Notice of Appeal

Summer 2018

Precedential Opinions of Note

Third Circuit Rules That 42 U.S.C. § 1572(d) Does Not Protect Misuse of Funds

United States v. James (April 23, 2018), No. 17-2536

Unanimous decision: Smith (writing), McKee, Scirica


Defendant, a former Virgin Islands senator, was indicted on two counts of wire fraud and one count of embezzlement from a federal program.  The indictment charged that Defendant misused legislative funds in multiple ways, including double-billing for expenses and submitting fraudulent invoices. 


Defendant’s alleged conduct is not protected legislative conduct under 42 U.S.C. § 1572(d), which provides immunity to Virgin Islands legislators “for any speech or debate in the legislature.”

Key Quote

“[T]he Government’s allegations underlying the case at hand do not rely on establishing that James performed any legislative acts.  Rather, the Government’s case relies on establishing that James’ actions diverged from any genuine legislative act that James may wish to argue he engaged in.”  (Slip op. at 23.)

Defendant Must Show More Than Just Delay to Establish a Speedy Trial Violation

United States v. Shaw (May 30, 2018), No. 16-2860

Unanimous decision: Restrepo (writing), Smith, McKee


Defendant, a former corrections officer, was convicted in the District of New Jersey of sexually assaulting an inmate and obstructing justice.  Defendant contended that his constitutional right to a speedy trial was violated when his trial was delayed for over two years from the time of his arrest. 


A Sixth Amendment speedy trial violation cannot be presumed based solely on the length of the delay.  To support a Sixth Amendment claim, courts must look to several factors including the length of the delay, the reason for the delay, Defendant’s assertion of his right, and prejudice to Defendant caused by the delay.  Defendant failed to establish a speedy trial violation because he cited only the length of the delay in support of his claim and did not address any of the other factors relevant to a Sixth Amendment claim.

Key Quote:

Defendant “merely contends that prejudice can be presumed from the length of the delay . . . However, even assuming arguendo that the delay in Shaw’s case was presumptively prejudicial, Doggett [v. United States] further provides that “such presumptive prejudice cannot alone carry a Sixth Amendment claim . . .”  (Slip. op. at 26.)

Barbershop Employee’s Observations of Defendants’ Suspicious Behavior Upheld as Admissible Under Rule 404(b)

United States v. Foster (May 30, 2018), No. 16-3650; United States v. Payton (May 30, 2018), No. 16-4225

Unanimous decision: Jordan (writing), Shwartz, Krause


A jury convicted Defendants of unlawful possession of a firearm by a felon (18 U.S.C. § 922(g)(1)).  Defendants argued on appeal, among other things, that the trial judge should have excluded certain testimony under Federal Rule of Evidence 404(b) — specifically, testimony from a witness who observed Defendants “feverishly looking about the shopping center” as they sat parked outside his barbershop in a stolen car. 


The testimony was admissible because it was entered as evidence of motive, it was relevant, and it was not unduly prejudicial.

Key Quote:

“In sum, the Court made a reasonable determination to admit the barbershop employee’s testimony because that evidence was introduced to prove motive, was relevant, was highly probative, and was not unduly prejudicial.”  (Slip. op. at 28-29.)

In Absence of Motion for Reconsideration, Court of Appeals Lacks Jurisdiction to Review District Court’s Suppression Order

United States v. Kalb (May 31, 2018), No. 17-1333

Unanimous decision: Scirica (writing), Jordan, Hardiman


Defendant, who was charged with aiding and abetting the destruction of property on federal land, moved to suppress evidence recovered by police during a search of his vehicle. 


The Government’s failure to file a timely motion to reconsider the District Court’s order suppressing evidence stripped the Court of Appeals of jurisdiction, which would have otherwise been provided by 18 U.S.C. § 3731.  The Court of Appeals held that, because the Government presented new arguments and a new theory on appeal, the District Court did not abuse its discretion in denying the Government’s motion for reconsideration.

Key Quote:

“In its motion for reconsideration, the government presented two new arguments that were not previously raised . . . [and] also advanced a new theory.  In denying the motion for reconsideration, the District Court determined the government’s arguments ‘could well have been made earlier’ and were accordingly ‘not a proper basis for reconsideration.’”  (Slip. op. at 23-24.)

Deletion of Files Prior to Arrest Does Not Trigger Obstruction-of-Justice Sentencing Enhancement

United States v. Welshans (June 14, 2018), No. 16-4106

Majority opinion: Restrepo (writing), Ambro, Fuentes (concurring in part and dissenting in part)


Defendant argued that the District Court improperly applied a sentencing enhancement for obstruction of justice (U.S.S.G. § 3C1.1).  In this case, Defendant attempted to delete computer files upon receiving a tip from a relative that the police were “on their way” to Defendant’s house to “look for stuff” involving his computers.  Defendant argued at sentencing that, because the attempted deletion of files occurred contemporaneously with arrest, U.S.S.G. § 3C1.1 is inapplicable because the conduct did not result in a “material hindrance to the official investigation or prosecution.”  (Slip. op. at 23.)


U.S.S.G. § 3C1.1. is inapplicable on these facts because Defendant acted contemporaneously with his arrest.  In the District Court, prosecutors failed to allege that Defendant’s conduct created a “material hindrance.”  (Slip. op. at 29.)  Although the Government waived this issue, the Third Circuit addressed it anyway, determining that Defendant’s conduct of moving incriminating files to the “recycle bin” of his computer was not a “material hindrance” because the files were easily restored and none were lost.   (Slip. op. at 31.)

Key Quote:

“[T]he Government was not materially hindered when Welshans moved files into the recycling bin [on his computer].  The files were easily restored, and none were lost.  The fact that the process took “extra time” and was raised at trial as evidence of guilt in no way amounts to a ‘material hindrance’ . . .”  (Slip. op. at 31.)


Judge Fuentes disagreed with the majority’s holding that Defendant’s movement of his pornography folders was “contemporaneous with arrest,” writing that Defendant’s actions occurred “well before agents arrived to search his home.”  (Judge Fuentes concurrence and dissent at 1; emphasis in original.)

Non-Precedential Opinions of Note

United States v. Bucci (April 16, 2018), No. 17-1956

The Third Circuit affirmed the District Court’s ruling that Defendant was not entitled to a sentencing reduction for acceptance of responsibility.  The Third Circuit reasoned that, despite his guilty plea to fraud and filing false tax returns, Defendant did not accept responsibility for his crimes.  In reaching this conclusion, the Third Circuit accepted the District Court’s rationale that because, at Defendant’s sentencing hearing, he “expressly denied that he defrauded certain people, and sought to avoid paying restitution to these victims,” Defendant “did not truly accept responsibility for his crimes.”  (Slip op. at 5-6.)

United States v. Foster (May 23, 2018), No. 17-1902

The Third Circuit held that Defendant in a carjacking case failed to establish that the District Court’s remarks during trial had unduly influenced the jury.  In overruling an evidentiary objection to a law enforcement officer’s testimony, the trial judge said: “Overruled.  Lay opinion, testimony credible.  Overruled.”  The Third Circuit applied a “four-factor sliding scale test” to find that the judge’s comments were not unduly influential as “vouching” for the credibility of the witness.  (Slip. op. at 9.)  The factors that comprise this test include: (1) “the materiality” of the District Court judge’s comment; (2) the “emphatic or overbearing nature” of the comment; (3) “the efficacy of any curative instruction;” and (4) “the prejudicial effect of the comment in light of the jury instruction as a whole.”  Id.

United States v. O’Brien (June 19, 2018), No. 16-3814

The Third Circuit rejected Defendant’s argument that the District Court violated his Sixth Amendment rights by failing to appoint defense counsel at the hearing to determine whether Defendant could represent himself.  The Court wrote: “[Defendant] has not identified, nor have we found, any legal authority supporting the proposition that a defendant must be represented by counsel at a hearing to waive the right to counsel.”  (Slip. op. at 7.)

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Stephen A. Miller

Co-Chair, White Collar Defense & Investigations

(215) 665-4736

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