Justia Criminal Law Opinion Summaries

In 2005-2013, Nocito, president and CEO of AHS, characterized his personal expenses as deductible AHS business expenses and “shuffled” AHS’s untaxed profits between shell companies he owned that “performed no significant business purpose.” In 2013, Sundo, AHS’s secretary and CFO, provided documents to government investigators under a cooperation agreement, including Exhibit J, later determined by the court to be a privileged document in which Sundo conveyed legal advice to Nocito.After his indictment for tax fraud (18 U.S.C. 371), Nocito moved for pre-trial discovery of all the documents provided by Sundo to support a possible motion to suppress based on government misconduct. The court denied the motion, concluding that Exhibit J did not offer a “colorable basis” for his governmental misconduct claim. A subsequent motion to intervene, brought by the shell companies, attached a Federal Rule 41(g) motion for the return of property, in an attempt to prevent the government from using Exhibit J in future proceedings.The court permitted the companies to intervene but denied their Rule 41(g) motion. It found the Intervenors—even assuming they could establish Exhibit J’s privilege was “a property interest” of which they were deprived—were attempting to use Rule 41(g) improperly to suppress Exhibit J from the evidence against Nocito. The Third Circuit dismissed an appeal for lack of jurisdiction. The Rule 41(g) motion was part of an ongoing criminal process; its denial did not constitute a final order. View "United States v. Nocito" on Justia Law

Henderson pleaded guilty to possession with intent to distribute 40 grams or more of a mixture and substance containing fentanyl, 18 U.S.C. 841(a)(1), (b)(1)(B)(iv), without a plea agreement. The district court applied the career offender enhancement under U.S.S.G. 4B1.1 and the Armed Career Criminal Act (ACCA), based on findings that Henderson’s 2015 Pennsylvania conviction for possession with intent to deliver heroin qualified as a “controlled substance offense,” and Henderson’s 2005 Pennsylvania conviction for conspiracy to commit robbery qualified as a “crime of violence.” The enhancement increased the applicable Guideline range from 70-87 months’ imprisonment to 188-235 months. Henderson did not challenge the PSR Guideline calculations and was sentenced to 120 months’ imprisonment, with the court noting Henderson’s “mental health issues.” The Third Circuit stayed Henderson's appeal. In the meantime, the Supreme Court (Borden, 2021) found that crimes that can be committed with recklessness do not qualify as “violent felonies” under ACCA.The Third Circuit vacated Henderson's sentence, noting that its precedents had previously dictated different sentencing outcomes for defendants convicted of conspiracy and other inchoate offenses but that Borden resolved the conflict. Under Pennsylvania law, conspiracy to commit robbery does not constitute a “crime of violence” for purposes of the career offender enhancement. View "United States v. Henderson" on Justia Law

Perez-Colon was convicted of two counts of production of child pornography, 18 U.S.C. 2251(a), one count of distribution, section 2252(a)(2), five counts of attempted distribution, 2252(a)(2), and one count of possession, 2252(a)(4)(B). Eight counts involved “M1,” a female toddler. Perez-Colon was living with M1 and her mother at a motel. He posted a Craigslist advertisement seeking to “share real incest stories fetish stories underage pedo stories” with “real experiences and pictures.” An undercover FBI agent responded. Perez-Colon sent the agent pornographic images and videos of M1. A search of Perez-Colon’s smartphone revealed that he produced these and other similar pictures and videos. Perez-Colon also attempted to distribute an image of a toddler boy's genitals; the boy's mother took the photo and sent it to Perez-Colon to show him the boy’s rash.The Third Circuit affirmed his 55-year sentence. The court rejected Perez-Colon’s objections to his PSR’s treatment of Guideline 3D1.2, which required the court to group closely related counts together when determining Perez-Colon’s number of “units” of counts; to a two-level Guideline 2G2.1(b)(5) enhancement that applies “[i]f the defendant was a parent, relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the defendant”; and to a five-level 4B1.5(b) enhancement for “a pattern of activity involving prohibited sexual conduct.” View "United States of America v. Perez-Colon" on Justia Law

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. When Mack went to the back of the commissary to pray during shift breaks, the guards followed him and interfered with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack stopped doing so. The guards nevertheless engineered his termination from his commissary job. He sued.The district court granted the guards summary judgment on Mack’s lone surviving claim, under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb, citing qualified immunity. The Third Circuit vacated. While, as a matter of law, qualified immunity can be asserted as a defense under RFRA, the officers have not met their burden of establishing that defense. Framed in the light most favorable to Mack, evidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. If different facts come out at trial, the officers may again raise qualified immunity. View "Mack v. Yost" on Justia Law

Freeman was convicted, along with Miller and Collier, of second-degree murder. The jury had heard the confession of Miller, a non-testifying codefendant, with redactions that replaced the names of Collier and Freeman, with the substitutes “the first guy” and “the second guy.” The court gave a limiting instruction that the statement was to be considered only as to Miller, not as to the other defendants, in order to protect Freeman’s Sixth Amendment right to confront a witness against him. Freeman’s objection was overruled and rejected on appeal in state court.The district court concluded that a “Bruton” violation occurred and that the violation was not harmless, and granted Freeman habeas relief. The Third Circuit reversed. A Bruton violation occurred. When a statement is redacted— whether by substituting the codefendant’s name with a neutral pronoun, a blank space, or a symbol—in such a manner that “[a] juror … need only lift his eyes to [the codefendant], sitting at counsel table” to understand who is being implicated, the introduction of that statement is a Sixth Amendment violation. However, there was ample other evidence against Freeman, and the violative statement was largely duplicative of other evidence; there is no “grave doubt about whether [the error] had substantial and injurious effect or influence in determining the jury’s verdict.” The error was harmless. View "Freeman v. Superintendent Fayette SCI" on Justia Law

Rivera, a Newark police officer from 1993-2018, collected $78,941 in bribes from three brothel owners in exchange for protecting the owners from arrest, using law enforcement resources to assist them, and making things difficult for competing brothels. Rivera did not report the income from the bribes, for which he should have paid $17,408 in federal taxes. He was indicted on 14 counts. Rivera pleaded guilty to accepting corrupt payments with the intent to be influenced and rewarded, 18 U.S.C. 666(a)(1)(B)–(2), and aiding and assisting in the preparation of false tax returns, 26 U.S.C. 7206(2). The government agreed to dismiss the remaining counts if Rivera pleaded guilty and was sentenced to 46 months. The plea agreement included an appellate waiver that Rivera attested he read and fully understood.Nine months after the court “conditionally” accepted his plea, Rivera moved to withdraw his plea, claiming the court had deferred acceptance of it until the sentencing, which had not occurred. He argued Federal Rule of Criminal Procedure 11(d) permitted him to withdraw his plea “for any reason or no reason.” The Third Circuit affirmed the denial of Rivera’s motion. The district court stated that while it had deferred acceptance of the plea agreement, it had accepted the plea itself, which could not be withdrawn absent “a fair and just reason.” The Third Circuit enforce the waiver of Rivera’s right to appeal. View "United States v. Rivera" on Justia Law

In 2013, three armed men in ski masks entered a Harrisburg, Pennsylvania Cracker Barrel restaurant, robbed the victims at gunpoint, and stashed $8,000 in a bag. A victim hiding in the bathroom called 911. The robbers fled but were arrested nearby. Police discovered a loaded handgun approximately 10 feet from where Stoney was found. The cash and two other guns were also recovered.Stoney admitted his involvement and identified his co-defendants. Stoney was charged with Hobbs Act robbery and the Use of a Firearm During a Crime of Violence, 18 U.S.C. 2; 1951; 924(c)(1)(A). The firearm charge referenced the Hobbs Act robbery as the predicate offense, based on two theories of liability: Pinkerton and aiding and abetting. The indictment did not specify a completed Hobbs Act robbery but Stoney pled guilty, admitting to a completed gunpoint robbery.The Third Circuit affirmed the denial of Stoney’s successive motion under 28 U.S.C. 2255, rejecting arguments that his conviction should be treated as an attempted Hobbs Act robbery, which fails to qualify as a 924(c)(3)(A) predicate crime of violence or that his conviction, based on Pinkerton liability and aiding and abetting, does not qualify as a crime of violence. There is no question that Stoney personally committed a completed Hobbs Act robbery View "United States v. Stoney" on Justia Law

In 1990, Brow was convicted of possession with intent to distribute cocaine, possession with intent to distribute marijuana, and conspiracy to possess with intent to distribute marijuana and cocaine. The PSR determined that Brow was responsible for 492 grams of crack cocaine and 67 grams of marijuana and was subject to a maximum term of life imprisonment and a minimum term of 10 years’ imprisonment. Brow had two prior Virgin Islands convictions for third-degree assault and one for third-degree robbery. The PSR found that those convictions constituted crimes of violence. Brow, classified as a career offender, was sentenced to 30 years. In an unrelated 1994 decision, in the Northern District of Georgia, Brow was convicted of voluntary manslaughter and was sentenced to 10 years, “consecutively" to sentences previously imposed.Brow moved for an unspecified reduction of his term of incarceration under the First Step Act. The district court denied the motion, concluding that, for sentencing purposes, Brow remained a career offender with his Guidelines determination unchanged, and that applying the 18 U.S.C. 3553(a) factors, no sentence reduction was appropriate. The court specifically rejected Brow’s arguments about his age and likelihood of recidivism and that his crime did not involve violence or firearms.The Third Circuit affirmed, noting Brow’s “intriguing” effort. Although the incarceration portion of his drug conviction sentence is complete, he sought First Step Act relief that would lower the incarceration period of his unrelated, consecutive sentence. View "United States v. Brow" on Justia Law

In 2005, Brasby was convicted in state court of aggravated assault, a second-degree felony, for recklessly causing serious bodily injury to another person by shooting the person four times in the back. The New Jersey statute provided: A person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.” In 2019, police arrested Brasby after they observed him selling drugs. A search incident to the arrest found suspected controlled substances and a loaded stolen handgun.Brasby, indicted for illegal possession of a firearm by a felon, 18 U.S.C. 922(g)(1), entered into a plea agreement. The parties did not agree on whether Brasby’s 2005 conviction was for a crime of violence. The Third Circuit had previously held that a conviction for reckless conduct is insufficient to qualify as a crime of violence under the Sentencing Guidelines’ elements clause.The Third Circuit to affirmed his 57-month sentence based on a 57-71 month Guidelines range. Without the "crime of violence" enhancement, the range would have been 30-37 months. Brasby’s aggravated assault conviction qualified as a felony conviction for a crime of violence under U.S.S.G. 4B1.2(a) because the federal generic definition of aggravated assault—and therefore the Guidelines’ definition—includes the same mens rea of heightened recklessness as the New Jersey statute. View "United States v. Brasby" on Justia Law

Before the 2016 Democratic National Convention, the Secret Service announced that access to certain areas would be restricted. Graber, a paramedic, joined political protests outside the Restricted Area. Protestors breached the gated perimeter. The Philadelphia Police Department apprehended those within the Restricted Area. Graber was one of seven individuals taken into custody; the police did not prepare any arrest paperwork for Graber. Special Agent Boresky was charged with serving as an affiant for a criminal complaint against the arrestees. Another agent e-mailed Boresky a synopsis of the events and photographs. Boresky appeared before a Magistrate and signed an affidavit identifying Graber as having been arrested inside the Restricted Area, based upon his “personal knowledge,” “information developed during the course of this investigation,” and information 'imparted by other officers. Boresky was not present at the arrest, did not view any video evidence, and did not write the affidavit. Graber was detained overnight. Graber’s counsel provided news video clips confirming that Graber never passed through the fence. The charges against Graber were dismissed.Citing “Bivens,” in which the Supreme Court held that a cause of action existed against federal agents who violated the Fourth Amendment, Graber sued Boresky for false arrest, unlawful detention, and false charges. Denying a motion to dismiss, the district court held that a Bivens claim could be brought against Boresky. The court later dismissed Boresky’s qualified immunity summary judgment motion. The Third Circuit dismissed an appeal for lack of jurisdiction; the Bivens ruling is not a final decision and is not appealable under the collateral order doctrine. View "Graber v. Boresky" on Justia Law