Philadelphia Criminal Defense Blog

Zak Goldstein 9/27/21 Zak Goldstein 9/27/21

3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Third Circuit Court of Appeals has decided the case of United States v. Denmark, holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.

U.S. v. Denmark

Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap.

Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition.

The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon.

During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office.

How is U.S.S.G § 2D.1(b)(1) Applied?

Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense.

In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present.

The Third Circuit’s Decision

The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense.

In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible.

The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.

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Zak Goldstein 9/24/21 Zak Goldstein 9/24/21

Attorney Goldstein Wins PA Superior Court Appeal of Motion to Suppress Gun

Philadelphia Criminal Defense attorney Zak T. Goldstein, Esquire, recently won a Superior Court appeal in the case of Commonwealth. v. T.G. In T.G., prosecutors had charged the defendant with possession of a firearm by a prohibited person (VUFA 6105), possession of a concealed firearm without a permit (VUFA 6106), and possession of a firearm on the streets of Philadelphia (VUFA 6108). T.G. had retained a different firm for his motion to suppress and trial. The trial court denied T.G.’s motion to suppress the gun, and a jury eventually convicted him. He was sentenced to 8-16 years’ incarceration.

T.G. retained Attorney Goldstein for his appeal to the Superior Court. On appeal, Attorney Goldstein challenged the trial court’s denial of the motion to suppress, the trial court’s decision to remove family members from the courtroom during jury selection, and the trial court’s refusal to properly instruct that it could consider questions regarding the credibility of the officers with respect the reasons for searching T.G.’s car when considering whether they believed the officers that T.G. in fact possessed a gun.

At the motion to suppress, the officer had testified as follows:

On November 23, 2017, a little after 1:00 a.m., Officer Alvarez was in a marked police car on routine patrol in the Germantown area of Philadelphia. Officer Alvarez was driving with his partner Officer William Benson in the passenger seat. At the time, Officer Alvarez had been a police officer for five years with four of those years assigned to the 14th District, which included Germantown. Since he began working in the district, Officer Alvarez estimated he has made about 15 to 20 arrests involving narcotics and firearms being found together.
Near the intersection of Germantown Avenue and Berkley Street, Officer Alvarez saw a 2011 Chevy Camaro traveling southbound on Germantown Avenue. T.G. was driving the Chevy Camaro and had a passenger with him in the front. Noticing that the Chevy Camaro had dark window tinting, Officer Alvarez began to follow the car for several blocks. Although the car did not swerve, speed or make any sudden stops, Officer Alvarez pulled the car over because of the possible violation under 75 Pa.C.S. § 4524.1. When he saw the officer’s lights, T.G. immediately pulled the Chevy Camaro, which was registered in his name, to the side of the road.
Officer Alvarez walked up to the driver’s side window and asked Griffin to lower his window; Officer Alvarez later testified that he could not see into the car because of the tint. After T.G. lowered his window, Officer Alvarez asked for his license, registration and insurance. As T.G. looked for the information, Officer Alvarez smelled an odor of burnt marijuana coming from inside the car, describing it as a “mediocre” smell but not overwhelming. Though he had no specialized training in identifying marijuana, Officer Alvarez was familiar with its odor through his experience as a police officer. Despite smelling marijuana, however, Officer Alvarez did not see any narcotics or paraphernalia inside T.G.’s car.
Besides the odor of marijuana, Officer Alvarez also noticed that T.G. appeared “very nervous” as he was looking for his information. According to Officer Alvarez, T.G. was breathing heavily and his hands were shaking. At the suppression hearing, though, Officer Alvarez admitted that T.G. did not have bloodshot eyes or dilated pupils.
After T.G. found his information in the glove compartment, Officer Alvarez asked him to exit the car. T.G. complied and got out. Officer Alvarez asked him if there was anything illegal in the car or if either he or his passenger had a permit to carry a firearm. T.G. responded that there was nothing illegal in the car and that his passenger had a permit to carry. Because T.G. was wearing a large puffy jacket, Officer Alvarez patted him down for weapons. Feeling none, Officer Alvarez put T.G. in the back of his patrol car without handcuffs.
Officer Alvarez then returned to the Chevy Camaro to conduct a warrantless search for narcotics based on the odor of marijuana. Although he did not find any narcotics, Officer Alvarez found a Ruger 9mm handgun under the driver’s seat. After finding the handgun, Officer Alvarez went back to his patrol car to check if T.G. had a license to carry. As he did this, Officer Alvarez heard T.G. moving around in the back. This prompted Officer Alvarez to put handcuffs on T.G. When Officer Alvarez tried to do so, T.G. pushed him away and took off running but was soon captured. T.G. was charged with persons not to possess, receiving stolen property, firearms not to be carried without a license, carrying firearms in Philadelphia and resisting arrest.

While the appeal was pending, Pennsylvania appellate courts decided the cases of Commonwealth v. Barr and Commonwealth v. Alexander. In Barr, the Pennsylvania Superior Court concluded that the odor of marijuana alone does not automatically justify the warrantless search of a car. Similarly, in Commonwealth v. Alexander, the Pennsylvania Supreme Court determined that absent exigent circumstances, police must obtain a search warrant prior to searching a motor vehicle. Given this change in the law, Attorney Goldstein filed a reply brief arguing that Barr was now controlling in this case and that the motion should have been granted because the odor of marijuana did not give the police the right to search the car.

The Superior Court agreed and remanded the case to the trial court. The Superior Court instructed the trial court to reconsider its ruling on the motion to suppress in light of Barr and Alexander. The trial court was instructed to determine if the police had any legitimate basis other than the odor of marijuana for searching the car and also to decide whether Alexander, which requires a search warrant, applies retroactively. If Alexander applied retroactively, then the trial court was also directed to evaluate whether police had the exigent circumstances necessary for searching the vehicle without a warrant.

Following the remand, Attorney Goldstein successfully convinced the trial court to reconsider its original ruling and grant the motion to suppress the gun. The Commonwealth argued that although the odor of marijuana alone does not provide the probable cause for a search, the marijuana along with T.G.’s nervousness, the late hour, the fact that T.G. said the passenger had a license to carry, and the puffy coat provided the Commonwealth with the necessary reasonable suspicion to conduct a frisk of T.G. and of the passenger compartment of the car. Attorney Goldstein argued that Alexander applied retroactively, that police should have obtained a search warrant prior to the search, and there was simply no legitimate basis for concluding that T.G. was involved in some criminal activity or armed and dangerous which would justify a frisk.

The trial court agreed with the defense and granted the motion to suppress. T.G., who would have had to serve up to 16 years in prison, was promptly released from state custody.

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Goldstein Mehta LLC Criminal Defense Attorneys

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Zak Goldstein 9/23/21 Zak Goldstein 9/23/21

PA Supreme Court: Partial Concealment May Not Be Enough to Convict for Carrying a Gun Without a Permit

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Montgomery, holding that partial concealment may not be sufficient to convict a defendant of carrying a firearm without a license (“VUFA 6106”). This is a significant decision because prior to this, trial and appellate courts would hold that even the slightest concealment was sufficient to convict a defendant of VUFA 6106. Now, courts will employ a totality of the circumstances test to determine whether a defendant was knowingly, intentionally, or recklessly concealing the firearm from ordinary observation.

Commonwealth v. Montgomery

A Philadelphia Police Officer was on patrol when he observed the defendant messing with what he believed to be the handle of a gun in his waistband. The defendant then entered a nearby store. Upon leaving the store, the defendant saw the officer and then re-entered the store. The officer proceeded to follow the defendant into the store. The officer searched the store and located a firearm on the top of a rack of potatoes, a couple of feet away from where the defendant was standing. At that time, the only other individuals in the store were a cook, two other employees, and a customer. Upon finding the gun, the officer stopped the defendant in the middle of the store and asked if the firearm belonged to him, to which the defendant said it did not. The officer did not believe the defendant and arrested him. The defendant was subsequently charged with carrying a firearm on the public streets of Philadelphia (“VUFA 6108”) and VUFA 6106.

At the defendant’s preliminary hearing, the trial court dismissed the VUFA 6106 charge based on a lack of evidence. The Commonwealth then refiled the VUFA 6106 charge, but it was again dismissed. In its decision, the trial court held that the Commonwealth had failed to present sufficient evidence to establish a prima facie case of carrying a firearm without a license. Specifically, the trial court found that there was not sufficient evidence presented at the preliminary hearing to show that the defendant concealed the gun because the officer never testified that he saw the defendant with the gun in his hand and that he only believed that the handle he saw was that of a gun. The Commonwealth then filed an interlocutory appeal to the Pennsylvania Superior Court.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court. The Superior Court held that “any concealment, even partial, is sufficient to satisfy the concealment element of [VUFA 6106].” The defendant then filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Court agreed to hear the case.

What is VUFA 6106?

A person is guilty of VUFA 6106 if:

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the trial court. The defendant argued that the evidence showed that his firearm was never placed out of sight or shielded from vision. Additionally, he argued that if the Pennsylvania Legislature had intended to criminalize partial concealment it would have said specifically said so in the statute. However, it did not do so and thus the VUFA 6106 statute must be strictly read to require full concealment.

The Pennsylvania Supreme Court agreed with the defendant that partial concealment may not be sufficient to convict a defendant of VUFA 6106. However, the Pennsylvania Supreme Court declined to hold that total concealment is necessary to convict a defendant of VUFA 6106. As such, the Pennsylvania Supreme Court adopted a rule stating that a defendant is “concealing” a firearm “when, viewed in the totality of the circumstances, he or she carries the firearm in such a manner as to hide the firearm from ordinary observation; absolute invisibility to others is not required.”

Applying this new rule to the facts of this case, the Pennsylvania Supreme Court found that there was sufficient evidence to establish a prima facie case of concealment. In making its decision, the Pennsylvania Supreme Court stated that because the officer saw what he believed to be the handle of a handgun in the defendant’s waistband; the defendant immediately re-entered the store after making eye contact with the officer; and because the gun was found within feet of where he was standing there was sufficient evidence to make a prima facie finding that the defendant had concealed the handgun. Obviously, this does not mean that the defendant will be found guilty at trial, but he will be forced to stand on trial on the charge of VUFA 6106. And although this defendant’s case will proceed, it is still a very helpful opinion for defendants who are charged with gun crimes despite the police claiming that they were able to see the gun.

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Zak Goldstein 9/8/21 Zak Goldstein 9/8/21

PA Supreme Court: Parent Does Not Commit Endangering Welfare of a Child by Allowing Child to Ride in Uber Without Car Seat

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Howard, holding that a person does not commit the crime of Endangering the Welfare of a Child (“EWOC”) by allowing her child to ride in a ride-share without a car seat. This decision is significant because so many people rely on Ubers, Lyfts, Taxis, and other ride-sharing services. It should be noted that a parent can still be found guilty of EWOC if there are other facts presented (i.e. the parent was aware that the driver had been driving unsafely). However, a defendant cannot be found guilty simply because their child was not in a car seat while riding in a ride-sharing car even if the car later gets into an accident.

Commonwealth v. Howard

The defendant was riding in a taxi with her child. While driving near Pittsburgh, Pennsylvania, the taxi was involved in a three-vehicle accident. Specifically, the taxi driver rear-ended the car in front of her which then hit another vehicle. It should be noted, there was no evidence to suggest that the driver was driving in an unsafe or reckless manner before the accident occurred. At the time of the accident, the defendant was sitting in the front passenger seat of the vehicle and the child was sitting in the back seat, on the passenger side. There was no car seat in the vehicle and none of the occupants were wearing seatbelts. Thankfully, none of the individuals involved sustained serious injuries.

A Police Officer then arrived on scene. While speaking with the defendant, the defendant told the officer that “she had feared that her daughter would fly from the back seat and hit the windshield.” Based on this conversation and the above-mentioned facts, the officer arrested the defendant. The defendant was later charged with reckless endangerment of another person (“REAP”) and EWOC. The defendant elected to proceed by a bench trial. At the conclusion of the trial, the defendant was convicted of both charges. The trial court imposed a sentence of one-year probation for the crime of EWOC and no further penalty for the crime of REAP. The defendant then filed a timely appeal to the Pennsylvania Superior Court arguing that the evidence was insufficient to sustain her convictions.

The Pennsylvania Superior Court’s Opinion

A divided Pennsylvania Superior Court reversed her conviction for the crime of REAP finding that her actions did not rise to the level of criminal recklessness. However, the Superior Court affirmed her conviction for EWOC. In making its decision, the Superior Court reviewed the EWOC statute. In its analysis of the statute it found that a defendant is guilty of EWOC when:

1) he or she is “aware of his or her duty to protect the child; 2) is aware that the child is in circumstances that threaten the child’s physical or psychological welfare; and 3) has either failed to act or has taken actions so lame and meager that such actions cannot reasonably be expected to protect the child’s physical or psychological welfare.”

Based on its review of the statute and the facts of the defendant’s case, the Superior Court found that because the defendant knew the vehicle did not have a car seat and “knowingly failed to fasten her daughter’s seatbelt,” she was consequently guilty of EWOC. Further, the Superior Court found that EWOC does not require that a child be in imminent threat of physical harm, but “only requires proof of circumstances that could threaten the child’s physical or psychological welfare.” Undeterred, the defendant then filed a petition of allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s case. On appeal, the Pennsylvania Supreme Court agreed to decide whether a parent riding in a taxi (or using a similar ride-sharing service) without a car seat is sufficient to support a conviction for EWOC.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the defendant’s conviction. The Pennsylvania Supreme Court began its analysis by reviewing the EWOC statute. Based on its analysis of the statute, the Court stated that to convict a defendant of EWOC the Commonwealth must prove that a parent was aware that their conduct endangered the welfare of the child and it was not sufficient to prove that a parent is merely aware of their duty of care to their child. Further, the Court must determine whether the parental conduct at issue “offends the common sense of community and the sense of decency, propriety, and the morality which most people entertain.”

The Pennsylvania Supreme Court found that the defendant’s actions did not offend “the common sense of community.” In the instant case, there was no evidence that the driver was engaged in unsafe or reckless driving prior to rear ending the other car. Further, the Commonwealth presented no evidence (other than the absence of a car seat) that the defendant’s conduct in allowing her child to drive in a taxi without a car seat endangered the welfare of her child. Finally, the Pennsylvania Supreme Court reviewed the Motor Vehicle Code and found that the defendant could only have been found guilty of a summary offense if she had actually been driving the vehicle. The Pennsylvania Supreme Court therefore reversed her conviction for the first-degree misdemeanor charge given that the Pennsylvania General Assembly had already deemed this conduct to be a summary offense at worst.

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