Held: Under U.S.S.G. §6A1.3, sentencing court could consider unsworn statements in police report in imposing increased sentence based on determinations that defendant who pled guilty to being a felon in possession of a firearm also shot at police officers and attempted to kill his estranged wife; detail and internal consistency of the transcribed interviews with the officers regarding the fact of the shooting, together with the other corroborating material, including wife's testimony, provided sufficient indicia of the reliability of the officers' version of events recounted in the report.

Link to case: http://vls.law.villanova.edu/locator/3d/June2007/051658p.pdf

United States v. Rivas, 493 F.3d 131 (3d Cir. 2007) (en banc)

Held: (1) Prosecutor's opening statement describing confidential informant's decision to cooperate with law enforcement and suggesting that one of informant's motives was to give law enforcement an accurate picture of what was going on with drug sales in the streets, was not improper vouching, in prosecution for conspiracy to distribute crack cocaine; there was no suggestion that the police cooperated only with honest witnesses, or that the prosecution could assure the jury that informant's testimony would be accurate.

(2) Prosecutor's comment during closing arguments that defense counsel's "job is to take your focus off the issue" did not amount to prosecutorial misconduct, in prosecution for conspiracy to distribute crack cocaine; comment was a fair attack on defense counsel's argument and strategy, which did attempt to refocus jury's attention on credibility of government witnesses, and prosecutor did not refer to any evidence outside the record.

(3) Information charging defendant with a prior drug felony conviction was properly "filed," within meaning of 21 U.S.C. § 851, in prosecution for conspiracy to distribute crack cocaine, notwithstanding information's failure to comply with local district court rule regarding electronic filing, where clerk of court accepted the information as filed, district judge indicated he was not concerned with the noncompliance, and prosecutor complied with electronic signing requirement.

Link to case: http://vls.law.villanova.edu/locator/3d/June2007/053380pa.pdf

Held: (1) To qualify as "agent," under 18 U.S.C. § 666 (prohibiting theft from program receiving federal funds by agent of the program), person was not required to have control over the federal funds so that independent contractors hired by regional airport authority as engineers and consultants were not excluded from the definition of "agent."

(2) Prosecutor improperly vouched for credibility of FBI agent's testimony that defendant gave a confession during agent's interrogation, in prosecution for theft from program receiving federal funds by agent of program, by advising the jury that prosecutor and his co-counsel were present during the interview.

(3) Restitution in the amount of $317,760 was warranted for defendants convicted of theft from program receiving federal funds by agent of program, in connection with independent contractors' scheme to overbill regional airport authority for engineering and construction services; government presented extensive evidence, including phony time cards and inflated bills, which showed overbilling of over 4262 hours, and a corresponding dollar loss of $317,760.

Link to case: http://vls.law.villanova.edu/locator/3d/June2007/054330p.pdf

Held: (1) Special condition of supervised release that imposed upon defendant who pleaded guilty to possessing child pornography an absolute lifetime ban on using computers and computer equipment, as well as accessing the internet, with no exception for employment or education, was not narrowly tailored to impose no greater restriction on defendant's liberty than reasonably necessary, as required by statute, even if ban was imposed because computers and internet were inextricably involved in defendant's criminal conduct.

(2) Lifetime ban on possession of sexually explicit materials imposed as special condition of supervised release on defendant who pleaded guilty to possessing child pornography lacked requisite nexus with goals of supervised release, inasmuch as nothing in the record indicated that sexually explicit material involving only adults contributed to defendant's offense or gave cause to believe that viewing such material would cause defendant to reoffend.

(3) Special condition of supervised release that imposed upon defendant who pleaded guilty to possessing child pornography a lifetime ban on possession of sexually explicit materials encompassed both legal adult pornography as well as illegal child pornography, and thus was not narrowly tailored to impose no greater restriction on defendant's liberty than reasonably necessary, as required by statute.

(4) Special condition of supervised release that imposed upon defendant who pleaded guilty to possessing child pornography a lifetime prohibition against associating with minors without prior approval of probation officer and mandated that any such contact be in presence of adult familiar with defendant's criminal background failed to clarify whether condition extended to defendant's own children and to provide sufficient guidance for probation officer's exercise of discretion, warranting vacating of such condition and remand for resentencing.

Link to case: http://vls.law.villanova.edu/locator/3d/June2007/052858p.pdf

Filed May 8, 2007

Held:

(1) Sentence of five years’ probation and 12 months’ home confinement in trademark counterfeiting and copyright infringement case, where district court granted variance from advisory range of 18-24 months, was unreasonable because district court did not give "meaningful consideration" to the § 3553(a) factors and was "insufficiently unresponsive" to government’s objections raised at sentencing regarding Kononchuk’s alien status, the unfairness of allowing him to avoid incarceration because of his ability to pay restitution, and dissimilarity with co-defendant who received five years’ probation.

Sentence VACATED and case REMANDED for re-sentencing.

Link to case: http://vls.law.villanova.edu/locator/3d/May2007/062484p.pdf

Filed May 17, 2007

Held:

(1) Prosecutor’s closing comments at trial regarding judges making mistakes and that "that’s why we have courts of appeals" inappropriately misstated the jury’s role and constituted misconduct as it tended to influence the jury to believe that their responsibility for determining the outcome of trial could be shifted to an appellate court, but such comments were harmless;

(2) "Invited response" doctrine, which protects comments made in "reasonable response to improper attacks by defense counsel," was inapplicable, as defense counsel’s comments did not constitute an attack on prosecutor’s case;

(3) Use of 2004 Guidelines that resulted in 6-level enhancement for "official victim" under U.S.S.G. § 3A1.2 constituted plain error because enhancement became effective after date of offense, and Wood would have been subject to a 3-level enhancement under the pre-amended guideline that existed at time of his offense.

Judgment of conviction AFFIRMED, sentence VACATED, and case REMANDED for re-sentencing.

Link to case: http://www.ca3.uscourts.gov/opinarch/061372p.pdf

Filed May 10, 2007

Held:

(1) District court’s order granting habeas corpus petition under §2254 and staying writ for 180 days to allow Pennsylvania to vacate two counts under Pennsylvania Corrupt Organizations Act ("PACOA"), where petitioner was actually innocent of some but not all of the counts to which he pled guilty, was proper as it left precise remedy in state’s hands;

(2) Petitioner’s guilty plea did not constitute a due process violation and rescission of entire plea agreement was not required, where mistake regarding PACOA was one of law and did not have "material effect" on plea agreement, the heart of which was not the PACOA counts, but rather, the drug trafficking counts with which he was charged.

Order of district court AFFIRMED.

Link to case: http://www.ca3.uscourts.gov/opinarch/052492p.pdf

Filed May 4, 2007

Held:

(1) District court did not err in finding that Ellison’s ineffective assistance of counsel and due process claims were unexhausted at state level;

(2) District court’s denial of petitioner’s request for stay and abeyance while he exhausted state court remedies was proper because he failed to present good cause for his failure to exhaust the claims first in state court.

Judgment AFFIRMED.

Link to case: http://vls.law.villanova.edu/locator/3d/May2007/042314p.pdf