlier decision in Padilla v. Kentucky, holding that the Sixth Amendment requires defense attorneys to inform criminal defendants of the deportation risks of guilty pleas, does not apply retroactively to cases already final on direct review.

Roselva Chaidez came to the United States from Mexico in 1971; she became a lawful permanent resident in 1977. In 2003, she was indicted in the U.S. District Court for the Northern District of Illinois on three counts of mail fraud in connection with an insurance scheme. On the advice of her attorney, Chaidez pleaded guilty and received a sentence of four years of probation. The U.S. government initiated removal proceedings in 2009 under a federal law that allows deportation of any alien who commits an aggravated felony. Chaidez’s attorney never told her that pleading guilty could lead to her deportation.

Chaidez filed for a writ of coram nobis, arguing ineffective assistance of counsel. While this motion was pending before the district court, the U.S. Supreme Court issued its decision in Padilla v. Kentucky, holding that it is ineffective assistance of counsel when an attorney fails to advise a client that he or she may face deportation as a result of pleading guilty. The district court concluded that Padilla did not announce a new rule, so its holding applied to Chaidez's case. The U.S. Court of Appeals for the Seventh Circuit reversed, holding that Padilla does announce a new rule and is not retroactively applicable in this case.

The Supreme Court held that the Padilla ruling created an entirely new rule relating to whether advice about deportation fell under the scope of the Sixth Amendment right to counsel. Because the Court considered this rule separately from previous cases, it was considered a new rule and therefore could not retroactively apply to already decided cases.

Police Need Probable Cause to Seize Someone Who Has Left The Immediate Vicinity of a Place Where a Search Warrant is Being Executed

Mon, 18 Mar 2013 09:00:00 -0500

In Bailey v. United States, the Supreme Court of the United States held that the rule of Michigan v. Summers (1982), which permits the detention of persons found on the premises during the lawful execution of a search warrant, does not extend beyond the premises’ immediate vicinity. In Bailey, police officers saw Bailey leaving an apartment shortly before they planned to execute a search warrant. They detained him approximately a mile away and discovered a key to the apartment – in which other officers had found a gun and drugs – in his pocket. When federal prosecutors brought charges against him, Bailey sought to have the key (as well as his statement to police officers) suppressed on the ground that his detention violated the Fourth Amendment. The district court denied his motion, holding that the detention was justified by the Court’s decision in Michigan v. Summers and, in the alternative, by Terry v. Ohio (1968). The jury found Bailey guilty. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed. It read Summers to permit detaining the occupant of premises being searched pursuant to a valid warrant when the occupant leaves those premises so long as the detention is made “as soon as reasonably practicable.”
On appeal, the government relied on the Summers rule to justify the stop and detention of Bailey. The government argued that Summers was a bright-line rule that justified his detention, as he had been the recent occupant of a location subject to a lawful search warrant.
The Supreme Court noted that the Summers Rule was based on three justifications, “officer safety, facilitating the completion of the search, and preventing flight.” The Supreme Court then found that these justifications were not present under the given facts.
Accordingly, the Court held that the application of the Summers rule is limited to “the immediate vicinity of a premises to be searched . . .” Justice Kennedy went on to write that, “Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.” Because Bailey was detained at a point beyond any reasonable understanding of “immediate vicinity”, his detention was not justifiable.

Third Circuit Rules that Contraband Found in Shared Cell is Sufficient to Warrant Loss of Good Time Credits

Thu, 14 Mar 2013 09:00:00 -0500

In Denny v. Schultz, No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.

After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.

On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.

Police Can Record Video Inside Your Home Without A Warrant

Mon, 31 Dec 2012 09:00:00 -0500

In United States v. Wahchumwah, 2012 U.S. App. LEXIS 24296 (9th Cir. Nov. 27, 2012), Defendant contended that his Fourth Amendment rights were violated when an undercover agent who was invited into his home used a concealed audio-video device to record an illegal transaction defendant conducted in his home.

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

On October 7, 2008, Romero sent Wahchumwah a text message stating that he would be visiting family who lived near Wahchumwah the following week and would like to stop by Wahchumwah's home. Wahchumwah agreed, and a week later Romero visited Wahchumwah in his residence wearing a concealed audio-video recording device. During the visit, Wahchumwah showed Romero a blue spiral notebook containing a number of eagle plumes. Romero examined the plumes and purchased a pair for $100. During the visit, Wahchumwah mentioned to Romero that Wahchumwah had previously bought eagle tails from a friend.

On March 11, 2009, a team of Fish and Wildlife Service agents executed a search warrant on Wahchumwah's home and its outbuildings. Wahchumwah was arrested and later convicted by a jury.

Wahchumwah appealed, contending that his Fourth Amendment rights were violated when the agent recorded the secret video. The Court of Appeals disagreed, noting that the Fourth Amendment's protection did not extend to information that a person voluntarily exposed to a government agent, including an undercover agent. The Court wrote, “When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.”

Court Grants Motion to Suppress Based on Warrantless Search Where No Exigent Circumstances Existed

Wed, 26 Dec 2012 09:00:00 -0500

In United States v. Delgado, 2012 U.S. App. LEXIS 24549 (7th Cir. Nov. 29, 2012), Appellant's convictions for being a felon in possession of a firearm and possession of an unregistered firearm were the result of police officers' warrantless search of his apartment.

On December 29, 2010, a Milwaukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13th Street. A witness then told the officer that her cousin Adrian Aviles had been shot by a black male and that he was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant Luis G. Delgado, who was the Hispanic male seen earlier, and Aviles, the shooting victim - who had a visible graze wound on his wrist - came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apartment finding various firearms.

Delgado was indicted for being a felon in possession of a firearm and for possessing an unregistered firearm. Delgado moved to suppress. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado's motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.

The Court of Appeals disagreed, finding that absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apartment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment. Because the search was not a valid protective sweep and was not justified by the exigent circumstances exception to the warrant requirement, the district court erred in denying appellant's motion to suppress the firearms. For these reasons, appellant's convictions were vacated and the case was remanded to the district court with instructions to grant the suppression motion.

What You “Need to Know” to Help Make Meth

Fri, 21 Dec 2012 09:00:00 -0500

In United States v. Munguia, 2012 U.S. App. LEXIS 24294 (9th Cir. Nov. 27, 2012), Appellant was charged with drug conspiracy and possession. She was alleged to have purchased a significant amount of pseudoephedrine at the direction of one of her co-defendants. Pseudoephedrine is a common ingredient in many over-the-counter cold medications, including Sudafed, Claritin-D, and similar cold-and-allergy medications. Pseudoephedrine is also a methamphetamine precursor, and is therefore strictly regulated.

The key issue at trial was whether Munguia knew or had reason to know that the drugs she purchased were being used to manufacture methamphetamine. Given this focus, she requested a jury instruction explaining that "reasonable cause to believe" must be evaluated from her perspective, based on her knowledge and sophistication. The District Court refused her request. On appeal, the Court of Appeals held that the district court erred in failing to give defendant's requested jury instruction and that the error was not harmless. The instruction given by the district court provided that "reasonable cause to believe" had to be evaluated from the perspective of a hypothetical reasonable person rather than from the perspective of defendant. The "reasonable cause to believe" standard of § 841(c)(2) required a jury to evaluate scienter through the lens of the particular defendant on trial. The jury therefore had to be instructed to consider the knowledge and sophistication of the particular defendant on trial, not that of a hypothetical reasonable person not before the court. The error was not harmless because it was not clear beyond a reasonable doubt that a rational jury would have found defendant guilty absent the error. The appellate court reversed Munguia’s convictions.

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

Wed, 19 Dec 2012 11:00:00 -0500

In United States v. Turlington, 2012 WL 4237611 (3d Cir. Sept. 21, 2012), defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). In 2004, he was sentenced by the District Court of the Third Circuit to eighty-four months' imprisonment and sixty months' supervised release. His sentence was less than one-third of that recommended by the Sentencing Guidelines.

On October 29, 2008, Turlington began his term of supervised release. On September 6, 2009, Turlington was charged with driving under the influence in New Jersey. Then, on December 7, 2009, New Jersey state police observed Turlington engaging in three hand-to-hand drug transactions. When the police approached Turlington and announced themselves, he attempted to flee. During flight, Turlington threw a loaded handgun to the ground. The state police eventually arrested him, and found $245 in cash and a plastic bag of cocaine. Turlington pleaded guilty to a state charge of possessing a weapon while committing a controlled dangerous substance crime. However, by this time, the Fair Sentencing Act of 2010 amendments had reduced the maximum term of imprisonment for Turlington’s original offense, such that it became a class B felony, which would permit only three years of imprisonment upon revocation of supervised release.

The Third Circuit held that where an underlying offense was a class A felony at the time of conviction, but had since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), was still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction. Thus the District Court did not plainly err in sentencing Turlington to five years' imprisonment, a term which was clearly authorized by § 3583(e)(3).

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

Wed, 12 Dec 2012 09:00:00 -0500

In United States v. Ware, 2012 WL 4216831 (3d Cir. Sept. 21, 2012) Defendants, each designated career offenders, were ultimately sentenced based on the federal crack cocaine guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010.

In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2)."). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining "applicable guideline range" to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of "based on" in the federal statute as defined by Freeman. The government appealed.

In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission's new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:
... Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)....U.S.S.G. § 1B1.10 cmt. 1(A).

Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of "based on" in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced "based on" a sentencing range that has been lowered, also requires any reduction be "consistent with applicable policy statements issued by the Sentencing Commission." Therefore, the plain language of the statute incorporated the Commission's statements which, although narrowing eligibility, did not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term "based on," but instead an additional limit on eligibility, therefore the meaning of the term "based on"—and the holding of Freeman—were not relevant.

Court Finds Proof of Witness Tampering Insufficient

Fri, 07 Dec 2012 09:00:00 -0500

In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court of Appeals for the Third Circuit considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.

On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate.

The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

Tue, 04 Dec 2012 11:00:00 -0500

In United States v. Begin, 2012 WL 4784362 (3d Cir. Oct. 9, 2012), Defendant Begin appealed from his 240-month sentence for using the Internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged". Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law. Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request. In its final review of the sentencing factors the court simply stated: "This sentence also takes into account the need to avoid unwarranted disparities in sentencing among defendants with similar records who have been found guilty of similar conduct."

The Third Circuit first determined that Begin's claim that his sentence for attempting to induce statutory rape, (18 U.S.C. § 2422(b)), should not exceed the maximum penalty for actually committing (federal) statutory rape, (18 U.S.C. § 2422(b), was an argument with colorable legal merit, citing United States v. Ausburn, 502 F.3d 313 (3d Cir. 2009). It then found that the district court failed to make a sufficient record to demonstrate its consideration of that argument, or even specifically rule on the Defendant’s request for a variance. Accordingly, the sentence was procedurally unreasonable.

Unprovoked Flight, Without More, Cannot Elevate Reasonable Suspicion to Detain and Investigate into the Probable Cause Required for an Arrest

Tue, 16 Oct 2012 09:00:00 -0500

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), Defendant appealed the United States District Court for the District of New Jersey's denial of a motion to suppress weapons that police discovered in his home after a warrantless arrest. He argued that he was detained without reasonable suspicion or probable cause to arrest and that the weapons that were subsequently recovered from his apartment should therefore have been suppressed.

While performing surveillance, two undercover police officers observed Navedo’s co-defendant approach him carrying a bookbag. Co-defendant pulled what appeared to be a gun out of the bag. Defendant never touched or possessed the gun, he just leaned forward to see what was inside the bag. At that point the officers approached and identified themselves. Co-defendant threw the gun back into his bag and ran. Defendant also ran into his home and just as he had opened his apartment door, an officer tackled him and arrested him. Multiple weapons were found inside defendant's apartment.

The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the Defendant had looked at the gun a third party showed him, engaged in a brief conversation, and nothing more. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspicion to detain and investigate.

The Court held that unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. In this case, although the reasonable suspicions of the police had justified a brief investigative detention of co-defendant, they did not have a reasonable suspicion to detain defendant who merely looked at the gun that co-defendant was showing him and engaged in brief conversation. This was not a high crime area, and police had no reason to suspect that defendant was demonstrating anything other than curiosity at the sight of a gun. The police, therefore, had no reason to suspect that defendant was involved in criminal activity, and even if they had a suspicion, they were only entitled to detain and investigate, not arrest.

The case was remanded with instructions that the order denying defendant's motion to suppress be vacated.

Second Circuit Holds that Certain Acts Involving Children are not Relevant Conduct for Sentencing Purposes

Thu, 11 Oct 2012 09:00:00 -0500

In U.S. v. Wernick, No. 10-2974 (2d Cir. August 8, 2012), Defendant was convicted by jury in the United States District Court for the Eastern District of New York on five counts of receiving and distributing child pornography, reproducing child pornography for distribution by computer, possessing materials containing images of child pornography, and persuading, inducing, and enticing minors to engage in sexual activity.

From chat records on Wernick’s computer, the Government introduced evidence showing that on several occasions, Wernick chatted with minor male teenagers online and proposed meeting for sex. At trial, the government was able to prove two episodes, one in which Wernick met a male 14-year-old online and eventually persuaded him to meet in person several times to engage in oral and anal sex, and another involving a male 16-year-old. Additionally, at sentencing, prosecutors proved instances of Wernick's sexual conduct with two male 15-year-olds and attempted sexual conduct with respect to another male teenager.

Defendant argued the district court erred by considering some of that sexual conduct directed at young children, not charged in the indictment or proven at trial, as relevant conduct that increased his U.S. Sentencing Guidelines Manual offense level. The Appellate Court agreed, stating, “We agree with Wernick that the offenses against the young children are not relevant conduct because these offenses did not "occur[] during the commission of" or "in preparation for" the crimes against the teenagers in the sense contemplated by the Guidelines.” Wernick at 14.

The Appellate court did not suggest the sexual exploitation of young children was not relevant in the ordinary sense to the district court's consideration of an appropriate sentence for offenses involving illegal sexual enticement of older minors and redistribution of child pornography. It noted that the conduct in question could and undoubtedly would, be properly considered on remand in assessing the factors relevant to sentencing under 18 U.S.C.S. § 3553(a).

The sentence was vacated and the case was remanded for resentencing.

Third Circuit Holds that Trial Judge Should Have Reviewed Video Evidence in Child Pornography Case Before Allowing Submission of the Tapes to the Jury

Mon, 08 Oct 2012 15:00:00 -0500

In U.S. v. David L. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012), Defendant Cunningham was charged with receiving, possessing, and distributing child pornography. After a jury trial, Cunningham was sentenced to 210 months in prison and 20 years of supervised release for the receipt and distribution of child pornography. Before the jury trial, Cunningham attempted to prevent certain, graphic video evidence from being shown to the jury on multiple occasions, but the district court denied each of his requests. At trial, the District Court allowed the government, over Cunningham's objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.

Cunningham argued that those "images not only reveal children engaging in sexually explicit conduct; they are obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage." Cunningham at 9. Cunningham objected to the government's video excerpts and proposed that, if the Court was going to allow the government to introduce those exhibits, they should be limited in four ways: (1) only still images of any video should be shown; (2) no images, whether still or part of a video, should display bondage or actual violence, including the penetration of prepubescent children by adults; (3) no audio should accompany any of the video; and (4) the faces of any minors should be obscured from all images. The District Court ruled against him.

Cunningham appealed his sentence, arguing that the District Court permitted the government to show graphic video evidence without first viewing the videos, and failed to exclude or limit the video clips. The Third Circuit agreed with Cunningham and found that the District Court abused its discretion when it did not view the graphic videos before admitting them as evidence and when it failed to exclude or limit video clips. The Court noted that, “The probative value of each clip was reduced by the existence of the clips before it. Once one video excerpt from each of the two videos was shown, the fact being proven — i.e., that the person distributing, receiving, and possessing that pornography would know that it contained images of real minors engaging in sexually explicit activity — may well have been established. As a result, after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge of distribution, receipt, and possession had already been established in some degree by the prior video excerpts.” Id. at 45-46.

The Third Circuit vacated the District Court’s ruling and remanded the case for a new trial.