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Third Circuit Opinion: United States v. Ferriero

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Ferriero, No. 15-4064 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit upheld the convictions of a former county Democratic party chairman for violations of the Travel Act, the Racketeering Influenced and Corrupt Organizations (RICO) Act, and wire fraud. The defendant had a contract with a vendor of emergency notification services to receive commissions for business that he was able to generate from municipalities. Defendant then introduced high-ranking officials from several towns to the vendor and encouraged them to do business while failing to disclose that he stood to gain financially.

Defendant argued on appeal that his conviction under the Travel Act, 18 U.S.C. §1952, should be overturned because the Government failed to prove that by violating New Jersey’s bribery statute he agreed “to undermine the integrity of the towns’ processes in considering whether to purchase the [vendor’s] product,” relying on United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). The Court disagreed, reasoning that Dansker applied that additional requirement to a previous version of the bribery statute which has since been repealed and replaced. The Court found that the current version of the statute, N.J.S.A. 2C:27-2, is more narrow than the previous one, and thus does not require the additional element. The Court held that the evidence was sufficient to support defendant’s violation of 2C:27-2 and his conviction under the Travel Act.

Likewise, the Court upheld the defendant’s conviction under RICO, 18 U.S.C. §1962(c). Defendant argued that there was insufficient evidence of a “nexus” between the business of the “enterprise” (the party organization) and the pattern of racketeering (bribery). The Court concluded that a sufficient nexus did exist, because the party organization hosted networking events for vendors and municipal officials, and it was the defendant’s practice, if not his official duty, to advise municipal officials on hiring vendors. The Court held that a rational juror could conclude that the pattern of bribery was one means by which the defendant conducted party business.

Finally, the defendant appealed his conviction for wire fraud, 18 U.S.C. §1343. Ferriero argued that an email which his business partner sent in response to a municipal official’s inquiry about who owned the vendor was truthful as far as it went, and that omission of Ferriero’s financial interest did not qualify as a “false representation.” The Court disagreed, holding that in context the email withheld “critical qualifying information.” The Court held that “whether a representation is false or fraudulent is a contextual inquiry that a jury is particularly well-suited to assess,” given the jury’s first-hand access to witness testimony. In this case, a rational jury could find that the omission of critical information alone was sufficient to support a conviction. Thus the Court rejected Ferriero’s appeal and upheld his conviction in its entirety.

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Third Circuit Opinion: United States v. Chapman

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Chapman, No. 16-1810 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit held that mailing threatening communications, in violation of 18 U.S.C. §876(c), qualifies as a “crime of violence” for purposes of determining career offender status under the U.S. Sentencing Guidelines. Violations of §876(c) are punishable by up to five years imprisonment generally, or up to ten years if directed against a federal judge or federal law enforcement official. Chapman had been convicted of two prior violations of §876(c), first after he mailed a letter threatening to kill President George W. Bush, and then after mailing a letter which threatened a federal judge and court staff. After violating the terms of his supervised release following his second conviction, Chapman sent another threatening letter to the federal prosecutor who was handling Chapman’s revocation. After pleading guilty, Chapman was deemed a career offender based on his three convictions under §876(c).

Chapman argued that mailing threatening communications was not a crime of violence because it did not require “violent physical force.” The Court applied a categorical approach to the question, comparing only the elements of the statute against the guideline and disregarding the particular facts of Chapman’s offenses. By this method, if the statute has the same element as the guideline, or defines the offense more narrowly, then a violation counts toward career offender status. If the statute defines offense conduct more broadly, then career status is not implicated. The Sentencing Guidelines define the predicate “crime of violence” as including any offense punishable by more than one year imprisonment that has as an element the “threatened use of physical force against another.” The statute prohibits communications “containing [] any threat to injure the person of the addresses or of another.” The Court noted the Supreme Court’s interpretation of “physical force” as “violent force” and reasoned that the common definition of “injure” implicates “physical force.” Therefore, the violations of §876(c) qualify toward career offender status. By its holding, the Court brought the Third Circuit into alignment with the First, Second, Eighth, and D.C. Circuits.

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Trump Administration Sets Strict New Course for Federal Prosecutions

John Roberts, Esq.
Arseneault & Fassett, LLP

The Attorney General of the United States, Jeff Sessions, has issued a memorandum to all federal prosecutors establishing the strict new policy of the Trump Administration’s Department of Justice (DoJ) for charging and sentencing federal offenses. The “Sessions memo” overturns a series of “Holder memos,” issued during the Obama administration, which had urged prosecutors to avoid charging crimes that carry mandatory terms of imprisonment in certain cases.

The Sessions memo outline two broad directives. First, federal prosecutors are to “charge and pursue the most serious, readily provable offenses.” Leaving nothing to the imagination, the memo defines “serious” offenses as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Second, the memo directs prosecutors to disclose to the sentencing court all facts that could impact a judge’s sentencing decision, and to seek sentences within the U.S. Sentencing Commission’s Guidelines. Any Government recommendations for variances or departures from the Guidelines requires the approval of supervisors. Further, prosecutors who wish to deviate from the principles of the memo must justify such with “unusual facts” and must document those special circumstances for the file.

The Sessions memo explicitly rescinds any previous DoJ policies which would be inconsistent with the new one, and it specifically cites the Holder memos issued in 2013 and 2014. The Holder memos had directed prosecutors to avoid seeking mandatory-minimum and enhanced sentences for nonviolent, low-level drug-distribution defendants who were not part of large-scale criminal organizations and did not have significant criminal records. Those relatively lenient policies are now history under the Trump administration.

By requiring front-line prosecutors to pursue the most serious provable charges and disclose all relevant facts to the sentencing court, the new policy seeks to deny them a major avenue of prosecutorial discretion — the ability to be flexible and reasonable in applying the law to the specific circumstances of each defendant to obtain the most just result. In light of these new policies, it is more important than ever in certain cases where a person is under scrutiny by federal law enforcement for an experienced criminal defense attorney to interface with prosecutors as early in the process as possible. In such cases, an early resolution may prove more favorable for the client than would be possible after an investigation has developed to the point where unreasonably serious charges are filed and prosecuted.

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New Jersey Supreme Court Eases Requirements for “Plain View” Warrantless Searches & Seizures

John Roberts, Esq.
Arseneault & Fassett, LLP

A recent decision by the Supreme Court of New Jersey has made it easier for the State to use evidence seized without a warrant against a defendant in a criminal trial. In State v. Xiomara Gonzales, the Court changed the law as to what constitutes a valid “plain view” exception to the general warrant requirement.

The U.S. and N.J. Constitutions ensure an individual’s right to be free from unreasonable searches and seizures. Generally, law enforcement agents must obtain a warrant from a court before they can lawfully search an individual’s home or automobile. Evidence that is obtained in violation of this general rule cannot be used as evidence against that person in a criminal trial. There are exceptions to this general rule, however, including the “plain view” exception. Among other things, police had to discover the evidence “inadvertently” for the plain-view exception to apply under the previous law. If police had advance knowledge that the evidence could be found, the evidence seized without a warrant could not be used at trial.

However, since 1990, when the U.S. Supreme Court decided Horton v. California, 496 U.S. 128, Federal law had a looser standard than New Jersey as to what factual conditions must be met for the plain-view requirement to apply. No longer.

In Gonzales, law enforcement was investigating an ongoing drug distribution enterprise. Wiretaps revealed that a drug transaction would take place at a suspected “stash house.” Police surreptitiously observed the transaction in which packages were loaded into Ms. Gonzales’s car. They followed Ms. Gonzales’s car as she drove away. After Gonzales committed several traffic violations, police pulled her over, ostensibly based only on the moving violations. During the traffic stop, police observed packages of heroin in the back seat area of her car. Gonzales was arrested and charged with drug offenses. The heroin was seized without a warrant and intended to be used as evidence against her.

Gonzales’s attorney filed a motion to suppress the drug evidence. Although the motion was denied at the trial court level, the Appellate Division reversed and granted the motion, reasoning that law enforcement’s prior knowledge that Gonzalez would be carrying drugs rendered the traffic stop a pretext and invalidated the “plain view” discovery and seizure of the heroin. The State appealed the decision to the New Jersey Supreme Court.

In its decision, the Court abandoned the prior New Jersey requirement that the discovery of evidence be “inadvertent” and instead followed the Federal standard. The Court reasoned that the inadvertence condition required courts to determine police officers’ subjective thoughts and beliefs at the time of the discovery. By not requiring inadvertence, the Court made the standard purely objective reasonableness rather than subjective state of mind. Now, contraband may be seized without a warrant when (1) the police officer is lawfully in the area where the evidence is seen and seized and (2) it is immediately apparent that the item is contraband or evidence of a crime. Through its decision, the Court brought New Jersey in synch with the law of the Federal government and a majority of states. The Gonzales decision applies prospectively – that is, only to future cases.

Anyone who has been charged with a criminal offense should obtain a criminal defense attorney. An experienced attorney who is aware of the latest developments in search and seizure law can help identify potential weaknesses in the State’s case which could support pre-trial motions to suppress evidence that has been obtained in violation of the law.

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Changes to Federal Sentencing Guidelines Affect Definitions of “Crimes of Violence” and “Career Offenders”

John Roberts, Esq.
Arseneault & Fassett, LLP

 

Changes to the U.S. Sentencing Guidelines have redefined “crime of violence” and “career offenders” for sentencing purposes. These changes affect key aspects of the Guidelines which Federal courts use to determine some of the most lengthy sentences.

The U.S. Sentencing Commission recognized that the previous definition of “crime of violence” was widely considered complex and unclear. The Commission was further prodded by the Supreme Court’s 2015 decision in Johnson v. United States, which found that the broad language used to define “violent felony” in the Armed Career Criminal Act — coincidentally, the same language used in the previous version of the Guidelines — was unconstitutionally vague. Finally, the Commission found that courts were imposing an increasing proportion of sentences below the Guideline ranges.

In the latest changes to the Guidelines, the Commission narrowed the definition of “crime of violence” by removing the impermissibly broad language, and revised and narrowed the list of offenses that are always deemed crimes of violence. For example, burglary of a dwelling and involuntary manslaughter have been removed from the enumerated offenses, while the use and even the unlawful possession of certain firearms have been added.

In another change, the Commission added a provision for downward departures to the Guidelines governing “career criminals.” Defendants who are deemed to be career criminals receive the harshest sentences, often at or near the statutory maximums. The latest change permits courts to depart from the Guidelines and impose a lower sentence where one of the defendant’s prior convictions was classified as a felony by the Federal Guidelines but as a misdemeanor by the State. This change provides an opportunity for an astute defense attorney to advocate for a more just sentence than a strict interpretation of the Guidelines would otherwise result in.

The Guidelines greatly influence the sentences that Federal judges impose. Criminal statutes, enacted by Congress, impose a very broad range of potential sentences for federal crimes – for example, anywhere from zero to ten years. The Guidelines are designed to help judges to narrow down the appropriate sentencing range for a particular defendant to a matter of months – for example, 0 to 6 months, or 33 to 41 months, or 87 to 96 months – and thus provide uniformity of sentences for similar criminal conduct throughout the Federal court system.

To achieve this goal, the Guidelines provide courts with a multitude of complicated formulas which consider, among other things, the law that was violated; the specific facts of each case such as the number of victims, the seriousness of the loss or damage, and the role that each defendant played; and the defendant’s criminal history, if any. Even small adjustments in these factors can make the difference between a fair sentence and a harsh one.

Although Congress established the U.S. Sentencing Commission which created and maintain the Guidelines, the Supreme Court determined that the Guidelines are not mandatory upon Federal courts. Judges are authorized to impose sentences above or below the Guidelines, based on the unique facts and legal arguments that prosecutors and defense attorneys advocate before the court.

These latest changes to the Guidelines underscore the importance that anyone who has been charged with — or is even under investigation for — a Federal offense should immediately consult with an experienced criminal defense attorney who has an intimate knowledge of the latest Guidelines. While every attorney’s goal is always to avoid having any sentence imposed on a client, the most effective attorneys will also consider all the nuances of the Guidelines to advise and advocate for the best possible result.

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