Posted On: October 16, 2012

Unprovoked Flight, Without More, Cannot Elevate Reasonable Suspicion to Detain and Investigate into the Probable Cause Required for an Arrest

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), Defendant appealed the United States District Court for the District of New Jersey's denial of a motion to suppress weapons that police discovered in his home after a warrantless arrest. He argued that he was detained without reasonable suspicion or probable cause to arrest and that the weapons that were subsequently recovered from his apartment should therefore have been suppressed.

While performing surveillance, two undercover police officers observed Navedo’s co-defendant approach him carrying a bookbag. Co-defendant pulled what appeared to be a gun out of the bag. Defendant never touched or possessed the gun, he just leaned forward to see what was inside the bag. At that point the officers approached and identified themselves. Co-defendant threw the gun back into his bag and ran. Defendant also ran into his home and just as he had opened his apartment door, an officer tackled him and arrested him. Multiple weapons were found inside defendant's apartment.

The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the Defendant had looked at the gun a third party showed him, engaged in a brief conversation, and nothing more. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspicion to detain and investigate.

The Court held that unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. In this case, although the reasonable suspicions of the police had justified a brief investigative detention of co-defendant, they did not have a reasonable suspicion to detain defendant who merely looked at the gun that co-defendant was showing him and engaged in brief conversation. This was not a high crime area, and police had no reason to suspect that defendant was demonstrating anything other than curiosity at the sight of a gun. The police, therefore, had no reason to suspect that defendant was involved in criminal activity, and even if they had a suspicion, they were only entitled to detain and investigate, not arrest.

The case was remanded with instructions that the order denying defendant's motion to suppress be vacated.

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Posted On: October 11, 2012

Second Circuit Holds that Certain Acts Involving Children are not Relevant Conduct for Sentencing Purposes

In U.S. v. Wernick, No. 10-2974 (2d Cir. August 8, 2012), Defendant was convicted by jury in the United States District Court for the Eastern District of New York on five counts of receiving and distributing child pornography, reproducing child pornography for distribution by computer, possessing materials containing images of child pornography, and persuading, inducing, and enticing minors to engage in sexual activity.

From chat records on Wernick’s computer, the Government introduced evidence showing that on several occasions, Wernick chatted with minor male teenagers online and proposed meeting for sex. At trial, the government was able to prove two episodes, one in which Wernick met a male 14-year-old online and eventually persuaded him to meet in person several times to engage in oral and anal sex, and another involving a male 16-year-old. Additionally, at sentencing, prosecutors proved instances of Wernick's sexual conduct with two male 15-year-olds and attempted sexual conduct with respect to another male teenager.

Defendant argued the district court erred by considering some of that sexual conduct directed at young children, not charged in the indictment or proven at trial, as relevant conduct that increased his U.S. Sentencing Guidelines Manual offense level. The Appellate Court agreed, stating, “We agree with Wernick that the offenses against the young children are not relevant conduct because these offenses did not "occur[] during the commission of" or "in preparation for" the crimes against the teenagers in the sense contemplated by the Guidelines.” Wernick at 14.

The Appellate court did not suggest the sexual exploitation of young children was not relevant in the ordinary sense to the district court's consideration of an appropriate sentence for offenses involving illegal sexual enticement of older minors and redistribution of child pornography. It noted that the conduct in question could and undoubtedly would, be properly considered on remand in assessing the factors relevant to sentencing under 18 U.S.C.S. § 3553(a).

The sentence was vacated and the case was remanded for resentencing.

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Posted On: October 8, 2012

Third Circuit Holds that Trial Judge Should Have Reviewed Video Evidence in Child Pornography Case Before Allowing Submission of the Tapes to the Jury

In U.S. v. David L. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012), Defendant Cunningham was charged with receiving, possessing, and distributing child pornography. After a jury trial, Cunningham was sentenced to 210 months in prison and 20 years of supervised release for the receipt and distribution of child pornography. Before the jury trial, Cunningham attempted to prevent certain, graphic video evidence from being shown to the jury on multiple occasions, but the district court denied each of his requests. At trial, the District Court allowed the government, over Cunningham's objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.

Cunningham argued that those "images not only reveal children engaging in sexually explicit conduct; they are obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage." Cunningham at 9. Cunningham objected to the government's video excerpts and proposed that, if the Court was going to allow the government to introduce those exhibits, they should be limited in four ways: (1) only still images of any video should be shown; (2) no images, whether still or part of a video, should display bondage or actual violence, including the penetration of prepubescent children by adults; (3) no audio should accompany any of the video; and (4) the faces of any minors should be obscured from all images. The District Court ruled against him.

Cunningham appealed his sentence, arguing that the District Court permitted the government to show graphic video evidence without first viewing the videos, and failed to exclude or limit the video clips. The Third Circuit agreed with Cunningham and found that the District Court abused its discretion when it did not view the graphic videos before admitting them as evidence and when it failed to exclude or limit video clips. The Court noted that, “The probative value of each clip was reduced by the existence of the clips before it. Once one video excerpt from each of the two videos was shown, the fact being proven — i.e., that the person distributing, receiving, and possessing that pornography would know that it contained images of real minors engaging in sexually explicit activity — may well have been established. As a result, after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge of distribution, receipt, and possession had already been established in some degree by the prior video excerpts.” Id. at 45-46.

The Third Circuit vacated the District Court’s ruling and remanded the case for a new trial.

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