Posted On: April 27, 2012

Third Circuit Rules that Federal Sentencing Enhancement for Possessing a Firearm While Committing A Felony Applies – Even When the Felony is the Burglary of the Same Firearm

In United States v. Keller, 666 F.3d 103 (3d Cir. 2011), the prosecution appealed a decision of the United States District Court for the Western District of Pennsylvania, which found that a sentencing enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) did not apply to defendant's conduct. This enhancement increases a defendant's offense level by four points when he "used or possessed any firearm or ammunition in connection with another felony offense."

In 2007, Defendant Jason Keller and two others burglarized a gun shop in Western Pennsylvania. Keller and his co-conspirators drove a vehicle through the front doors of Fazi's Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to "Adrian" in Maryland for $2,000.

A grand jury of the United States District Court for the Western District of Pennsylvania indicted Keller for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u). The Government subsequently filed an information against Keller, charging him with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Keller pleaded guilty to all three offenses.

The probation office which prepared Keller’s presentence investigation report concluded that his burglary was "another felony offense" justifying application of the enhancement under § 2K2.1(b)(6), which, inter alia, had to be applied if the defendant used or possessed any firearm or ammunition in connection with another felony offense. The district court held that the enhancement did not apply. On appeal, the United States Court of Appeals for the Third Circuit held that Amendment 691 to the Sentencing Guidelines, U.S. Sentencing Guidelines Manual app. C, amend. 691, essentially overruled its precedents holding that § 2K2.1(b)(6) did not apply when the predicate offense was burglary of the firearms that were the subject of the conviction.

The court vacated the judgment and remanded so the district court could recalculate defendant's guidelines range by applying the four-point enhancement in § 2K2.1(b)(6) before considering the 18 U.S.C.S. § 3553(a) factors and imposing a new judgment of sentence.

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Posted On: April 26, 2012

Employee Who Used Work Computers to Steal Trade Secrets Secures Dismissal of Charges

In United States v. Nosal, No. 10-10038, 2012 U.S. App. LEXIS 7151, the United States Court of Appeals for the Ninth Circuit held that theft of trade secrets by an employee using his work computer did not qualify as a federal crime under the statute used to charge him. The Court upheld the ruling of the United States District Court for the Northern District of California, which dismissed five counts of an indictment against defendant for failure to state an offense pursuant to the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.S. § 1030.

Defendant David Nosal used to work for Korn/Ferry, an executive search firm. Shortly after he left the company, he convinced some of his former colleagues who were still working for Korn/Ferry to help him start a competing business. The employees used their log-in credentials to download source lists, names and contact information from a confidential database on the company's computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/Ferry had a policy that forbade disclosing confidential information. The government indicted Nosal on twenty counts, including trade secret theft, mail fraud, conspiracy and violations of the CFAA. The CFAA counts charged Nosal with violations of 18 U.S.C. § 1030(a)(4), for aiding and abetting the Korn/Ferry employees in "exceed[ing their] authorized access" with intent to defraud. Nosal filed a motion to dismiss the CFAA counts, arguing that the statute targets only hackers, not individuals who access a computer with authorization but then misuse information they obtain by means of such access.

The district court granted the defense motion to dismiss these charges, and the Court of Appeals for the Ninth Circuit upheld that ruling. Chief Judge Alex Kosinski noted that the phrase “exceeds authorized access” in the CFAA does not extend to violation of use restrictions. The Court further held that the CFAA was a statute meant to punish hacking – the circumvention of technological access barriers – not misappropriation of trade secrets. Finally, the Court stated that if there was any doubt about whether Congress intended the CFAA to prohibit the conduct in which defendant engaged, then the court had to choose the interpretation least likely to impose penalties unintended by Congress.

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Posted On: April 18, 2012

5th Circuit Holds that a Defendant’s Confession to Harboring Illegal Aliens Can Be Suppressed Where ICE Agents Violated the Fourth Amendment

In United States v. Hernandez, 670 F.3d 616 (Ct. App. 5th 2012), The United States Court of Appeals for the Fifth Circuit found error in the denial of a Defendant’s motion to suppress her post-Miranda statements as fruit of the poisonous tree. The Court reversed the denial of defendant's suppression motion, vacated the conviction and sentence, and remanded.

In Hernandez, law enforcement officers received an anonymous tip that ten to fifteen illegal aliens were being held against their will in Defendant Melinda Hernandez's trailer. The officers, including Immigration and Customs Enforcement ("ICE") agents, went to Hernandez's trailer around midnight to investigate. After announcing themselves and receiving no response, the officers banged on the doors and windows, shouting that they were police and that the occupants should open the door. The officers then heard movement within the trailer. They tried to open the front door, but the outer screen door was locked. After one of the officers broke the glass pane of the screen door with a baton, Hernandez screamed that she was coming to open the door. When Hernandez opened the door, she noticed that the officers had their weapons drawn.

The officers searched the trailer and found two illegal aliens, Luis Alberto Andrade-Quesada and his nephew, Jose Moises Regalado-Soto, in the trailer. Hernandez, Andrade-Quesada, Regalado-Soto, and Hernandez's boyfriend, Sergio Guadalupe Ayala, who was also in the trailer at the time, were taken to the ICE office for questioning. Hernandez and Ayala waived their Miranda rights and admitted that Andrade-Quesada and Regalado-Soto stayed in the trailer and that they knew that the two men were illegal aliens. Andrade-Quesada also made a statement indicating that he had agreed to pay Hernandez $150 per month so that he and his nephew could stay with her.

Hernandez was charged with harboring an illegal alien for financial gain. She argued that the post-Miranda statements that she, Ayala, and the illegal alien made at the ICE office constituted fruits of the poisonous tree and should be excluded. She also argued that her doorstep admission that she had at least one illegal alien in her home, which the Government asserted gave authorities probable cause to arrest her, was obtained by exploiting the illegal entry into her home. The district court denied Hernandez’ motion to suppress the statements.

The appellate court disagreed, holding that suppression of Hernandez’ post-arrest confession was warranted under the “fruits of the poisonous tree doctrine” because (1) her doorstep admission was tainted by the agents' Fourth Amendment violation since she was illegally "seized" without probable cause before the admission due to the agents' actions, and the fact that an agent informed her about the anonymous tip after or during the course of the violation was not an "intervening event of significance," and (2) factors weighed heavily in her favor since there was no indication that more than a few hours passed between the violation and the statements, there were no intervening circumstances, and the agents' conduct was egregious.

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Posted On: April 17, 2012

Supreme Court Approves Strip Searches, Even For Minor Offenses

The Supreme Court of the United States recently held, in a 5-4 decision, that officials may strip-search people arrested for any offense, no matter how minor, before admitting them to jails - even if the officials have no reason to suspect the presence of contraband.

In Florence v. Board of Chosen Freeholders, Petitioner Albert W. Florence was arrested during a traffic stop by a New Jersey state trooper. The trooper checked a statewide computer database and found a bench warrant issued for petitioner's arrest after he failed to appear at a hearing to enforce a fine. Petitioner was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid.

At the Burlington County jail, Florence, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. He also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, Florence again had to remove his clothing while an officer looked for body markings, wounds, and contraband. He was also required to lift his genitals, turn around, and cough while squatting.

Florence filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that "strip-searching" nonindictable offenders without reasonable suspicion violates the Fourth Amendment. The Third Circuit reversed.

The Supreme Court agreed with the Third Circuit, holding that deference had to be given to jail officials unless substantial evidence showed their response to the situation was exaggerated. The Court felt that concerns about gang members provided a reasonable basis to justify a visual inspection for signs of gang affiliation during intake. The Court also highlighted the importance of detecting contraband concealed by new detainees. Ultimately, the Court found that the search procedures to which Florence was subjected struck a reasonable balance between inmate privacy and the jail's needs.

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Posted On: April 16, 2012

Third Circuit Court of Appeals Rules That Second Amendment Protections Are Limited for Gun Owners Who Live With Convicted Felons

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happened to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession of a firearm.

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment did not shield Huet from being charged with aiding and abetting a felon to possess a firearm, as Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon.

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Posted On: April 13, 2012

Arkansas Supreme Court OK’s Sex Between Teachers and 18-Year Old Students

The Supreme Court of Arkansas recently held that the State could not criminalize sex between consenting adults, even if one is a teacher and the other an 18-year old student.

Paschal v. State of Arkansas, 2012 Ark. 127, evolved from the conviction of Defendant David Paschal, a high school History and Psychology teacher who engaged in a consensual sexual relationship with an 18-year-old student over a five-month period. Paschal was initially convicted and sentenced to 30 years in prison.

On appeal, the state Supreme Court held, however, that Ark. Code Ann. § 5-14-125(a)(6) Supp. 2009), as applied to a high school teacher who engaged in a consensual sexual relationship with an 18-year-old student, who was an adult under Ark. Code Ann. § 9-25-101(a) (Repl. 2009), infringed on the teacher's fundamental right to privacy and was not the least restrictive method available for the promotion of the State's interest; therefore, it was unconstitutional.

“Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts,” the Court wrote in the majority opinion.

The court reversed and dismissed the convictions for sexual assault in the second degree.

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