DEFENSE LINK

Alleyne and Mandatory Minimums

On June 17, 2013, in Alleyne v. United States, 133 S.Ct. 2151 (2013), the Supreme Court ruled in a 5-4 decision that any fact (other than a prior conviction) that either triggers or increases a statutory mandatory minimum is a fact that must be pleaded in the indictment and found by the jury beyond a reasonable doubt (or, in the case of a plea, admitted by the defendant). Justice Thomas wrote the majority opinion overruling Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986). Alleyne was convicted of Hobbs Act robbery, under 18 U.S.C. § 1951, and using or carrying a firearm during and in relation to a crime of violence, under 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) provides escalating, consecutive mandatory minimums depending on whether the firearm was used/carried (5 years), brandished (7 years), or discharged (10 years). On a special verdict form, the jury explicitly rejected the contention that Alleyne “brandished” the firearm. At sentencing, however, the district court imposed the 7-year mandatory minimum based on its own finding by a preponderance of the evidence that Alleyne reasonably could have foreseen that his accomplice would brandish a gun. The Fourth Circuit affirmed under Harris. The Supreme Court reversed based on Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact which increases a statutory maximum must be charged in the indictment and proved to the jury beyond a reasonable doubt. In overruling Harris, the Court explained that, "there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum,” and, therefore, “Harris was inconsistent with Apprendi." 133 S.Ct. at 2163. “The essential point,” the Court said, “is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime.” Id. at 2162-63.

MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS

LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER

OCTOBER 2013

REGISTER NOW FOR THE FALL TRAINING

SEMINAR FOR CJA PANEL ATTORNEYS

On Friday, October 25, 2013, the Federal Community Defender Office and the United States District Court will host our annual Fall Training Seminar for CJA Panel attorneys, Federal Defenders, and other federal criminal defense practitioners. This program is approved by the PA CLE Board for three (3) hours of substantive CLE credit and one (1) hour of ethics CLE credit. The program will feature topics such as Understanding Addiction in Drug Abuse – the Brain and Behavior, Prosecutorial Misconduct, Pitfalls of Proffers, and Restitution in Possession and Receipt of Child Pornography Cases. For registration information contact Kim Campoli at Kimberly_Campoli@fd.org.

Federal Community Defender Office for the Eastern District of PA

Rebecca Blaskey, First Assistant Federal Defender Kai Scott, Chief, Trial Unit

Nina Carpiniello Spizer, Assistant Chief Trial Unit Brett Sweitzer, Chief of Appeals

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Editors Jennifer Nimmons Herman

Attorney Advisor ▬

Kimberly Campoli Paralegal/Panel Administrator

INSIDE THIS ISSUE Alleyne and Mandatory Minimums Page 1 Fall Training Seminar Spotlight: Dr. Lipman Page 3 Recent Third Circuit and Supreme Court Cases Page 3

Thus, under Alleyne, any fact that triggers or increases a mandatory minimum must be charged in the indictment and either admitted by the defendant or proved to the jury beyond a reasonable doubt. Moreover, as a matter of law, such facts are properly “elements” of an aggravated offense — not “sentencing factors.” Accordingly, the jury must be instructed to return a verdict of not guilty if the fact is not proven. (The government may, however, be able to avoid this consequence by use of special interrogatories akin to those commonly used for drug quantity in prosecutions under 21 U.S.C. § 841.) In considering whether your client has a viable defense to the indictment, be sure to consider whether there is any defense to facts that trigger or increase the mandatory minimum, i.e., are you able to present a defense to the brandishing element even though there is no single defense to the entire case? If so, you may wish to try the case on that issue, even if you concede other aspects of the case. If your client will plead guilty, you will need to decide whether it is in your client’s best interest to admit to facts that establish a mandatory minimum as part of a plea agreement. When making this decision, be sure to advise your client that the government has the burden to prove those facts to a jury beyond a reasonable doubt. At sentencing, be sure to object if any triggering facts were not admitted in your plea or found by the jury at trial. If you have a case on appeal where a fact triggering or increasing a mandatory minimum was not charged in the appropriate count of the indictment, you should seek to have the conviction vacated and the matter remanded for resentencing without the mandatory minimum. Because the indictment failed to plead an essential element, the defendant is entitled to this relief regardless of whether objection was raised in the district court, and even if the defendant pled guilty. See United States v. Spinner, 180 F.3d 514 (3d Cir. 1999). Note that Alleyne has no impact on fact-finding under the federal sentencing guidelines. The Supreme Court made clear that judges may still find uncharged facts by a preponderance when exercising discretion within a statutory range. See 133 S.Ct. at 2161 n.2, 2163. Also note that, while the Court did not address the vitality of Almendarez-Torres v. United States, 523 U.S. 224 (1998), the majority opinion in Alleyne suggested it may be an open question. See 133 S.Ct. at 2160 n.1. Therefore, consider preserving an objection in cases involving mandatory minimums based upon prior convictions. It is unlikely that Alleyne will apply retroactively to cases that already are final. Although there is some litigation in this regard, the Apprendi line of cases has generally been held not to be retroactive. See Schriro v. Summerlin, 542 U.S. 348 (2004). If former clients are adamant in their intent to pursue relief under Alleyne, be sure to advise them that their filing deadline will be one year from the date of the decision, namely, June 17, 2014.

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Jeffrey M. Lindy, Esquire CJA Panel Representative

Eastern District of PA

Please contact Jeff Lindy with any CJA issues,

comments, or concerns: Lindy & Tauber

1800 JFK Boulevard, Suite 1500 Philadelphia, PA 19103

(215) 575-0702 jlindy@LindyLawFirm.com

Fall Training Seminar Spotlight: Dr. Lipman and Understanding Addiction in Drug Abuse –

The Brain and Behavior

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OCTOBER 2013

Jonathan Lipman, PhD will discuss your brain and addiction at the Fall Training Seminar for CJA Panel Attorneys. Dr. Lipman has a doctorate in neuropharmacology from the University of Wales with externship experience at the National Hospital for Nervous Diseases, London. His postdoctoral fellowship was at the University of Tennessee Center for the Health Sciences (Biochemistry and Anesthesiology departments) where he began consulting in forensic aspects of neuropharmacology, intoxications, pain management, adverse drug experiences, and addiction. He has held faculty appointments at Vanderbilt University and worked in the areas of dementia and therapeutic drug development in the pharmaceutical and medical devices industries. Particular research interests are in the effects of drugs used in treatment of chronic pain states and in the association between individual personality variables and the idiosyncratic effects of psychoactive drugs. Dr. Lipman currently lives on a mountain wilderness in the Cherokee National Forest and consults through Neuroscience Consulting, Inc. while also serving as Associate Clinical Professor of Psychiatry and Behavioral Science at East Tennessee State University. We are excited to welcome Dr. Lipman to our training and look forward to learning more about addiction and drug abuse.

Recent Third Circuit and Supreme Court Cases Christofer Bates, RWA, EDPA

Supreme Court

Cert. Granted - 18 U.S.C. § 922(g)(9) Misdemeanor Crime of Domestic Violence United States v. Castleman, No. 12-1371 (Cert. Granted Oct. 1, 2013). ISSUE: Whether Castleman’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

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Cert. Granted - Vehicle Stops and Anonymous Tips Navarette v. California, No. 12-9490 (Cert. Granted. Oct. 1, 2013). ISSUE: Whether the police, after receiving an anonymous tip about drunken or reckless driving, must actually observe that kind of misconduct before they may stop a vehicle.

Third Circuit

Supervised Release Revocation / Uncharged Conduct United States v. Carter, --- F.3d ---, 2013 U.S. App. LEXIS 18988 (3d Cir. Sept. 13, 2013). The categorical approach does not apply when the district court imposes a supervised release revocation sentence under U.S.S.G. § 7B1.3. The district court may consider a defendant’s actual conduct, and is not limited to only the crime of conviction when determining whether a defendant violated his supervised release by committing a new offense. However, the district court must point to which statute the defendant has violated. Here, the district court found Carter committed a “forcible sex offense,” but failed to point out which statute he violated. Such error was harmless because the court explained that it would have sentenced him the same even if the offense conduct was graded as a “B” violation instead of an “A” violation for the forcible sex offense. Reasonable Suspicion / Unverified Anonymous Tip from Foreign Government / Sufficiency of Evidence / Prosecutorial Misconduct in Closing Argument United States v. Benoit, --- F.3d ---, 2013 U.S. App. LEXIS 19312 (3d Cir. Sept. 19, 2013). (1) The United States Coast Guard boarded a United States vessel in international waters and conducted a search on the basis of an anonymous and unverified tip from Grenadian authorities that the ship might be carrying illegal narcotics. The Court held that the tip bore sufficient indicia of reliability to establish reasonable suspicion. The tip came from another foreign government with which the United States has a working relationship to prevent drug trafficking. Thus, the Coast Guard could assess the Grenadian authorities’ reputation, and they could have been held responsible if the allegations turned out to be fabricated. Benoit’s inconsistent answers to the Coast Guard officers’ questions also gave rise to reasonable suspicion for the search. The Coast Guard acted reasonably in detaining the vessel at a wharf approximately 50 miles away, conducting a canine sniff, performing an x-ray test, and drilling into the vessel’s stern, where they found cocaine. (2) The government established a proper chain of custody for the cocaine. It did not need to introduce the cocaine into evidence to obtain a conviction. Additionally, the circumstantial evidence was sufficient to prove beyond a reasonable doubt that Benoit knew the thing being trafficked was narcotics. Benoit owned the ship for several years and certain alterations had been made to it. Given the ship’s small size and the large amount of cocaine it was transporting, the jury could have inferred that as the

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ship’s master, Benoit would have known there were illegal narcotics on board. Benoit’s inconsistent answers were also circumstantial evidence of his knowledge the trafficked items were drugs. (3) The government’s improper statement in summation that the Coast Guard “just saved this country from 250 kilograms” of cocaine did not warrant a mistrial. The scope of this improper comment was minimal in the context of the entire trial, the district court’s curative instruction adequately addressed the error, and the evidence of Benoit’s guilt was substantial. True Threats / Sufficiency of Indictment / Sufficiency of Evidence United States v. Elonis, --- F.3d ---, 2013 U.S. App. LEXIS 19316 (3d Cir. Sept. 19, 2013). (1) A statement is a true threat under 18 U.S.C. § 875(c), when a reasonable speaker would foresee the statement would be interpreted as a threat. The Supreme Court’s decision in Virginia v. Black, 538 U.S. 343, 359 (2003) did not overturn this standard, as previously articulated in United States v. Kosma, 951 F.3d 549, 557 (3d Cir. 1991). The district court’s instruction to this effect was proper. (2) The indictment was sufficient to allege five violations of § 875(c), because it described the elements of the violations, the nature of the threats, the subjects of the threats, and the time period of the alleged violations. The government was not required the quote the language of each charged threat in the indictment. (3) There is no rule that says conditional statements cannot be true threats. The words and context can demonstrate whether the statement was a serious expression of an intent to harm.

(4) The Internet is an instrumentality and channel of interstate commerce. Therefore, proving internet transmission alone is sufficient to prove the threat was transmitted through interstate commerce, and the district court’s jury instruction was proper. Waiver of Suppression Arguments / Probable Cause United States v. Joseph, --- F.3d ---, 2013 U.S. App. LEXIS 19315 (3d Cir. Sept. 19, 2013). In the suppression context, a party must have raised in the district court the specific argument raised on appeal, or else it is waived. There is no plain error review. This applies to both the defendant and the government. “Issues” and “arguments” are distinct concepts. An issue can be broader in scope than an argument in that an issue may be addressed by multiple arguments. For parties to preserve an argument for appeal, they must have raised the same argument in the district court. Raising an issue that encompasses the appellate argument is not sufficient. The Court found waiver here because in the district court the defendant challenged probable cause as to whether the bills were counterfeit, and on appeal he challenged probable cause as to mens rea. However, Joseph is the first Third Circuit case clearly confirming that, for there to be probable cause to arrest or search, the officer(s) must have probable cause to believe each element of the offense is present.

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Financial Eligibility for Appointed Counsel / Reimbursement United States v. Konrad, --- F.3d ---, 2013 U.S. App. LEXIS (3d Cir. Sept. 20, 2013). (1) The district court properly ordered Konrad to pay the cost of court-appointed counsel, because his net financial resources exceed the amount needed for the necessities of life. See 18 U.S.C. § 3006A(6); 7A Guide to Judicial Policy § 210.40.30(a). (2) Retirement funds and joint bank accounts may be considered to determine reimbursement, because they are within the defendant’s control. (3) The district court did not err in ordering Konrad to pay the estimated $6,000 cost of private legal representation. Since Konrad was not entitled to court appointed counsel, reimbursement should not be limited to the subsidized CJA reimbursement rate. The $6,000 was properly calculated by a Special Master, who selected the lowest estimate submitted by private defense attorneys. Sentencing / Upward Enhancement for Sophisticated Money Laundering United States v. Fish, --- F.3d ---, 2013 U.S. App. LEXIS 200000 (3d Cir. Oct. 1, 2013). (1) Clear error review applies to the district court’s application of U.S.S.G. § 2S1.1(b)(3) even where there is no dispute over the factual determinations. (2) Application Note 5 explains a two level “sophisticated money laundering” enhancement is typically appropriate where the scheme involves the use of fictitious entities, shell corporations, two or more layers of transactions, transfers, or transmissions of criminally derived funds intended to appear legitimate, or offshore financial accounts. But these factors are not exhaustive. When the modus operandi of a money laundering scheme is not made up of these factors, the district court must make findings on the operations of the scheme and determine from those facts whether the scheme is “complex or intricate.”

(3) In Fish’s case, the district court’s application of U.S.S.G. § 2S1.1(b)(3) was upheld because the court found that the scheme was long-running and difficult to uncover because it used multiple outlets for cash exchanges, multiple couriers, and multiple locations for the transactions. The perpetrators also made efforts to keep facts from the cooperating witness and made efforts to evade detection by using code language and changing SIM cards in their cell phones. 18 U.S.C. § 2241 / Actual Innocence / Witness Tampering by Murder - 18 U.S.C. § 1512 / Nexus to Official Proceeding / Investigation-Related Communications - Reasonable Likelihood Test United States v. Tyler, --- F.3d ---, 2013 U.S. App. LEXIS 20213 (3d Cir. Oct. 3, 2013). (1) A person convicted of a federal crime may file a habeas corpus petition under 28 U.S.C. § 2241 if a § 2255 petition would be inadequate or ineffective, see 28 U.S.C. § 2255(e), such as where the petitioner asserts a claim of actual innocence and there is a procedural bar to filing a § 2255 petition. Tyler argued that he is actually innocent because subsequent Supreme Court precedent in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) and Fowler v. United States, 131 S. Ct. 2045, 2052 (2011), rendered his conduct non-criminal.

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(2) In any 18 U.S.C. § 1512 prosecution charging obstruction of justice involving an official proceeding, the government is required to prove a nexus between the defendant’s conduct and a particular official proceeding before a judge or court of the United States that the defendant had contemplated. In this case, there was no evidence that Tyler planned to do anything other than prevent an informant’s testimony at his brother’s state trial. (3) Fowler overruled United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996) to the extent that Stansfield permitted a conviction for murder of a witness to prevent investigation-related communication to a federal law enforcement officer where the defendant believed the witness might communicate with federal authorities. Now, to sustain a conviction for murder of a witness to prevent investigation-related communication with a federal officer, the government must prove beyond a reasonable doubt that: (1) the defendant killed or attempted to kill a person; (2) the defendant was motivated by a desire to prevent the communication between any person and law enforcement authorities concerning the commission or possible commission of an offense; (3) that offense was actually a federal offense; (4) there was a reasonable likelihood that the person whom the defendant believed may communicate with law enforcement would in fact make a relevant communication with a federal law enforcement officer. Here, there was no evidence to show a reasonable likelihood that the informant Tyler murdered would have spoken to federal agents. On remand, the district court has jurisdiction to consider the merits of Tyler’s actual innocence claims in connection with this § 2241 petition. Juvenile Life Without Parole / Successive Habeas Petitions / Retroactivity In re: Pendleton, No. 12-3617, In re: Baines, No. 12-3996, In re: Grant, No. 13-1455, --- F.3d ---, 2013 U.S. App. LEXIS 20216 (3d Cir. Oct. 3, 2013). The petitioners in these cases were prisoners serving mandatory life sentences for crimes they committed as juveniles who were all seeking to file “second or successive” habeas corpus petitions under 28 U.S.C. §§ 2254 or 2255. Petitioners were all raising claims under Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), which held that mandatory life without parole for juveniles violates the Cruel and Unusual Punishment Clause of the Eight Amendment. Individuals hoping to file a second or successive petition must make a “prima facie” showing that their claim relies on a new constitutional rule of law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. The Third Circuit joined the Second, Fourth, and Eight Circuits in holding that the petitioners made a prima facie showing that Miller is retroactive (the Eleventh and Fifth Circuits have held the opposite). The Third Circuit cautioned that their grant is tentative. The respective district courts in each case were instructed to dismiss the habeas corpus petitions for lack of jurisdiction if the courts find that the requirements for filing a second or successive petition have not in fact been met.

DEFENSE LINK

Leigh M. Skipper, Chief Federal Defender

Rebecca Blaskey, First Assistant Federal Defender Kai Scott, Chief, Trial Unit

Nina Carpiniello Spizer, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals

Federal Community Defender Office

For the Eastern District of Pennsylvania Suite 540 West – The Curtis Center

601 Walnut Street Philadelphia, PA 19106 Phone (215) 928-1100

WANT MORE?

VISIT OUR WEBSITE AT HTTP://PAE.FD.ORG AND THE THIRD CIRCUIT BLOG AT WWW.CIRCUIT3.BLOGSPOT.COM

Contact Kimberly Campoli

if you have a new email address, office address, or telephone number, for any

CJA Panel related questions, or if you wish to

withdraw from the CJA Panel for the EDPA.

Kimberly_Campoli@fd.org

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