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September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Third Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Ona Lu

United States v. Shannon, No. 13-2389 (3d Cir. Sept. 8, 2014), 2014 WL 4401054

Defendant was convicted of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute five or more grams of cocaine, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A)(ii).  During Defendant’s cross-examination, the government asked why Defendant never came to the authorities about his exculpatory explanation of the facts of his case.  Although defense counsel objected to the question on Fifth Amendment grounds, the objection was overruled and Defendant was pressed to explain his silence.  Defendant appealed, arguing that the government’s questions about his post-arrest silence violated his Fifth Amendment right.

Held: Because the government’s cross-examination of Defendant was a violation of the Fifth Amendment and was not harmless, Defendant’s conviction must be vacated and the case remanded.

The Supreme Court has held that impeachment of a defendant’s credibility by using his silence post-arrest and post-Miranda warning is a violation of the Fifth Amendment. The government may impeach a defendant on his post-arrest silence if he “opened the door” with testimony that is blatantly inconsistent with his post-arrest silence, such as claiming that he told the police the same exculpatory version upon arrest.  If the government cannot prove that its error was harmless beyond a reasonable doubt, the conviction must be vacated.  Here, there is no evidence that Defendant waived his Fifth Amendment right.  Although Defendant’s testimony was vague and seemed to intimate post-arrest cooperation, it does not fulfill the high threshold of “blatantly inconsistent” with his post-arrest silence.  Also, the government could not show that the error did not contribute to Defendant’s conviction, since all the other evidence presented by the government were largely circumstantial.  Therefore, the government’s questions impermissibly inquired Defendant’s post-arrest silence, and the error was not harmless beyond a reasonable doubt.

United States v. Mallory, No. 13-2025 (3d Cir. Sept. 3, 2014), 765 F.3d 373

Defendant was indicted with possession of a firearm by a convicted felon.  Upon receiving a dispatch about an armed suspect, officers approached Defendant because he matched the description of the suspect.  While speaking to Defendant, one of the officers spotted a gun stuck to Defendant’s waistband.  After the officer shouted “Gun!” to his partner, Defendant fled into his stepmother’s home and shut the door behind him.  When the officers chased after Defendant into the home, a few of Defendant’s stepsiblings who lived in the home protested the officers’ entry.  After breaking down the door, the officers conducted a sweep of the home and found Defendant inside a locked bathroom.  Defendant’s family complied with officer orders during the search of the home.   After breaking the lock on the bathroom door, the officers arrested Defendant.  While leading Defendant out from the back of the home, one of the officers searched the home for the gun and found it behind the front door.  Defendant moved to suppress evidence of the gun, which the district court granted. The district court reasoned that Defendant had a legitimate expectation of privacy in the home because he visited it weekly and was staying there the night of the arrest, and that the government did not have an exigent circumstance to warrant the search of the gun.  The government appealed.

Held: The district court’s grant of the motion to suppress is affirmed because the government could not prove that they had an exigent circumstance to justify the search of the gun.

A warrantless search of a home is reasonable with consent if there is both probable cause and exigent circumstances justifying the search.  An exigent circumstance exists when the officers are in hot pursuit of a fleeing suspect, reasonably believe someone is in imminent danger, or reasonably believe there would be imminent destruction of evidence.  The officers were permitted to conduct a warrantless sweep of the home in search of Defendant when chasing after him.  However, once the police had secured Defendant from the bathroom, Defendant did not resist arrest and Defendant’s family was being cooperative.  As such, there was no evidence to show that the officers were in any imminent danger by the time they searched for the gun. Additionally, there was no evidence that there was an imminent risk of a family member moving the gun to justify an imminent destruction of the evidence. As such, exigent circumstances did not exist at the time the officers searched for the gun.  Since the officers conducted a warrantless search for the gun without evidence indicating exigent circumstances, the district court’s grant of the motion to suppress was proper.

United States v. Husmann, No. 13-2688 (3d Cir. Sept. 3, 2014), 765 F.3d 169

While Defendant was on supervisory release for a child pornography conviction, he was caught accessing and viewing child pornography.  During a search, the FBI found that Defendant had placed various child pornography in a shared computer folder on a peer-to-peer file-sharing network.  Defendant was then charged with distribution under § 2252(a)(2), and possession of child pornography. However, the FBI could not show that other users ever downloaded the child pornography files on the shared folder.  When Defendant moved to dismiss the distribution charges under Rule 29 of the Federal Rules of Criminal Procedure, the district court denied.  Defendant was then convicted and applied a five-level sentencing enhancement based on Defendant’s prior conviction.  Defendant appeals, arguing that the act of placing child pornography onto a shared folder itself does not constitute distribution under § 2252(a)(2), and the district court erred in applying a procedurally and substantively unreasonable sentencing enhancement.

Held: The district court committed a clear error in denying Defendant’s Rule 29 motion on the distribution counts, and the case is remanded for sentencing.

Although of the statute does not define “distribute,” the overall meaning of the word, the statutory scheme, and the appellate case law indicates that “distribution” under § 2252(a)(2) requires evidence that the child pornography in the shared drive was transferred to or downloaded by another person. Here, there was no evidence that anyone accessed or downloaded the materials in Defendant’s shared folder. Additionally, the error affected Defendant’s substantial rights by increasing his sentencing.  As a result, the district court clearly erred in denying Defendant’s motion.

United States v. Donahue, No. 13-4767 (3d Cir. Aug. 22, 2014), 764 F.3d 293

Defendant was convicted of bank fraud, money laundering, accessing an unauthorized device, and making false statements, and was directed to surrender at a specific time at a designated place.  When Defendant did not surrender as ordered, the district court issued a warrant for his arrest.  Defendant was caught in New Mexico, after exiting his hotel and entering his son’s car.  The car was taken into possession. The government, without obtaining a search warrant, searched and photographed the car several times over the next five days.  A firearm magazine clip was found in the driver’s seat, and a pistol was found in the seized bag from the trunk.  Defendant was then indicted for failure to surrender and for firearm offenses.  Defendant moved to suppress the evidence found in the car and hotel room, arguing that the warrantless searches violated the Fourth Amendment.  The district court granted the motion, concluding that there was no probable cause to conduct a warrantless search of the car.  The district court reasoned that the items in plain view of the car were not contraband, the FBI agent conducting the search may not have believed there was probable cause, and that there was no fair probability that a search of the car would reveal evidence of a crime since Defendant’s crime was completed by failing to surrender.  The government appealed, arguing that it had probable cause to search since it was reasonable to believe that Defendant would possess items that would prove that he knowingly failed to surrender.

Held: The district court erred in granting Defendant’s motion to suppress evidence found from the car, and the case is reversed and remanded.

When there is probable cause to believe that an automobile contains evidence of a crime, the government may conduct a warrantless search.  Probable cause is an objective standard based on the totality of the circumstances.  The subjective belief of the FBI agent conducting the search is immaterial to the question of probable cause.  Additionally, the question of whether a crime has been completed is not relevant to the court’s inquiry of probable cause.  Here, the government agents knew that Defendant failed to surrender.  Also, the government agents had extensive experiences with fugitives, who are likely to possess incriminating materials such as false identification.  As such, the Government had probable cause to search the car because they had reasonable belief that items in the car would show that Defendant knowingly failed to surrender.

United States v. Travillion, No. 12-4184 (3d Cir. Jul. 7, 2014), 759 F.3d 281

Defendant was convicted of three counts relating to a large drug trade in violation of 21 U.S.C. § 846 and §841(a)(1), (b)(1)(A)(iii), which included two conspiracy counts.  During Defendant’s trial, the government called a witness to testify about a call between the witness and Defendant pertaining to Defendant’s acquisition of cocaine.  Defendant argued that he was looking to acquire heroine rather than cocaine, and also raised the defense that he was not a part of two conspiracies he was charged with.  The Third Circuit affirmed the conviction.  Defendant then moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel, which the district court denied.  Defendant appealed, claiming that his counsel was ineffective for 1) failing to properly cross-examine a witness with contradictory statements made by the witness in another case, and 2) failing to file a pre-trial motion challenging Defendant’s two conspiracy charges on double jeopardy grounds.

Held: Defendant failed to prove that he was prejudiced due to his counsel’s ineffectiveness under the Strickland test, and the district court’s denial of Defendant’s § 2255 motion is affirmed.

Under the Strickland test, Defendant must show that his counsel’s performance was so deficient that it cannot be constituted as a counsel guaranteed under the Sixth Amendment, and that such action prejudiced Defendant under the totality of the circumstances by depriving Defendant of a fair trial.

1) The defense counsel’s cross-examination of the government’s witness did not prejudice the outcome of Defendant’s trial.  Looking at the totality of the circumstances, the defense counsel attacked the witness’s credibility in his closing statement, and was capable of employing his strategy throughout his cross-examination of the witness.  Additionally, the jury was instructed to scrutinize the witness’s testimony.  As a result, Defendant has not satisfied the prejudice prong for his first claim under the Strickland test.

2) Defense counsel’s failure to file a pre-trial motion for double jeopardy did not prejudice the outcome of Defendant’s trial.  Under Liotard’s “totality of the circumstance” test, Defendant is entitled to a pretrial evidentiary hearing on a double jeopardy claim if he can allege that the two conspiracies contain (a) the same locality of the crime, (b) a temporal overlap, (c) an overlap of personnel for the same objective, and (d) Defendant played similar roles and were charged with similar overt acts.  Both counts of conspiracy were committed in the same area, and both conspiracy counts had a temporal overlap of the same timeframe.  Some of the participants of the conspiracies also overlapped, but there was not enough evidence to show that the participants had the same plan or objective to constitute a single conspiracy.  Lastly, even with a broader standard of the overt act prong to include all relevant activities, Congress had intended to create separate punishments under different statutory provisions stemming from a single transaction. As a result, Defendant failed to prove under the totality of the circumstances sufficient evidence of a single conspiracy. Since Defendant is not entitled to an evidentiary hearing on his double jeopardy claim, he was not prejudiced by his counsel’s actions under the Strickland test.

Ona Lu is a student at Brooklyn Law School and is expected to graduate in May 2015. She is interested in both intellectual property and criminal law.

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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.