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    • Brief

    United States v. Raia

    Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

    Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.

    • Brief

    United States v. Christopher Wright

    Wright and his co-defendants were indicted and tried on both conflict of interest and bribery theories of honest services fraud. The district and circuit courts both denied bail pending appeal while Skilling was pending. After Skilling the parties renewed the motion, the government did not object, and the Third Circuit ordered bail pending appeal. On appeal, the defense pursued both a judgment of acquittal and a new trial. Among other arguments, the government asserted that any errors with regard to honest services fraud should not disrupt the conviction on the traditional mail fraud count.

    Argument: On January 4, 2012, the Third Circuit vacated all counts of conviction and remanded for a new trial.  The court reasoned that all the honest services counts must be vacated even though they included a seemingly valid post-Skilling theory, because they were not limited to that theory.  The court further reasoned that the traditional mail fraud count must also be vacated due to the prejudicial spillover from the honest services fraud counts.  Notably, the court treated the Skilling issue as preserved, and thus applied harmless error rather than plain error review, even though the objections in the district court did not anticipate the precise contours of Skilling.  

    The rebuttal argument, made by lead attorney and NACDL Member Lisa Mathewson, was particularly effective at delineating the honest services fraud arguments.  The full oral argument audio can be accessed on the Third Circuit's website.

    In October 2014, the Third Circuit heard the defendants' argument that the government should be precluded from arguing the bribery theory of honest services fraud because the jury had already decided on that issue during the initial trial. The court's decision has yet to be released.