Federal Public Defender's Office - New Jersey

47 year prison terms affirmed for brothers convicted of Hobbs Act robbery of local drug dealer

2011-09-22T10:16:00.004-04:00

Brothers Barron and Barry Walker were convicted after trial of various offenses including drug trafficking, firearm and robbery charges. Each was sentenced to a prison term of 47 1/2 years. On appeal, the brothers challenged their convictions and sentences on multiple grounds, including improper joinder, sufficiency of the evidence, improper expert testimony, and an alleged Brady violation. The Third Circuit, in United States v. Walker, 10-3090 (3d Cir. Sept. 13, 2011), quickly disposed of the severance claims, holding that joinder of all counts against both brothers was proper, despite the inclusion of two escape-related charges solely against Barry Walker, where the escape charges arose directly from the earlier drug, conspiracy and gun charges against both brothers. Nor, according to the Third Circuit, did the district court abuse its discretion in declining to grant Barron Walker's motion to sever his trial from his brother's trial where the issues were uncomplicated, the trial lasted only four days, included only two defendants and encompassed only three distinct episodes of criminal conduct.

With regard to the sufficiency of the evidence on the 18 U.S.C. § 924(c) charge (use of a firearm in furtherance of drug distribution), the Court found that the testimony of the confidential informant and a cooperating co-defendant, while not overwhelming, was sufficient to sustain the convictions. The witnesses testified that they observed Barron and Barry Walker arrive together in the same vehicle, that Barron had cocaine in his possession, and that Barron and Barry jointly made a cocaine sale while Barry wore a gun on his hip.

Next, the Court addressed the brothers' challenge to the government's expert on cocaine trafficking. In order to support the interstate commerce element of the Hobbs Act robbery charge, the government's expert, a 30 year law enforcement officer and narcotics investigator, testified that cocaine is manufactured outside of Pennsylvania and transported into the State. The Walkers' argued that the expert's testimony was unreliable because they could have possessed synthetic cocaine and the expert was unable to distinguish between synthetic and plant-based cocaine. The Third Circuit rejected this argument and agreed with the district court's conclusion that the expert's method for reaching his conclusions was reliable. It found that the expert's opinions were based on his personal experiences interacting with drug traffickers and law enforcement personnel over 30 years. Accordingly, the Court concluded that the expert's testimony was properly admitted.

With regard to the sufficiency of the evidence on the Hobbs Act robbery charge, the Third Circuit held "that by presenting evidence that (1) the Walkers attempted to rob a cocaine dealer of a de minimis amount of drugs and cash, and (2) the drug dealer's cocaine originated outside of Pennsylvania, the government presented sufficient evidence" to satisfy the interstate commerce element of the Hobbs Act. The Court acknowledged that the use of the Hobbs Act to prosecute "what could be considered a fairly garden-variety robbery gives us some pause," especially in light of the extremely harsh sentences that resulted. Nevertheless, the Court "trust[s] and expect[s]" that federal prosecutors will exercise their broad prosecutorial discretion "to make the most effective use of federal resources, to avoid supplanting the state criminal systems that quite ably address classic state-law crimes, and to seek just and appropriate criminal sentences in the course of their representation of the United States."

Finally, the Third Circuit addressed the defendants' claim that the government withheld exculpatory evidence material to their defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court found that the government' s failure to disclose information regarding an incident where their confidential informant was found to be in possession of 0.18 grams of crack cocaine was not material to the instant prosecution where the CI was not the only witness against the defendants and had already been thoroughly impeached by the defense team.

For the foregoing reasons, the Third Circuit affirmed the convictions and sentences of both Barron and Barry Walker.

New Standing Order regarding return of passports

2011-01-31T15:34:00.004-05:00

The District Court for the District of New Jersey recently adopted a Standing Order regarding the disposition of passports surrendered to Pretrial Services while a defendant is on pretrial release. The goal of the Standing Order is to obviate the need for motions by defense counsel or defendants themselves in order to effectuate the return of travel documents. The Standing Order covers the return of both United States passports and foreign travel documents to United States citizens and non-citizens upon dismissal, acquittal, and the imposition of various length sentences.

Fair Sentencing Act of 2010 - Emergency Amendments

2010-10-18T12:25:00.003-04:00

On Friday, October 15, 2010, the United States Sentencing Commission promulgated temporary emergency amendments, effective Nov, 1, 2010, which implement the directives in the Fair Sentencing Act of 2010 (FSA). A reader-friendly version of the amendments can be found here. Public comment on the proposed amendments by the Federal and Community Defender community, which may be helpful in deconstructing the amendments, can be found here.

The temporary emergency amendments deals not only addresses changes in base offense levels based on the new crack/powder ratio of 18:1, but also addresses the elimination of the mandatory minimum for simple possession of crack and adds several adjustments for all drug types. Among those adjustments are various enhancements for use of violence or threatened use of violence during the commission of a drug offense, bribery or attempted bribery of a law enforcement officer to facilitate the commission of the offense, maintaining a premise for the purpose of manufacturing or distributing a controlled substance and super-aggravating role. Finally, the amendments cap a defendant's base offense level at 32 if he receives a minimal role adjustment and provide for a two level reduction for defendants who receive minimal role and who were "unwitting dupes" in the offense (i.e., minimum knowledge of scope and structure of enterprise, no monetary compensation, motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit the offense).

A Practice Kit for obtaining pretrial release of non-citizen clients

2010-04-15T15:33:00.002-04:00

The Federal Defenders of Eastern Washington and Idaho put together this handy kit of information for lawyers seeking bail for their non-citizen clients with ICE detainers:

http://www.fdewi.org/wordpress/?p=1001

Sentencing Commission Proposes Cultural Assimilation Departure for U.S.S.G. §2L1.2 cases

2010-04-15T15:29:00.002-04:00

On April 13, the USSC unanimously voted in favor of an amendment permitting a downward departure in illegal reentry cases under U.S.S.G. §2L1.2 in cases where the defendant has established cultural ties to the United States from childhood and those ties provided the primary motivation for the reentry or continued presence in the United States. The proposed new amendment is at application note 8 to §2L1.2. Barring any action from Congress, the amendment will take effect November 1, 2010.

USSC votes to eliminate U.S.S.G. Section 4A1.1(e) from Guidelines

2010-04-14T11:05:00.002-04:00

On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting U.S.S.G. §4A1.1(e) (adding 2 criminal history points when the instant offense was committed within two years of release from prison). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf.

The recency amendment will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

New resource available for tracing history of Guidelines provisions

2010-04-14T10:51:00.002-04:00

Thanks to the National Sentencing Resource Counsel, you can now trace the history of any policy decision or guideline amendment promulgated by the United States Sentencing Commission by reviewing documents and materials from the public record of the United States Sentencing Commission that are not currently available on its website and are otherwise difficult to obtain. These include public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports. The website address is www.src-project.org.

Supreme Court holds that defense counsel must inform client whether plea carries a risk of deporation

2010-04-14T10:44:00.004-04:00

In Padilla v Kentucky, __ S. Ct. __, 2010 WL 1222274 (Mar. 31, 2010), a five-justice majority held that because "negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel," and because deportation is virtually mandatory and inevitable for a vast number of noncitizens convicted of crimes and is "an integral part-indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes," ... "counsel must inform her client whether his plea carries a risk of deportation."

So, what advice is required?

"[W]hen the deportation consequence is truly clear, as it was in this case [drug offenses except for the most insignificant marijuana offenses are deportable, 8 U.S.C. § 1227(a)(2)(B)(i)], the duty to give correct advice [i.e., you will be subject to deportation if you plead guilty to this charge] is equally clear." But "[w]hen the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito in the opinion), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."

In the wake of Padilla, the Immigrant Defense Project has issued the following practice advisory which provides information and strategies for dealing with the implications of Padilla:

DUTY OF CRIMINAL DEFENSE COUNSEL REPRESENTING
AN IMMIGRANT DEFENDANT AFTER PADILLA V. KENTUCKY

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

2009-04-22T11:40:00.003-04:00

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

2009-04-22T11:19:00.002-04:00

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

2009-04-22T11:15:00.002-04:00

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

2009-04-07T12:26:00.005-04:00

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!

Welcome!

2009-03-12T22:46:00.003-04:00

Welcome to our blog. Our plan is to highlight new developments, provide urgent updates and digest recent cases on this blog before archiving them to our website. We believe this format is more user-friendly and that it will allow us to get information to federal criminal defense attorneys in our District in a more timely fashion.

We appreciate your patience as we work to populate our blog and welcome your feedback on our new format.

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