En Banc Court affirms sentence of probation in white-collar case

In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that
"[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007). The Court concluded that the sentencing court did not abuse its discretion in sentencing defendant to probation with a year of home detention, community service, restitution, and fine for tax evasion, rather than to term of imprisonment; although sentence was below sentencing guidelines range of 12 to 18 months, court explicitly examined statutory sentencing factors, and after hearing argument from government concerning need for term of imprisonment, court reiterated its reasons for imposing sentence without one, and gave specific reasons for variance from guidelines range, taking into account defendant's negligible criminal history, employment record, community ties, and extensive charitable works, while also factoring in his substantial wealth as a reason for imposing a fine far above guidelines range.

Third Circuit reverses, as greater than necessary, a 6-year below Guidelines sentence in child pornography case

Congratulations to AFPD Andrea Bergman and Research & Writing Attorney Tom Belksy for an amazing win in the Third Circuit! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence. The panel held that the district court erred in not granting a subpoena for Olhovsky’s treatment provider to testify, failed to consider mitigating evidence, and imposed a harsher than necessary sentence (even though the sentence was below-Guidelines). The Court was especially concerned about expressions by the sentencing court which made clear that the sentencing court was so offended "by the nature of Olhovsky's conduct that it sentenced the offense at the expense of determining an appropriate sentence for the offender ..." Olhovsky, 2009 WL 1014482 at *17.

This case is a great reminder to develop mitigating evidence early and really present your client as an individual at sentencing.

Defense-friendly Car Search Opinion Issued By Supreme Court

The Supreme Court issued an opinion on April 21, 2009 in Arizona v. Gant, 07-542, holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest . The Court's decision places a limit on the Belton rule, allowing search of passenger compartments, to situations where the interests of officer safety or preservation of evidence are present. In other words, if the defendant is secured in a patrol car already - no warrantless search!

Supreme Court rules that delay in bringing a suspect before magistrate can render voluntary confession inadmissable

In a 5-4 decision involving a bank robbery prosecution, the Supreme Court ruled, in Corley v. United States, 07-10441, that if federal agents wait too long to take a suspect before a magistrate judge to be formally advised of the charges against him, any confession made by the suspect, even if voluntarily made, is inadmissable. In general, production before a magistrate must come within six hours after arrest in order for the confession to be admissable.

In arriving at this result, Justice Souter opined: "In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to ... No one with any smattering of the history of 20th Century dictatorships needs a lecture on the subject…and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed."

Congratulations to David McColgin and Brett Sweitzer of the Philadelphia Community Defender's Office on this victory!

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The Staff of the Federal Public Defender's Office for the District of New Jersey.