Notice Of Appeal Summer 2021 – Criminal Law

Defendants pleaded guilty to their respective crimes and
stipulated that they would not argue, at sentencing, for the
imposition of a sentence outside the Guidelines range. At
sentencing, the Defendants did just that, and asked the district
court for leniency and below-Guidelines sentences.

HOLDING

The Court reversed and remanded for re-sentencing because the
Defendants had breached their plea agreements with the Government.
The Court noted that the plea agreements did not restrict the
district court’s obligation to consider the factors set forth
in 18 U.S.C. § 3553(a). Nor was it improper for one of the
defendants to provide the sentencing judge with information related
to the sentence of a co-conspirator, imposed after entry of his
plea agreement. However, the plea agreements precluded arguments
for sentences below the stipulated Guidelines ranges, and the
Defendants were bound to these contractual terms.

KEY QUOTE

 “Similarly, although courts must give both defense
counsel and the defendant an opportunity to speak before imposing a
sentence, we agree with the government that Rule 32(i) does not
give defendants license to disavow their obligations under a plea
agreement. See United States v. Ward, 732 F.3d 175,
182 (3d Cir. 2013) (declaring that ‘the defendant’s right
of allocution is not unlimited’). To hold otherwise would allow
defendants to reclaim rights they bargained away to minimize
sentencing exposure.” (Slip Op. at 21.)

CONCURRENCE/KEY QUOTE

“This certainly does not mean that one who signs a plea
agreement forfeits the right of allocution and thereafter can make
absolutely no statement to the court. It does mean that counsel
cannot orchestrate a presentation that is clearly intended to shred
a plea agreement while purporting to merely inform the court and
safeguard a client’s right of allocution.” (McKee
concurrence at 3-4.)

Court Remands for Re-Sentencing in Anti-Bribery Case

A jury convicted Defendant of conspiracy to bribe voters during
his campaign for a city council seat. At sentencing, the district
court varied from an offense level of 14, to an offense level of
eight, and imposed a sentence of three-months incarceration. The
district court declined to apply a two-point enhancement for
obstruction of justice but applied a two-point enhancement for an
aggravating role in the scheme.

HOLDING

The Court vacated and remanded for re-sentencing. The Court
determined that it lacked a meaningful opportunity to review the
sentencing decision. It found the district court did not adequately
explain its reasons for declining to apply the obstruction of
justice enhancement. The Court also determined the application of a
two-point aggravating role enhancement contradicted the plain
language of the Guideline. However, the Court declined to instruct
the district court to apply a four-level enhancement for playing a
leadership role in the conspiracy and a two-level increase for
obstruction of justice.

KEY QUOTE

“Because there are no detailed findings of fact to review
nor an explanation as to how the District Court reached the
sentence it imposed, we do not regard this as the ‘rare case
where we can be sure that an erroneous Guidelines calculation did
not affect the sentencing process and the sentence ultimately
imposed.’ [United States v.] Langford,
516 F.3d [205, 219 (3d Cir. 2008)]. Thus, the error was not
harmless and we will remand so the District Court may correct the
procedural errors involving the two enhancements.” (Slip Op.
at 24.)

Court Vacates Conviction of Criminal Contempt

Defendant entered a plea deal with the Government for drug
trafficking. She provided cooperating testimony on several matters.
But then she invoked her Fifth Amendment privilege against
self-incrimination and refused to testify at an alleged
co-conspirator’s revocation-of-supervised-release hearing.
Finding the invocation improper, the district court found Defendant
in criminal contempt.

HOLDING

The Court vacated the contempt order and remanded for judgment
of acquittal. After Defendant invoked the Fifth Amendment, the
district court should have determined if the fear of incrimination
was reasonable, before ordering Defendant to testify. The district
court erred when it did not make this assessment. Further,
Defendant’s fear — and invocation — was proper,
because her plea agreement only bound the United States Attorney
for the District of the Virgin Islands from further prosecution; it
did not preclude prosecution in other jurisdictions.

KEY QUOTE

“[T]he DVI obtained an indictment for criminal contempt and
secured a guilty verdict. All fair if, as the DVI claimed,
Morton’s invocation was improper. Answering that question
required answering another question: whether the testimony the DVI
sought could not have possibly tended to incriminate Morton in new
crimes. Because that question remains unanswered, the District
Court’s order requiring Morton to testify was invalid. And
without a valid court order, there is no criminal contempt.”
(Slip Op. at 2.)

Conviction of Charter School Operator Upheld

The former owner of a for-profit education company received
public funding to run a charter school for the Philadelphia School
District. Instead of using those funds earmarked for educational
purposes, Defendant embezzled the funds for personal use and for
the benefit of his co-conspirator, Chaka Fattah, Jr. A jury
convicted Defendant of federal program embezzlement, among other
related charges.

HOLDING

The Court affirmed his conviction and sentence. The Court
rejected Defendant’s arguments that the district court erred in
instructing the jury on intentional misapplication. Agreeing with
the First, Second, and Tenth Circuits, the Court held 18 U.S.C.
§ 666(a)(1)(A) reaches unauthorized use of property, even if
it benefits the victim. And even under Defendant’s reading of
the offense-statute, the Government proved that Defendant actually
embezzled the funds for his own benefit.

KEY QUOTE

“This case is not like [United States
v.] Kelly, where the prosecution’s claim of
property fraud rested only on a novel theory that the defendants
temporarily ‘commandeer[ed]’ the George Washington Bridge
(despite obviously not stealing the massive structure) or caused
only incidental wage expenses associated with carrying out their
regulatory action. 140 S. Ct. [1565,] 1572 [(2020)]. Shulick
committed a real, tangible taking of money that was rightly owed to
the School District and the at-risk children of Southwest. That was
the Government’s consistent, chief theory throughout the trial,
and the evidence of this reality was overwhelming.” (Slip Op.
at 33-34.)

Successive Prosecution Did Not Violate the Double Jeopardy
Clause

A state jury convicted Defendant of offenses related to arson,
where the arson had led to several deaths. Defendant sought habeas
relief, alleging that the Government failed to disclose it had paid
witnesses to testify against Defendant. The state court granted
Defendant a new trial, and, shortly thereafter, a federal grand
jury indicted Defendant on related arson charges. Defendant
unsuccessfully moved to dismiss the federal indictment.

HOLDING

The Court affirmed the denial of Defendant’s dismissal
motion. In doing so, the Court declined to extend Oregon
v. Kennedy, 456 U.S. 667 (1982) to the facts of
Defendant’s case. In Kennedy, the Supreme Court
held the Double Jeopardy Clause forbids retrial when the
prosecution has enticed and caused a successful defense motion for
mistrial. The Court explained that
the Kennedy exception applies only in cases
involving a successful motion for mistrial, not relief granted in
post-conviction, collateral proceedings.

KEY QUOTE

“[W]e resolve the issue and hold that
the Kennedy exception does not apply beyond the
mistrial context to cases in which a post-conviction court has
ordered a new trial due to prosecutorial misconduct.
In Kennedy, the Supreme Court already addressed the
[following concerns: ‘[W]e … hold that the circumstances
under which such a defendant may invoke the bar of double jeopardy
in a second effort to try him are limited to those cases in which
the conduct giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a
mistrial.'” (Slip Op. at 12) (internal citation
omitted).

Court Rejects Application of 22-Level Sentencing Enhancement
for Fraud Loss

Defendant pleaded guilty to impersonating a federal agent and
importing counterfeit items with intent to defraud. Defendant had
sold the counterfeit U.S. coins for profit. The sentencing court
applied a 22-level enhancement for fraud loss and two additional
sentencing enhancements for the use of sophisticated means and the
abuse of trust.

HOLDING

The Court vacated the sentence and held the district court’s
increase of the offense level for intended loss constituted clear
error. The Court rejected the Government’s fair market estimate
of Defendant’s intended loss — a loss that it held
grossly over-valued the worth of the rare coins, where the
Government never proved their value to the sentencing court.

KEY QUOTE

“Kirschner challenges the inclusion of the intended losses
associated with the six high-value counterfeits. Kirschner contends
that the District Court never found by a preponderance of the
evidence that he ‘purposely sought to inflict’ the losses
the government claims he intended to inflict. He says that he never
had access to the markets presupposed by the government’s
‘fair market value’ methodology, nor did he attempt to
access such markets. … We agree. … It is not clear whether
Kirschner intended to evolve his operation to attempt the type of
rarefied sales contemplated by the government’s loss figures.
Nor can we say the District Court’s error adopting the
government’s methodology and resulting loss figure was
harmless.” (Slip Op. at 8-9).

Court Overturns Suppression of Evidence Based on Good-Faith
Exception

Indicted on child pornography charges, Defendant successfully
moved to suppress seized images of child pornography. The warrant
that was initially approved described child molestation. Although
the supporting affidavit had no express allegations that the
Defendant possessed child pornography, it asserted specific
instances of sexual abuse in his home, interest in keeping images
of children while undressed, and that sexual abusers often keep
pornographic images. The district court excluded the seized
pornographic images, finding the supporting affidavit insufficient
to establish probable cause. The district court also rejected the
good-faith exception to the exclusionary rule.

HOLDING

The Court held that the officer reasonably relied on the issued
warrant in good faith, even if the warrant was later held to be
defective. Further, the Court held that, because the initial
warrant allowed both seizure and search of electronic devices, and
supported good-faith reliance, a search pursuant to a successive
warrant, and within the scope of the first warrant, was lawful.

KEY QUOTES

“The District Court’s primary criticism of the
affidavit was that it failed to formally accuse Caesar of violating
Pennsylvania’s child pornography statute and identified no
direct evidence that Caesar took photos of his victims or kept
child pornography in his home — the two categories of images
identified in the warrant application. But therein lies the rub.
‘[D]irect evidence linking the place to be searched to the
crime is not required’ to establish probable cause.” (Slip
Op. at 20.)

“Because the initial warrant permitted both the seizure and
search of the electronic devices and supported the officers’
good faith reliance, the third warrant was unnecessary to review
the contents of the devices.” (Slip Op. at 27.)

Non-Precedential Opinions of Note

United States v. Taylor (May 18, 2021), No.
19-3545