Justia Criminal Law Opinion Summaries

In 2004 defendant was convicted of crimes related to possession with intent to distribute narcotics and possession of two handguns. At the initial sentencing, the district court granted a new trial with respect to four counts. The Third Circuit reversed and limited remand to re-sentencing only. The district court sua sponte found certain counts of conviction multiplicitous and vacated another count on the basis that its own jury charge was plainly erroneous. The Third Circuit vacated, again reinstating all counts of conviction, remanded for resentencing, and directed reassignment of the case to a different district court judge.

Defendant, a former federal prosecutor and prominent defense attorney, was indicted on charges including violations of the Racketeering Influenced and Corrupt Organizations Act. Reasoning that the RICO charges were inappropriate in light of the disparate nature of the substantive crimes that served as racketeering predicates, the district court dismissed. The Third Circuit reversed. On remand, the government filed a 33-count superseding indictment charging RICO violations, witness tampering (including facilitation of murder), participation in a cocaine-trafficking conspiracy, and tax evasion. The district court ordered the murder counts severed and tried them first, prohibiting the government from introducing evidence of two other witness-murder plots. The jury was unable to reach a verdict. After the jury was dismissed, the government, anticipating retrial, asked whether the court would adhere to its earlier evidentiary rulings. “Absolutely,” was the response, though the court noted that the government would be permitted to try to convince it otherwise. The Third Circuit vacated the ruling excluding evidence of the other plots and remanded for reassignment; the court’s statements before and after the earlier appeal indicate that its "impartiality might reasonably be questioned."

Andrews was designated as contractor for improvements to the sewage system, in a no-bid process involving kickbacks and bribery, having made numerous false statements in the bond application package. After the contract was terminated, he submitted a claim of $748,304, based on false statements and duplicate charges. Evidence indicated that Andrews was not capable of the project work and that the entire scheme was fraudulent. He was convicted of one count of conspiracy, 18 U.S.C. 371, four counts of wire fraud, 18 U.S.C. 1343, 1346, and 2, one count of program fraud, 18 U.S.C. 666(a)(1)(B) and 2, one count of making a false claim upon the Government of the Virgin Islands, 14 V.I.C. 843(4), and one count of inducing a conflict of interest, 3 V.I.C. 1102, 1103, and 1107. The Third Circuit affirmed the conviction, but remanded for resentencing. Errors in the indictment and jury instructions concerning honest services fraud did not affect substantial rights. Although the 151-month term of imprisonment was within the statutory maximum for Counts Two through Five, it exceeded the statutory maximum for Counts One and Six; it was not possible to determine whether the sentence was legal as to each count

Following a controlled-buy involving a confidential informant, Haziz was charged with distribution of five grams or more of cocaine base, 21 U.S.C. 841(a)(1) and distribution of cocaine base within 1,000 feet of a public housing facility, 21 U.S.C. 860(a). He waived conflict for representation by a firm representing a co-defendant. When he withdrew consent, a new attorney was appointed. At trial, the judge denied a motion for a mistrial that was based on witness statements that Haziz was in jail, but used a cautionary instruction. After the jury was dismissed, an alternate juror told a deputy that jurors had stated that they went along with the verdict although they did not necessarily agree with it. The court informed counsel, but denied a motion to interview the alternate juror. Haziz was sentenced to 120 months. The Third Circuit affirmed the convictions, rejecting arguments based on disqualification of first defense counsel; denial of a mistrial; denial of the request to interview the alternate juror; refusal to adopt a “mitigating role” adjustment in sentencing; and the total weight of the drugs involved. The court vacated the sentence; the Fair Sentencing Act of 2010 applies and Haziz is not subject to a mandatory minimum sentence.

ABC is a dissolved corporation. Doe 1 was the company’s President and sole shareholder. Doe 2 is his son. LaCheen represents ABC and Doe 1; Blank represents Doe 2. The law firms have a joint-defense agreement covering the three. Investigating tax implications of ABC’s acquisition and sale of closely held companies, the government issued a grand jury subpoena to ABC’s former vice president as custodian of records. The documents are in custody of Blank. ABC refused to accept service of the subpoena issued to its former employee. The government issued subpoenas to LaCheen and Blank. The firms withheld documents listed on a privilege log. The government sought to compel ABC, Blank, and LaCheen to produce documents identified on the privilege logs, citing cited the crime-fraud doctrine, which provides that evidentiary privileges may not be used to shield communications made for purposes of getting advice for commission of a fraud or crime. The district court entered the order. The Third Circuit dismissed for lack of appellate jurisdiction. To obtain immediate appellate review, a privilege holder must disobey the order, be held in contempt, then appeal the contempt order. That route is available to ABC, which can obtain custody of the documents from its agent.

Rolan was convicted in 1984 of murder and possession of an instrument of crime for a 1983 shooting death involving a drug sale. He obtained habeas corpus relief based on ineffective assistance of counsel. After a retrial, the jury convicted Rolan of murder again. After exhausting appeals, he again sought habeas corpus. The district court denied the petition. The Third Circuit affirmed, rejecting a claim of prosecutorial misconduct that was based on closing argument statements about the reliability of an alibi witness. The court properly allowed reading of a transcript of testimony by a witness, who died before retrial.

In 1993 Simon and others burglarized a house; the occupant arrived during the burglary and was shot dead. Simon was tried for felony murder, first degree robbery, and third degree burglary. Simon repeatedly moved to dismiss his appointed defender, Ayala. Ayala moved to withdraw claiming that Simon was hostile and was planning to claim ineffective assistance of counsel. The court declined. Ayala did not give an opening statement, call witnesses, or object to closure of the courtroom during closing arguments and jury instructions. Simon was convicted and sentenced to life imprisonment without parole. His direct appeals were unsuccessful. Another participant, who testified against Simon, had his sentence reduced for his assistance. Virgin Islands court rejected a petition for habeas corpus and, on appeal, Simon's attorney filed an Anders motion to withdraw. The motion was granted and the petition was ultimately denied. The Third Circuit vacated, first rejecting a challenge to its jurisdiction. The Appellate Division did not err in applying Anders procedures to assess motions filed by court-appointed counsel to withdraw on post-conviction appeal, but erred in finding the Anders brief sufficient on its face. There were nonfrivolous issues that should be reviewed on the merits.

Defendant pleaded guilty to two counts of bank robbery, 18 U.S.C. 2113(a). Based on prior Pennsylvania convictions for simple assault and third-degree murder, the presentence report recommended that he be sentenced as a career offender under USSG 4B1.1. The district court agreed and imposed a sentence of 96 months. The Third Circuit affirmed. Defendant’s attempt to drag his wife up the stairs with his hands around her neck qualified as a crime of violence, as did his kicking a man to death after an attempt to buy drugs.

Defendants owned an engineering and surveying company. Between 2002 and 2008, it failed to pay the IRS more than $500,000 in taxes withheld from employee paychecks. They were convicted of conspiracy to defraud the United States, 18 U.S.C. 371, and 21 counts of failure to account and pay over employment taxes, 26 U.S.C. 7202. The Third Circuit affirmed the convictions, rejecting claims of evidentiary errors, but remanded for resentencing. The district court erred in imposing a two-level increase to the offense levels for abuse of a position of trust, pursuant to U.S.S.G. 3B1.3.

An ATF agent noticed that his barber carried guns and that the shop was used for illegal activities. Learning that his barber had felony convictions, the agent purchased weapons from the barber, obtained warrants, searched the shop and arrested the barber, which led to indictment of Turner. Turner was convicted of conspiring to make false statements to a firearms dealer, 18 U.S.C. 371, 924(a)(1)(A), knowingly aiding and abetting in making false statements to a firearms dealer, 18 U.S.C. 924(a)(1)(A), (2), and knowingly possessing a firearm after being convicted of a felony, 18 U.S.C. 922(g)(1), 924(e), and sentenced to 190 months. On appeal, Turner‘s newly-appointed counsel filed a "quasi- Anders brief," raising a combination of colorable and frivolous arguments. The Third Circuit affirmed the conviction, clarifying that, except in cases governed by Anders, parties represented by counsel may not file pro se briefs. When such briefs are filed the clerk will refer them to putative pro se litigant's counsel. Counsel may include a client's pro se arguments in their own briefs or, in an appropriate and unusual case, seek leave to file a separate, supplemental brief drafted by counsel that advances arguments raised by the client that counsel believes are meritorious.