Articles Posted in U.S. Court of Appeals for the Third Circuit

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Francis was identified by an eyewitness as the triggerman in a 2011 fatal shooting on St. Thomas. Francis admitted that he was present during the shooting and claimed Fahie wielded the weapon. Both Fahie and Francis were charged with the murder and related crimes. Francis worked out a plea deal: in exchange for reduced charges, he agreed to testify against Fahie, which he did, swearing that Fahie was the sole shooter. The jury found Fahie guilty. After an unsuccessful appeal to the Virgin Islands Supreme Court, Fahie successfully petitioned the Third Circuit certiorari. That court concluded that it had jurisdiction under the 2012 version of the Organic Act, 48 U.S.C. 1613; upheld the decision to give an “aiding and abetting” instruction, concluding that the theory was presented at trial; and declined to address whether the V.I. Supreme Court used the correct standard to assess whether another supposed error in the jury instructions was harmless. View "Fahie v. People of the Virgin Islands" on Justia Law

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Counsel was ineffective in failing to object to jury instruction concerning eyewitness testimony, using the words “may not” rather than “need not.” Bey was convicted of murder, attempted murder, and possessing an instrument of crime, based on a nonfatal shooting and a fatal shooting that took place in 2001. Philadelphia Police Officer Taylor was in the parking lot during the shooting: his identification of Bey as the shooter was consistent and unequivocal. However, in statements to Bey’s then-defense counsel, the surviving victim said that his shooter was not Bey. Defense counsel requested a “Kloiber” jury instruction. In instructing the jury, the court changed a word, telling jurors that they “may not” receive an identification with caution rather than instructing them that they “need not” receive the identification with caution. Defense counsel did not object. In his unsuccessful petition for state post-conviction relief, Bey raised an ineffective assistance of counsel claim based on the Kloiber instruction, but failed to highlight the “may not” language. The federal district court held that, to the extent that Bey’s ineffective assistance claims were not procedurally defaulted, Bey could not show prejudice because “there was overwhelming evidence of guilt.” The Third Circuit reversed, based on the Kloiber claim, finding cause to excuse Bey’s procedural default. View "Bey v. Superintendent Greene SCI" on Justia Law

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Conviction for failing to report murder does not preclude eligibility for withholding of removal. Flores, a Guatemalan native, entered the U.S. illegally. In 2007, she began and ended a relationship Sibrian. Flores returned to South Carolina with a new boyfriend, Perez, in 2008; Sibrian killed Perez. Flores claims she did not report the murder because Sibrian threatened to kill her and her three-year-old daughter. Flores eventually pleaded guilty to accessory after the fact for failing to report the murder. There was no evidence that Flores covered up the homicide, lied to law enforcement, or assisted Sibrian. After serving her prison term, Flores was removed. She re-entered illegally, was arrested for prostitution, and was detained. She stated that she feared returning to Guatemala because: her father wanted to kill her; she had been raped by local gang member following her previous removal; and she feared persecution as a lesbian. The asylum officer determined that Flores had a reasonable fear of persecution. An IJ found that Flores’s accessory conviction rendered her ineligible for withholding of removal and that Flores failed to adequately establish that she would be subjected to torture in Guatemala, as required by the Convention Against Torture. The BIA affirmed. The Third Circuit remanded. Flores’s accessory-after-the-fact conviction is not an offense “relating to obstruction of justice,” nor is it an “aggravated felony” or a “particularly serious crime” under the statute; Flores is eligible for withholding of removal. View "Flores v. Attorney General United States" on Justia Law

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Pretrial detainee’s due process rights were not violated by placement in administrative segregation and restriction of phone privileges pending investigation of misconduct. While Steele was a pretrial detainee at New Jersey’s Middlesex County Adult Correction Center, officials received credible information that Steele was threatening other detainees in order to coerce them into using Speedy Bail Bond Service and was receiving compensation from Speedy. After interviewing Steele and advising him of the allegations, officials placed him in administrative segregation while they investigated. Steele’s telephone privileges were restricted to legal calls only. Steele filed suit under 42 U.S.C. 1983, claiming violations of his due process rights when the defendants transferred him to administrative segregation and restricted his phone privileges, interfering with his ability to find a co-signer for his own bail. The Third Circuit affirmed summary judgment for all defendants. Defendants’ limitation of Steele’s phone privileges did not “shock the conscience.” Steele has not met his heavy burden of showing that defendants exaggerated their response to the genuine security considerations that actuated his move. Steele’s transfer was for institutional security reasons rather than for discipline or punishment and he was accorded the required level of process. View "Steele v. Cicchi" on Justia Law

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The Third Circuit affirmed denial of a sentencing reduction while rejecting the government’s “novel” challenge to its jurisdiction. The court concluded that the denial was a final order under 28 U.S.C. 1291 and that 18 U.S.C. 3742(a)(1)does not bar review for reasonableness. In 2012, Rodriguez pled guilty to conspiracy to distribute cocaine, 21 U.S.C. 846, and conspiracy to possess firearms in furtherance of drug trafficking, 18 U.S.C. 924(o). The drug quantity was more than 15 and less than 50 kilograms of cocaine. Rodriguez was also responsible for multiple drug-related robberies. His sentencing range was 120-150 months; he was sentenced to 123 months’ imprisonment. In 2016, Rodriguez sought a sentencing reduction under 18 U.S.C. 3582(c)(2), based on Amendment 782 of the Sentencing Guidelines, which retroactively reduced by two the offense levels for drug quantities that trigger a mandatory minimum sentence. The district court found Rodriguez eligible for an Amendment 782 sentencing reduction, but denied relief in the exercise of its discretion, stating that Rodriguez had engaged in “an unyielding and escalating pattern of drug-related and violent behavior which has been undeterred by prior and substantial terms of imprisonment.” The courts rejected an argument that the sentence was substantively unreasonable, based on the 18 U.S.C. 3553(a) factors. View "United States v. Rodriguez" on Justia Law

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Repak was the Executive Director of the Johnstown Redevelopment Authority (JRA), which receives federal and state funding. JRA’s Board of Directors awards contracts to remediate industrial proprieties and issues grants, relying on the Executive Director for recommendations. Repak solicited from JRA contractors, items such as concert tickets, sporting event tickets, and golf outings. One contractor testified, Repak “would sometimes . . . provide some innuendos like, ‘I’m reviewing some invoice here of yours.’” In 2009, JRA contractor EADS replaced the roof on Repak’s home at no cost to Repak and another JRA contractor performed excavating services at a gym owned by Repak’s son. Repak was convicted under the Hobbs Act, 18 U.S.C. 1951(a), for knowing obstruction, delay, or effect on commerce “by extortion” through the solicitation and receipt of goods and services, “which were not due him or his office, and to which he was not entitled, . . . in exchange for [his] official action and influence … to facilitate the award of [JRA] contracting work,” and of violations of the federal program bribery statute, 18 U.S.C. 666(a)(1)(B). The Third Circuit affirmed. While the district court’s Rule 404(b) analysis, was lacking, even under a proper Rule 404(b) analysis, the government’s other-acts evidence was admissible. View "United States v. Repak" on Justia Law

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While investigating Doe concerning online child pornography, agents executed a warrant and seized iPhones and a computer with attached hard drives, all protected with encryption software. Forensic analysts discovered the password for the computer and found an image of a pubescent girl in a sexually provocative position, logs showing that it had been used to visit sites with titles common in child exploitation, and that Doe had downloaded thousands of known child pornography files, which were stored on the encrypted external drives and could not be accessed. Doe's sister related that Doe had shown her hundreds of child pornography images on those drives. A magistrate, acting under the All Writs Act, ordered Doe to produce his devices and drives in an unencrypted state. Doe did not appeal the order but unsuccessfully moved to quash, arguing that his decrypting the devices would violate his Fifth Amendment privilege. The magistrate held that, because the government possessed Doe’s devices and knew the contents included child pornography, the decryption would not be testimonial. Doe did not appeal. Doe produced the unencrypted iPhone, which contained adult pornography, a video of Doe’s four-year-old niece wearing only underwear, and approximately 20 photographs focused on the genitals of Doe’s six-year-old niece. Doe stated that he could not remember the hard drive passwords and entered incorrect passwords during the examination. The court held Doe in civil contempt and ordered his incarceration. The Third Circuit affirmed, noting that Doe bore the burden of proving that he could not produce the passwords and had waived his Fifth Amendment arguments. View "United States v. Apple Macpro Computer" on Justia Law

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Chavez-Alvarez, a citizen of Mexico, became a lawful permanent resident in 1989, then served in the U.S. Army. In 2000, Chavez-Alvarez penetrated the vagina of an intoxicated platoon member with his fingers and performed oral sex without consent. He initially denied the allegations, but later admitted the assault and was convicted under the Code of Military Justice: 10 U.S.C. 907, 925, and 934 for making false official statements; sodomy; and adultery and indecent assault. He was discharged and confined for 18 months. Chavez-Alvarez was charged as removable under 8 U.S.C. 1227, having been convicted of an aggravated felony with a term of imprisonment of at least one year and of two or more crimes involving moral turpitude not arising out of a single scheme. An IJ determined he was ineligible for a waiver of inadmissibility. Following a remand, the BIA concluded that Chavez-Alvarez was removable under the moral-turpitude provision, rejecting his argument that he was only convicted of sodomy, a constitutionally protected activity under Supreme Court precedent. The BIA disagreed, reasoning that Chavez-Alvarez’s crime was subject to a sentence enhancement, having been committed forcibly, which was the “functional equivalent” of a conviction for forcible sodomy, a crime involving moral turpitude, and that his two false-statements convictions were separate crimes of moral turpitude. The Third Circuit reversed, rejecting the BIA’s reasoning that “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense.” View "Chavez-Alvarez v. Attorney General , United States" on Justia Law

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In 2005, off-duty police officer Flomo was shot to death while sitting in his car in North Philadelphia. The shooting occurred after Flomo had stopped his car and solicited Bowens, a prostitute and Slaughter’s and Johnson’s long-time drug customer. Johnson and Slaughter were charged with murder based on witness identifications and forensic testimony. A jury acquitted both defendants of first-degree murder, but convicted Slaughter on third-degree murder and criminal conspiracy. It failed to reach a verdict on remaining charges as to Johnson. At Johnson’s retrial, the prosecution introduced a statement that Slaughter had given police that implicated Johnson, in violation of Johnson’s Sixth Amendment right to confront witnesses. A jury found Johnson guilty of third-degree murder and criminal conspiracy; he was sentenced to consecutive prison terms of 20-40 years and 10-20 years. After unsuccessful state post-conviction proceedings, Johnson unsuccessfully sought federal habeas relief, based on the introduction of that statement and the prosecutor’s calling Slaughter to testify knowing that Slaughter would invoke his Fifth Amendment privilege. The Third Circuit affirmed. denial of Johnson’s habeas petition, reasoning that Slaughter’s statement was cumulative so that Johnson could not show prejudice and that the prosecutor did not necessarily know that Slaughter would invoke the Fifth Amendment. View "Johnson v. Lamas" on Justia Law

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In 1998, McKernan was convicted of first-degree murder in the death of his former roommate, Gibson. McKernan admitted to hitting Gibson with a bat but claimed that it was self-defense and that Gibson’s injuries arose from Gibson hitting his head on the curb. During McKernan’s bench trial, after the Commonwealth had rested but before the defense had started its case-in-chief, the judge called the victim’s mother, his brother, the prosecutor, and defense counsel, into her robing room. McKernan was not present. The meeting was transcribed. The judge discussed online criticism of her decisions, including statements on the Gibsons’ website, and stated that she “want[ed] to make sure that you folks are happy with me.” Defense counsel did not object. The judge and Gibson’s brother agreed that the judge could “redline” the website. After conferring with McKernan, defense counsel told the judge and prosecutor that his client had “concerns” because “he thinks that you may be constrained to lean over backwards,” but advised McKernan to continue before the judge. After exhausting state remedies, McKernan filed an unsuccessful federal habeas petition. The Third Circuit reversed the denial of relief, finding that the state courts unreasonably applied Supreme Court precedent as to whether McKernan’s trial counsel was ineffective for failing to seek and for advising McKernan not to seek the judge’s recusal. View "McKernan v. Superintendent Smithfield SCI" on Justia Law