Recently in Criminal Law Category

Defendant's sentence for unlawful possession of a firearm by a person previously convicted of a felony is vacated and remanded where: 1) the district court is restricted to considering the materials outlined by the Supreme Court in Sheppard for the sole purpose of determining to which part of the Pennsylvania simple assault statute defendant actually pled guilty to; and 2) in the event the materials do not demonstrate the mens rea to which defendant pled guilty, his simple assault conviction cannot qualify as a crime of violence in this case in light of the government's representation that it does not seek to define that conviction as a crime of violence to the extent it is premised on reckless conduct.     

Read US v. Johnson, No. 08-3693

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. No. 08-cr-0082-001)  

District Judge: Honorable Donetta W. Ambrose

Opinion Filed November 18, 2009

Judges

Before: Smith, Fisher and Nygaard, Circuit Judges

Opinion by Fisher, Circuit Judge 

Counsel

Counsel for Appellant: Renee Pietropaolo, Office of Federal Public Defender

Counsel for Appellee:  Robert L. Eberhardt, Rebecca R. Haywood, Laura S. Irwin, Office of the US Attorney

District court's conviction of defendant for tax evasion and conspiracy to defraud the United States is affirmed where: 1) upholding the government's inclusion of multiple years of evasion in a single count was proper; and 2) the government's charge was not impermissibly duplicitous because the statutory language does not prohibit the government's decision to charge defendant for multiple years in one count and because analysis of the concerns traditionally associated with duplicitous charges demonstrates that defendant was not prejudiced by that decision. 

Read US v. Root, No. 08-2888

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-00149)  

District Judge: Honorable Berle M. Schiller

Opinion Filed October 29, 2009

Judges

Before:  McKee, Hardiman, and Greenberg, Circuit Judges

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  Michael J. Fischer, Robert A. Zauzmer, Office of the United States Attorney

 Counsel for Appellee:  Bradley D. Barbin

District court's decision to exercise its discretion to grant defendant a downward departure under USSG section 4A1.3 as to his criminal history category, but not with respect to his offense level, is affirmed as the district court properly applied the Guidelines when it held that it could not depart downward in offense level under section 4A1.3 on the basis of defendant's overstated criminal history.  Furthermore, the district court adequately considered defendant's argument for a downward variance and the 37-month term of incarceration was substantively reasonable.   

Read US v. Grier, No. 07-3507

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. No. 06-cr-00173)  

District Judge: Honorable Yvette Kane.

Opinion Filed October 26, 2009

Judges

Before:  Sloviter and Hardiman, Circuit Judges, and Pollak, District Judge

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  William A. Behe

Counsel for Appellee:  Edward J. Rymsza

District court's denial of defendant's petition for habeas relief is affirmed as the Bureau of Prisons (BOP)articulated sufficient rationale for 28 C.F.R. section 550.58(a)(1)(vi)(B) to satisfy the arbitrary and capricious standard set forth in APA section 706(2)(A).  Furthermore, although the BOP's public safety rationale was not explicit in the Federal Register notices for the 1997 or 2000 regulations, the rationale may reasonably be discerned from the regulatory history and attendant litigation.   

Read Gardner v. Grandolsky, No. 09-1742

Appellate Information

On Appeal from the United States District Court for the Middle District of New Jersey

(D.C. Civil No. 08-cv-06127) District Judge: Renee Marie Bumb.

Opinion Filed October 26, 2009

Judges

Before: Fisher, Jordan, and Van Antwerpen, Circuit Judges

Per Curium Opinion 

Counsel

Counsel for Appellant: Albert Gardner 

Counsel for Appellee:  Paul A. Blaine, Office of the United States Attorney

District court's conviction of a publicly-funded non-profit organization's president and vice-president for honest services mail and wire fraud, arising from personal use of funds that were to be used for a Navy project, is affirmed in part and reversed in part where:  1) the district court did not err in denying plaintiffs' motion to dismiss the Ben Franklin Technology Center (BFTC) counts because a superseding indictment made out the necessary elements of honest services fraud; and 2) district court erred in denying the motion to dismiss the Navy counts as there are no allegations in the indictment suggesting the presence of legally cognizable fiduciary duties owed by BFTC to the Navy.     

Read US v. McGeehan, No. 05-1954

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. Criminal Nos. 03-cr-0125-1 & 03-cr-0125-2)  

District Judge: Honorable David Stewart Cercone

Opinion Filed October 22, 2009

Judges

Before:  Scirica, Chief Judge, and Rendell, and Smith, Circuit Judges

Opinion by Scirica, Chief Judge 

Counsel

Counsel for Appellant: John A. Knorr, Stephen H. Begler

 Counsel for Appellee:  Michael L. Ivory, Laura S. Irwin

In a case involving the founder of Adelphia and his son, denial of defendants' motion to dismiss conspiracy charges in a Pennsylvania indictment, claiming that their conviction for conspiracy and substantive fraud counts in the Southern District of New York violated their right to be free from double jeopardy, is remanded as 18 U.S.C section 371 creates a single statutory offense and defendants established a prima facie case that there was only one conspiratorial agreement.  However, denial of defendants' motion to dismiss tax evasion charges in the Pennsylvania Indictment is affirmed.  

Read US v. Rigas, No. 08-3218

On Appeal from the United States District Court for the Middle District of Pennsylvania

(No. 05-cr-00402)  

District Judge: Honorable John E. Jones III.

Opinion Filed October 21, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Fuentes, Circuit Judge 

Counsel

Counsel for Appellant:  Lawrence G. McMichael, Matthew P. Faranda-Diedrich, Patrick M. Northern, Joseph U. Metz, Dilworth Paxson

Counsel for Appellee:  George J. Rocktashel, Martin C. Carlson, Office of the United States Attorney, Lorna N. Graham, Office of the United States Attorney

District court's conviction of defendants for conspiracy to violate the Animal Enterprise Protection Act (AEPA), 18 U.S.C. section 43 (2002) and other crimes, arising from animal rights activists' claims of animal abuse committed by a research corporation located in the United Kingdom, is affirmed where: 1) defendants' convictions for conspiracy to violate the AEPA is affirmed as the AEPA is neither unconstitutional on its face nor unconstitutional as applied; 2) there was sufficient evidence to convict defendants on all charges involving interstate stalking, and 3) the judgment of the district court is affirmed in all other respects as there were no flaws in the jury instructions.  Finally, the case is remanded as the district court erred when it failed to devise a payment schedule for the $1,000,001 in restitution. 

Read US v. Fullmer, No. 06-4211

On Appeal from the United States District Court for the District of New Jersey

(D.C. Civ. No. 04-cr-00373)  

District Judge: Honorable Anne E. Thompson

Opinion Filed October 14, 2009

Judges

Before:  Fuentes and Fisher, Circuit Judges, and Ditter, District Judge

Opinion by Fuentes, Circuit Judge 

Counsel

Counsel for Appellant: H. Louis Sirkin, Sirkin Pinales & Schwartz LLP; Robert G. Stahl, Laura K. Gasiorowski, Stahl Farella & Sarokin; Peter Goldberger, Robert A. Obler, Paul J. Hetznecker, Andrew F. Erba, Williams Cuker & Berezofsky; Hal K. Haveson, Haveson & Otis.

Counsel for Appellee: Glenn J. Moramarco, George S. Leone,  Assistant United States Attorney

District court's sentence and conviction of defendants, for knowingly violating EPA work practice standards for the handling and disposal of regulated asbestos-containing material, subjecting them to criminal liability under the Clean Air Act, 42 U.S.C. section 7412 and 7413(c)(1), and knowingly and willfully making materially false, fictitious or fraudulent statements and representations in a matter within the jurisdiction of the executive branch of the United States by transmitting falsified air-monitoring reports to Virgin Islands Housing Authority (VIHA) in violation of 18 U.S.C. section 1001(a), is affirmed where: 1) evidence supports a finding that defendant was an operator of the project within the meaning of the Clean Air Act; 2) evidence is sufficient to establish falsity, federal-government jurisdiction, and necessary elements of a section 1001(a) violation; and 3) defendants' various challenges to the district court's determination of their respective sentences is rejected.   

Read US v. Starnes, No. 07-3341

Appellate Information

On Appeal from the District Court of the Virgin Islands, Division of St. Thomas  (D.C. Nos. 03-Cr-00020-2 and 03-cr-00020-1)  

District Judge: Honorable Raymond L. Finch

Opinion Filed September 24, 2009

Judges

Before: Fisher, Jordan, and Stapleton, Circuit Judges
Opinion by Fisher, Circuit Judge 

Counsel

Counsel for Appellant:  Todd G. Scher, Marc D. Seitles

Counsel for Appellee: Darren John-Baptiste, Charlotte Amalie, Anna T. Katselas

Denial of incarcerated appellant's motion to vacate an order of civil contempt that has been in effect for over five years, which stemmed from a criminal proceeding in which defendant was convicted of conspiracy and fraud and sentenced to 188 months' imprisonment, is affirmed where: 1) the court permissibly structured the order of contempt so that it tolled the commencement of appellant's criminal sentence, such that only if and when the contempt order is lifted will he begin serving that sentence; 2) an order of civil contempt will only become punitive if a contemnor is unable to comply with the order, or if the circumstances indicate that a court is maintaining the contempt for an impermissible punitive purpose; 3) in this case, appellant can comply with the order in question at any time and the order will be lifted. 

Read US v. Harris, No. 08-1553

Appellate Information

On Appeal from the United States District Court for the  District of New Jersey

(D.C. Crim. No. 03-Cr-00354-001)  

District Judge: Honorable Jerome B. Simandle

Opinion Filed September 23, 2009

Judges

Before: Barry, Smith, Circuit Judges, and DuBois, District Judge 
Opinion by Barry, Circuit Judge 

Counsel

Counsel for Appellant:  Edward F. Borden, Jr.

Counsel for Appellee: Norman Gross, George S. Leone