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Crossing some lines and “tiptoeing near” others: Three Third Circuit reversals

In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.

United States v. Victor Lopez, 818 F.3d 125 (3d Cir. Apr. 20, 2016).

Mr. Lopez was convicted in the District of New Jersey for possessing a firearm as a convicted felon, in violation of Section 922(g). The Third Circuit vacated the conviction due to a Doyle violation: the prosecution’s repeated references at trial to the defendant’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610 (1976) prohibits the prosecution from impeaching a defendant with post-Miranda silence. The opinion, written by Judge Vanaskie, is the latest in a string of Doyle violations found by the Third Circuit. It is significant principally as the first Third Circuit precedent for unpreserved Doyle error.

Mr. Lopez was tried in the District of New Jersey on a single felon-in-possession count under 18 U.S.C. 922(g). The trial was a credibility contest between Mr. Lopez and the two arresting officers. The officers testified that they stopped and frisked Mr. Lopez and a second man. The other man fled and has not been identified. The officers testified that Mr. Lopez had a gun in his pocket, and they arrested him on that basis. Mr. Lopez testified that he did not have a gun, and that the officers asked him to identify the other man and then framed him for the gun, which the other man must have left at the scene. As the Third Circuit explained, “The jurors were faced with the decision of whether to believe the officers’ testimony that they found a gun in Lopez’s pocket or to believe Lopez’s testimony that the police framed him.”

On cross examination, the prosecutor repeatedly asked Mr. Lopez whether, before his trial testimony, he had given this exculpatory account. E.g.: “At any point, from the next day until just before this trial, did you tell anybody, ‘I was framed by police’?” In closing argument, the prosecutor made seven statements that violate the Doyle rule by inviting the inference that Lopez’s prior silence impeaches the credibility of his trial testimony.

The court held that the prosecution’s questions and arguments violate Doyle, because they raised the impermissible inference that Mr. Lopez’s assertion of his right to silence undermines his credibility. The error, which did not raise a defense objection, was plain.

The error overcame the third prong of plain error review‒a reasonable probability that the error affected the outcome‒because the outcome of trial “depended entirely on [Lopez’s] credibility as compared to the officers’ credibility.”

The court held that the error met the fourth prong of plain error review‒seriously affecting the fairness, integrity or public reputation of judicial proceedings‒for three reasons: (1) “the case hinged entirely on the relative credibility of Lopez and the officers, with no corroborating evidence for either side’s account”; (2) “the Doyle violation was blatant”; (3) “repeated emphasis of the error in closing argument exacerbated the prejudice from the violation.”

In a footnote, the court described the prosecution’s misconduct as “particularly egregious” given Doyle precedent in the circuit. In the next footnote, the court thanked the appellate AUSA, who conceded the Doyle error (although not prejudice) at oral argument, and promised to implement improved training to prevent such errors in the future.

United States v. Johnny Vasquez-Algarin, — F.3d. —-, 2016 WL 173540 (3d Cir. May 2, 2016)

On appeal of a motion to suppress, the Third Circuit vacated Mr. Vasquez-Algarin’s convictions for distribution and possession with intent to distribute cocaine and conspiracy, under 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), and § 846. The decision, written by Judge Krause, establishes that law enforcement must have probable cause to believe a suspect is residing and present at an address before forcing entry into a private home. In stirring language, the decision also declines to apply the good-faith exception.

In this case, officers discovered Mr. Vasquez-Algarin, and evidence of cocaine distribution, when they forced entry into a private home searching for a homicide suspect, Edguardo Rivera. Law enforcement knew it was not Rivera’s home, but had received a tip that Rivera was “staying” at the address. Rivera was not present when the search was conducted. Mr. Vasquez-Algarin moved to suppress the evidence found during the search, arguing that law enforcement did not have sufficient reason to believe Rivera was residing or present at the address.

The Third Circuit clarified the open question of what constitutes an officer’s “reasonable belief” that a suspect is residing in and present in a home, which is required for forcing entry into a private home to search for the subject of an arrest warrant. This question has split the circuits, with the D.C., First, Second and Tenth Circuits requiring less than probable cause; the Fifth, Sixth, Seventh and Ninth Circuits have interpreted “reasonable belief” to require probable cause. In adopting probable cause, the opinion relies on a close reading of Supreme Court precedent, but also looks to the “more fundamental” question of the importance of privacy in the home: “Without question, the home takes pride of place in our constitutional jurisprudence.”

In reviewing for probable cause here, the court relied primarily on the officer’s testimony at the suppression hearing. The officer explained that he knocked for so long at the door before forcing entry, because “[t]he address was not the address of record for Rivera, so we wanted to knock and attempt to gain contact with somebody inside and gain their consent to search the address.” With that knowledge, the court held, the officers lacked probable cause to believe Rivera was present in the home.

The court declined to apply the good-faith exception to the exclusionary rule, describing the officers’ information that Rivera was present in the home as “vague and uncorroborated”: “we conclude the officers’ conduct was, at a minimum, ‘grossly negligent,’ and thus was ‘sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.’”

United States v. Ralph Dennis, No. 14-3561 (3d Cir. June 24, 2016)

Because the district court refused the defense motion for an entrapment instruction, the Third Circuit vacated Ralph Dennis’s convictions for conspiracy to rob a narcotics stash house and for carrying a firearm during the commission of that crime. The court left intact his conviction for conspiracy to distribute and possess with intent to distribute cocaine, and declined to find that the prosecution of the reverse-sting stash house operation violated due process. Judge Nygaard wrote the opinion for a divided panel. Judge Ambro dissented as to the entrapment instruction, and concurred on the due process issue; he used his concurrence to raise policy concerns.

An ATF confidential informant, Burk, approached Dennis proposing a number of robbery schemes. Dennis declined three times to participate in bank robberies. When Dennis proposed robbing a cocaine stash house, saying that the robbery would yield cocaine worth $2 million, and that Burk needed the money to pay for his mother’s cancer treatment, Dennis agreed to take part as the driver. ATF recorded conversations planning the robbery. One of the co-conspirators acquired a gun for Dennis to carry. The men were arrested as they rehearsed the robbery.

Reverse-sting stash house operations have drawn public criticism and have recently been addressed by the Seventh and Ninth Circuits. In this case, the Third Circuit declined to hold that the prosecution itself was “outrageous” government conduct in violation of due process, but held that Mr. Dennis had the right to an entrapment instruction at trial.

A defendant is entitled to an entrapment instruction when there is evidence of: (1) inducement by the government, and (2) reasonable doubt as to the defendant’s predisposition to commit the crime. The court held that a reverse-sting operation does not per se satisfy the inducement prong. In this case, the “central role” of the government informant, Burk’s appeal to the men’s personal relationship and his ailing mother, and the “substantial financial payoff” show inducement. The court held that the evidence had shown reasonable doubt as to predisposition also, because Dennis presented psychological expert testimony regarding his low I.Q. and susceptibility to influence, and testified that he declined three proposed robberies before agreeing to participate in this one. The district court had weighed the evidence, deciding it “cut both ways,” and declined to give the instruction. The opinion explains that the district court impermissibly invaded the province of the jury by weighing the evidence.

The error was not harmless, because “if Dennis’s motion for an entrapment instruction had been granted, ‘the government would have had the entire burden of disproving entrapment beyond a reasonable doubt.’”

Surprisingly, the court declined to reverse the drug conviction that also arose from the stash house robbery conspiracy, holding that Mr. Dennis’s prior record of drug offenses defeated the predisposition prong.

In dissent, Judge Ambro argued that Mr. Dennis “participated without hesitation” in the stash house conspiracy, and therefore was not entitled to an entrapment instruction, because the evidence did not show inducement by the government. Although Judge Ambro concurred in the denial of the due process issue, he wrote separately “to express [] concern about the constitutional implications of stash house reverse stings.” Judge Ambro went on:

The Government wields tremendous power in investigating crimes. Here it exercised that authority to create from whole cloth a fictitious crime and to prosecute someone for a robbery that could not have been committed. There was no stash house, no cartel, and no cocaine. This is not an isolated occurrence. . . . Indictments based on outrageous conduct cannot stand. No court of appeals has found that the Government has crossed that line in setting up a stash house reverse sting. But it appears that the Government has been tiptoeing near the line.

Maria Pulzetti, the author of this post, is an Assistant Federal Defender at the Federal Community Defender for the Eastern District of Pennsylvania. She litigated Lopez.

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