Conviction for Threatening Facebook Comments Reinstated

After a conviction for threatening statements was overturned by the Supreme Court, the circuit court ruled that the failure to instruct the jury on the proper mental state element of the crime was merely a harmless error

 United States v. Elonis, 3d Cir., No. 12-3798, 10/28/16.

The Third Circuit reinstated the conviction of a man who posted threatening messages on Facebook, finding that the lack of instruction regarding intent in the jury instructions was a harmless error. A year before, the Supreme Court overturned the conviction due to the objective standard used to convict the defendant, which was the improper standard. The Court, in their reading of the statute, found that a subjective intent on part of the defendant must be established to meet the mental state element of the crime. On reversal, the Third Circuit found that the incorrect jury instructions regarding the defendant’s intent were ultimately a harmless error, not requiring reversal. The court pointed to the amount of evidence showing that the defendant knew his statements were directly terrifying specific individuals. The opinion stated, “The record contains overwhelming evidence demonstrating beyond a reasonable doubt that [the defendant] knew the threatening nature of his communications, and therefore would have been convicted absent the error.”

The Third Circuit, however, did not address whether a “recklessness” standard should be used to convict the defendant. The Supreme Court, in its decision, did not fully address the issue, although it was suggested in a concurring opinion. Rather than making a finding on the standard, the Third Circuit relied on its harmless error reasoning.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Elonis_No_123798_2016_BL_359855_3d_Cir_Oct_28_201?1478712044

Restrictions Attached to Bond Considered “Continuing Seizure”

A woman is allowed to pursue a malicious prosecution claim for her bond restrictions after being required to travel monthly to every pre-trial meeting because it was “continuing seizure”

Black v. Montgomery County, 2016 BL 282138, 3d Cir., No. 15-3399, 8/30/16.

   The Third Circuit held that a woman was under a constitutionally significant restraint because of her bond requirement that she attend every pre-trial hearing, even though she lived across the country. The woman was out on a $50,000 bail but was required to fly monthly to attend every court proceeding for a year or face having her bond forfeited in its entirety. The court found that this constituted a seizure. The court based their decision on a plurality concurrence in Albright v. Oliver, which opined that the requirement for a defendant to appear in court for various reasons could constitute a seizure if there were “constitutionally significant restraints.”

http://www.bloomberglaw.com/public/document/Black_v_Montgomery_County_No_153399_2016_BL_282138_3d_Cir_Aug_30_.

Equal Justice Protection Threatened by Bail Policies

A circuit court has held that keeping low-risk defendants in jail that are unable to pay bail until trial “has become a threat to equal justice under the law”

Curry v. Yachera, 2016 BL 286194, 3d Cir., No. 15-1692, 9/1/16.

   The Third Circuit held that a no contest plea given by a defendant held in jail bars him from seeking a claim for malicious prosecution. The dismissal, however, noted that holding low-risk defenders in jail until their court date threatened equal justice. The defendant was arrested after falsely returning $130 of items to Wal-Mart, later being held in jail for two months because he could not make the $20,000 bail that was set. The defendant then made his no contest plea, which released him from jail but only after losing his job and missing the birth of his first child.

   The court affirmed the district court’s dismissal with a modification, but it went further and espoused hope that bail reform would be forthcoming. The court stated, “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail…Further, those unable to pay who remain in jail may not have the ‘luxury' of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”


http://www.bloomberglaw.com/public/document/Curry_v_Yachera_No_151692_2016_BL_286194_3d_Cir_Sept_01_2016_Cour.

Conversations from Facebook Admissible in Child Pornography Case

“Facebook Chat” messages are admissible in court when they are properly authenticated using extrinsic evidence

United States v. Browne, 2016 BL 276680, 3d Cir., No. 14-1798, 8/25/16.

   The Third Circuit held that messages from “Facebook Chat” are admissible in court when they are authenticated using extrinsic evidence. The government at trial argued that the evidence was self-authenticating under the “business records” rule under the Federal Rules of Evidence 902(11). Although the messages were later certified by a “Facebook records custodian,” the business records exception could not apply because Facebook did not “purport to verify or rely on the substantive contents of the communications in the course of its business.” Instead, the records expert could only testify to the accuracy of the Facebook accounts at a particular time, not to the content of the messages.

   Although the business records exception did not apply, extrinsic evidence presented in court was “more than sufficient extrinsic evidence to link” the defendant to the explicit messages.

http://www.bloomberglaw.com/public/document/United_States_v_Browne_No_141798_2016_BL_276680_3d_Cir_Aug_25_201.

Defendant Cannot Attack State Sentence in Appealing his Federal Sentence

A defendant cannot appeal his federal sentence by attacking the validity of his initial state sentence by arguing that the federal sentence is unconstitutional because it runs consecutively to his state sentence.

United States v. Napolitan, 2016 BL 230906, 3d Cir., No. 15-1602, 7/19/16.

   A Third Circuit court ruled that a defendant cannot challenge his federal sentence by attacking the state sentence he had already received. This decision continues and expands upon the line of cases stemming from Custis v. United States, which prevents federal defendants from mounting attacks against past convictions that were used as prior convictions for sentencing enhancement. In this case, the defendant argued that his federal sentence was unconstitutional because it ran consecutively to his state sentence, which he contended was invalid. The court ruled that “Drawing on both the logic and language of Custis, we see no reason why state sentences should not be accorded the same respect and be subject to the same forms of substantive review afforded to state convictions.” The court then joined the Ninth, Sixth, and Second circuits and extended Custis to prevent attacks on prior convictions.

http://www.bloomberglaw.com/public/document/United_States_v_Napolitan_No_151602_2016_BL_230906_3d_Cir_July_19.

Class Action by Prisoners Continues, Even as Representative Prisoner is Relocated

A class action suit brought by prisoners can still stand, even if the representative prisoner is relocated because of the susceptibility of mootness for an individual claim in this case

Richarson v. Dir. Fed. Bureau of Prisons, 2106 BL 227670, 3d Cir., No. 15-2876, 7/15/16.

   The Third Circuit held that a class action suit by prisoners is still certified, even if the representative prisoner is relocated from the prison during the action. The court stated, “When individual claims for relief are acutely susceptible to mootness, a would-be class representative may, in some circumstances, continue to see class certification after losing his personal stake in the case.”

   In making this decision, the court relied on precedent from Weiss v. Regal Collections, 385 P.3d 337  (3d Cir. 2004), which provides that a claim for relief which is “susceptible to mootness” by the defending party can still stand if the representative class member has their own claim mooted.  The court found that this precedent withstood the test established by the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez, which held that “a “class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” In the case, however, the relevant corollary was that when a class action representative is denied a fair opportunity “[he] should be permitted to continue seeking class certification for some period of time after [his] claim has become moot.”   



http://www.bloomberglaw.com/public/document/Richardson_v_Fed_Bureau_of_Prisons_No_152876_2016_BL_227670_3d_Ci.

No Penalty Conviction Still Triggers Deportation Proceedings

A drug conspiracy conviction that includes a sentence without jail time, probation, or any other penalty, can still trigger deportation proceedings under the Immigration and Nationality Act

Frias-Camilo v. Att'y Gen., 2016 BL 201232, 3d Cir., No. 15-3733, 6/23/16.

   AThird Circuit court found that a guilty conviction, even those without an actual sentence or restraint on personal liberty, still can trigger deportation proceedings. The defendant pled guilty in his criminal trial, was convicted, and then was given a “guilty without further penalty” sentence. He argued that without an actual sentence, his conviction did not fit into the federal sentencing statutes that would establish any guilt allowing for deportation.

   The court rejected the defendant’s arguments, noting that the Immigration and Nationality Act does not place a punishment or sentencing component in the act’s definition of “conviction.” The court further argued that although there is no sentencing option for a “guilty without further penalty” in federal statute, the state statute clearly provides for this type of sentencing, which would trigger deportation. “We do not hesitate to conclude that a sentence of ‘guilty without further penalty’ is a ‘sentence’ for purposes of the INA.”

http://www.bloomberglaw.com/public/document/FriasCamilo_v_Atty_Gen_No_153733_2016_BL_201232_3d_Cir_June_23_20.

Pornography Regulations Regarding Minors Subject to Strict Scrutiny

Recordkeeping regulations on adult film producers aimed at preventing child pornography are subject to the First Amendment, requiring their reviewing standard to be strict scrutiny

Free Speech Coal., Inc. v. Att'y Gen., 2016 BL 182465, 3d Cir., No. 13-3681, 6/8/16.

   The Third Circuit found that regulations aimed at preventing child pornography levied on adult film producers require strict scrutiny to analyze their constitutionality. On remand, the district court must determine whether the regulations are narrowly tailored to further a compelling state interest.

    Originally, these regulations were upheld by the circuit court using intermediate scrutiny as the standard they applied. The reviewing standard changed, however, after the Supreme Court’s decision in Reed and City of Los Angeles v. Patel, which required that strict scrutiny be used on similar regulations because they were “content based” and not content-neutral. 

http://www.bloomberglaw.com/public/document/Free_Speech_Coalition_Inc_v_Atty_Gen_No_133681_2016_BL_182465_3d_.