Subsection 2516(2) Defers to State Law: Third Circuit Confirms State AGs May Delegate Wiretap-Application Authority Without a Federal “Personal Review” Requirement

Subsection 2516(2) Defers to State Law: Third Circuit Confirms State AGs May Delegate Wiretap-Application Authority Without a Federal “Personal Review” Requirement

Introduction

In United States v. James Perrin (consolidated with United States v. Price Montgomery), the Third Circuit issued a precedential decision addressing high-stakes issues at the intersection of Title III wiretap practice, witness tampering, firearms offenses, and sentencing under 18 U.S.C. § 924(j). The case arose from a multi-agency investigation into a Pennsylvania heroin-distribution ring that culminated in wiretaps, firearms seizures, and the murder of a cooperating courier, Tina Crawford, coupled with the attempted murder of her mother, Patsy.

The opinion, authored by Judge Restrepo and joined by Judges McKee and Smith, resolves multiple appellate claims:

  • Whether Title III’s state-authorization provision (18 U.S.C. § 2516(2)) permits delegation by a state’s principal prosecuting attorney, and whether Title III demands “personal review” by that official after delegation.
  • Whether alleged defects in Pennsylvania’s internal authorization rendered the wiretap evidence suppressible.
  • Whether a 924(c) count was constructively amended and, if so, whether plain-error relief was warranted.
  • Whether a life sentence for killing a witness (18 U.S.C. § 1512(a)(1)(C)) violated Apprendi/Alleyne because “murder” elements were not expressly submitted under that count.
  • Whether an ineffective-assistance claim based on Rosemond’s aiding-and-abetting standard could be resolved on direct appeal.
  • Whether the evidence sufficed for witness tampering by attempted murder as to the surviving victim, Patsy.
  • Whether, in light of Lora v. United States, a mandatory consecutive sentence under § 924(j) was plain error.

The Court affirmed Perrin’s convictions and sentence in full; it affirmed Montgomery’s convictions and overall sentencing framework except for vacating a mandatory consecutive 25-year term on Count 8 (§ 924(j)) and remanding for resentencing consistent with Lora.

Summary of the Judgment

  • Title III Delegation and Suppression: Section 2516(2) allows state-law delegation of wiretap-application authority. Title III does not impose a federal “personal review” requirement on a state Attorney General who has delegated that authority. Suppression was properly denied because the authorization substantially complied with Title III and achieved its accountability purpose.
  • Constructive Amendment / § 924(c): Even assuming a constructive amendment occurred when the jury was instructed it could predicate § 924(c) on either Count 1 (conspiracy) or Count 2 (possession with intent to distribute on June 8, 2014), any error did not satisfy the fourth prong of plain error review. The evidence overwhelmingly and uncontrovertedly established possession of firearms in furtherance of the June 8 offense as charged.
  • Apprendi/Alleyne and Witness Tampering by Killing: A life sentence under § 1512(a)(1)(C) (Count 7) was lawful because the jury—via Count 8—expressly found the elements of first-degree murder (malice aforethought; willful, deliberate, premeditated killing). Thus, no Sixth Amendment violation occurred.
  • Ineffective Assistance Claim (Rosemond): Not resolved on direct appeal. The record was inadequate to assess counsel’s performance and prejudice; the claim is denied without prejudice to collateral review.
  • Sufficiency for Attempted Witness Tampering (Patsy): The evidence sufficed that Montgomery attempted to kill Patsy to prevent her likely communication to law enforcement about Tina’s murder, satisfying § 1512(a)(1)(C).
  • Sentencing under § 924(j) after Lora: Imposing a mandatory consecutive 25-year term was plain error. The sentence is vacated and remanded for resentencing with discretion as required by Lora v. United States.

Analysis

Precedents Cited and Their Influence

  • Title III’s core purpose and substantial compliance:
    • United States v. Giordano, 416 U.S. 505 (1974) and United States v. Chavez, 416 U.S. 562 (1974): Identify which statutory requirements “directly and substantially” implement Title III’s intent to limit wiretap usage and support “substantial compliance” analysis.
    • United States v. Acon, 513 F.2d 513 (3d Cir. 1975): Technical defects in authorization that do not undercut Title III’s accountability goals do not require suppression.
    • United States v. Johnson, 696 F.2d 115 (D.C. Cir. 1982): Even violations of “central requirements” can be excused if Title III’s purpose is still achieved.
    • Legislative history: S. Rep. No. 1097 (1968), and Senator McClellan’s remarks confirming state-law control over delegation and the centralization of responsibility in politically accountable officials.
    • United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013) and United States v. Fury, 554 F.2d 522 (2d Cir. 1977): Practical need for delegation to avoid halting wiretap practice during an official’s absence.
    • United States v. Martinez, 588 F.2d 1227 (9th Cir. 1978) and United States v. Turner, 528 F.2d 143 (9th Cir. 1975): Courts do not police the authorizing official’s internal reasoning once proper authorization is established.
    • Cases cited by defendants but not adopted: United States v. Smith, 726 F.2d 852 (1st Cir. 1984); Villa v. Maricopa County, 865 F.3d 1224 (9th Cir. 2017); United States v. Lyons, 740 F.3d 702 (1st Cir. 2014). The Third Circuit declined to read Title III to impose a federal “personal review” requirement on a delegating state AG.
  • Constructive amendment and plain error:
    • United States v. Greenspan, 923 F.3d 138 (3d Cir. 2019): Under the fourth prong of plain error, overwhelming uncontroverted proof of the charged offense weighs decisively against relief.
    • United States v. Sparrow, 371 F.3d 851 (3d Cir. 2004) and United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000): “In furtherance” analysis for § 924(c), including the frequently applied Ceballos-Torres factors.
    • Comparative support: United States v. Thomas, 970 F.3d 809 (7th Cir. 2020); United States v. Robinson, 435 F.3d 1244 (10th Cir. 2006).
    • Invited-error context: Virgin Islands v. Rosa, 399 F.3d 283 (3d Cir. 2005); United States v. Lespier, 725 F.3d 437 (4th Cir. 2013).
  • Apprendi/Alleyne and cross-count findings:
    • Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013): Facts increasing statutory maxima/minima must be found by a jury.
    • United States v. Johnson, 899 F.3d 191 (3d Cir. 2018): Distinguishes trial error and sentencing error; permits harmlessness analysis where the same jury necessarily found the relevant element beyond a reasonable doubt.
    • United States v. Stevenson, 832 F.3d 412 (3d Cir. 2016): Count-by-count notice analysis for indictments. The Court clarifies that this notice framework does not bar using cross-count jury findings at sentencing.
    • Substantive murder definitions: 18 U.S.C. § 1111(a)-(b) (defining first- and second-degree murder and authorizing life imprisonment).
  • Ineffective assistance and Rosemond:
    • Rosemond v. United States, 572 U.S. 65 (2014): Aiding-and-abetting § 924(c) requires advance knowledge that a gun will be used or carried.
    • Massaro v. United States, 538 U.S. 500 (2003): Ineffective-assistance claims are usually ill-suited to direct appeal; best addressed on collateral review with a developed record.
    • Third Circuit practice: United States v. Olfano, 503 F.3d 240 (3d Cir. 2007); United States v. McLaughlin, 386 F.3d 547 (3d Cir. 2004); United States v. Washington, 869 F.3d 193 (3d Cir. 2017); United States v. Jones, 336 F.3d 245 (3d Cir. 2003).
  • Witness tampering (attempt) and scope of “relating to”:
    • United States v. Tyler, 956 F.3d 116 (3d Cir. 2020): Elements for § 1512(a)(1)(C) for killing or attempting to kill to prevent communication about a federal offense.
    • Pugin v. Garland, 599 U.S. 600 (2023): “Relating to” means having a connection with—supports the breadth of § 1512’s “information relating to” language.
    • Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017) (vacated on other grounds): Later federal investigation is probative evidence of likely communication to federal officials.
    • Evidence review standard: Jackson v. Virginia, 443 U.S. 307 (1979); United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (en banc).
  • Sentencing under § 924(j) after Lora:
    • Lora v. United States, 599 U.S. 453 (2023): § 924(j) contains no consecutive-sentencing mandate.
    • Plain error and prejudice: United States v. Payano, 930 F.3d 186 (3d Cir. 2019); United States v. Diaz, 90 F.4th 335 (5th Cir. 2024); United States v. Ortiz-Orellana, 90 F.4th 689 (4th Cir. 2024).
    • Institutional integrity in correcting sentencing errors: United States v. Henderson, 64 F.4th 111 (3d Cir. 2023); Rosales-Mireles v. United States, 585 U.S. 129 (2018).

Legal Reasoning

1) Title III Authorization: Delegation Permitted; No Federal “Personal Review” Requirement

The Court rejected the argument that § 2516(2) categorically bars delegation by a state’s principal prosecuting attorney. The statutory text expressly defers repeatedly to “applicable State statute” for who may apply for a wiretap. Legislative history confirms that “not name but function” controls and that states may use “special designees.” Reading § 2516(2) to nullify state-law delegation regimes would contradict Congress’s design to centralize responsibility within state systems while ensuring accountability.

The Court also declined to impose a federal “personal review” requirement on a delegating state AG. Section 2516(2) contains no such mandate; federal courts should not superimpose federal oversight on internal state allocation of duties. Practically, requiring personal review from an unavailable AG would risk stoppages in time-sensitive investigations. Thus, if the designee is “properly authorized under state law,” the application may proceed under § 2516(2).

On the suppression remedy, the Court applied Title III’s substantial-compliance doctrine. Even assuming a defect under the Pennsylvania Wiretap Act’s written-designation formalities, the record demonstrated “authorization in fact”: the AG orally directed the First Deputy to sign and did not rescind or halt the application once informed. That satisfied Title III’s central accountability goal. Suppression—reserved for failures that undermine core statutory safeguards—was unwarranted.

2) Alleged Constructive Amendment of § 924(c) Count: No Relief Under Plain Error

The defense argued Count 5 was constructively amended because the jury instructions permitted a § 924(c) conviction predicated on either the June 8 possession-with-intent offense (Count 2, as charged in the indictment) or the broader conspiracy (Count 1). Applying plain-error review, the Court declined relief at the fourth prong, emphasizing overwhelming, uncontroverted evidence that the firearms advanced the June 8 trafficking offense:

  • Seizure of 1,625 bricks of heroin, $21,000 in cash, a money counter, cutting agents, and 16 firearms stored with ammunition in the residence, plus drugs and cash in the vehicle.
  • Accessibility, types of weapons (including stolen guns acquired with heroin), illegal possession by felons, proximity to drug proceeds, and the business’s scale—all aligning with the Ceballos-Torres/Sparrow “in furtherance” factors.

The Court also noted the defendants proposed the very instruction challenged on appeal—a classic invited-error feature that strongly counsels against relief at the fourth plain-error prong.

3) Apprendi/Alleyne: Life Sentence for Witness Tampering by Killing Upheld

Montgomery argued that because Count 7 did not spell out “murder” elements, his life sentence violated Apprendi/Alleyne. The Court disagreed: the jury’s verdict on Count 8 necessarily found the elements of first-degree murder (malice aforethought; willful, deliberate, premeditated killing) beyond a reasonable doubt, and Count 8 expressly incorporated Count 7’s witness-tampering theory. Utilizing those same jury-found facts at sentencing for Count 7 presents no Apprendi/Alleyne problem; indeed, it would be anomalous to forbid reliance on contemporaneous jury findings when reliance on prior proceedings’ findings (e.g., prior convictions) is permissible. The Court also clarified that count-by-count notice principles in indictment drafting (Stevenson) do not constrain consideration of cross-count jury findings at sentencing.

4) Ineffective Assistance (Rosemond) Deferred to Collateral Review

Montgomery challenged an aiding-and-abetting instruction on Counts 8 and 10 for not incorporating Rosemond’s “advance knowledge” requirement. Because defense counsel had joined the proposed instruction, the claim came via ineffective assistance, not plain error. Under Massaro, the appellate record—designed for trial, not for evaluating counsel’s strategy—was inadequate to resolve performance and prejudice. The Court declined to decide the issue on direct appeal, denying it without prejudice to a collateral (post-conviction) proceeding.

5) Sufficiency for Attempted Witness Tampering (Patsy): Broad Reading of “Any Person” and “Relating to”

The Court upheld the conviction that Montgomery attempted to kill Patsy to prevent her from communicating with law enforcement about Tina’s murder, a federal offense. The statute reaches attempts to prevent communication by “any person” of information “relating to” (i.e., connected with) a federal offense. The evidence supported findings that:

  • Patsy, an eyewitness and victim, possessed information naturally connected to the commission of Tina’s murder (e.g., number of shooters, details of the ambush).
  • Montgomery knew agents had targeted Tina, knew she was heading toward cooperation meetings, and fled after the shooting—supporting his intent to eliminate witnesses.
  • A federal investigation in fact followed, further evidencing that Patsy’s communication with federal law enforcement was reasonably likely.

Under Jackson and the Third Circuit’s “bare rationality” standard, the verdict stood.

6) Sentencing Under § 924(j) After Lora: Mandatory Consecutive Term Vacated

The district court (in line with then-binding Third Circuit precedent) imposed a mandatory consecutive 25-year sentence for Count 8 (§ 924(j)). After Lora v. United States, § 924(j) has no consecutive-sentencing mandate. Applying plain-error review, the Third Circuit vacated the consecutive term because it cannot say with confidence that, had the judge known of his discretion, the same sentence would have resulted. Even where a life sentence remains, an unlawful consecutive term affects substantial rights and implicates the integrity of the system, warranting remand.

Impact

  • Wiretap practice in the Third Circuit:
    • State Attorneys General may delegate wiretap-application authority so long as state law permits. Title III does not require the AG’s personal review after delegation.
    • Suppression is not a remedy for mere technical authorization defects if the record shows “authorization in fact” and preserves Title III’s accountability aims.
    • Practical takeaway: State offices should ensure that state-law delegation mechanisms are clear and complied with; contemporaneous documentation and oral/actual authorization can be decisive in substantial-compliance analysis.
  • Charging and instructing § 924(c) counts:
    • Care in matching the charged predicate to the proof and jury instructions is essential. But on appeal, constructive-amendment claims face long odds if the proof of the charged predicate is overwhelming and defense invited the instruction.
  • Apprendi/Alleyne and cross-count findings:
    • Prosecutors can rely on contemporaneous jury findings under one count (e.g., murder elements) to support sentences on a related count (e.g., § 1512(a)(1)(C)), provided the jury actually found the elements beyond a reasonable doubt.
  • Witness tampering scope:
    • The Third Circuit underscores the breadth of § 1512(a)(1)(C): “any person” and information “relating to” a federal offense include eyewitnesses to the very federal crime the defendant created while silencing another witness.
  • Aiding-and-abetting instructions post-Rosemond:
    • Trial courts and counsel should ensure the jury is instructed that accomplice liability under § 924(c) requires advance knowledge of a gun. Ineffective-assistance claims based on such omissions will typically be reserved for collateral review.
  • Sentencing under § 924(j):
    • After Lora, district courts must exercise discretion on concurrency vs. consecutivity. Mandatory consecutive terms are error, and even “extra” time appended to a life sentence can require remand.

Complex Concepts Simplified

  • Title III (Federal Wiretap Law): A federal statute (18 U.S.C. §§ 2510–2522) regulating who may apply for and conduct wiretaps, under what procedures, and with what limits, to ensure accountability and prevent abuse.
  • § 2516(2): The provision specifying which state officials may apply for wiretaps. It defers to state law to identify the appropriate official(s) and any delegation rules.
  • Substantial Compliance: Courts ask whether the core purpose of a statute (here, accountability and careful use of wiretaps) was met, even if there were technical defects. If so, suppression is not required.
  • Constructive Amendment: When the trial’s proof or instructions effectively alter the charged offense’s terms, risking conviction for a different offense than the grand jury indicted. On plain-error review, relief depends on whether the error seriously undermined the proceedings’ fairness—often a high bar if the evidence on the charged theory is overwhelming.
  • “In Furtherance” (for § 924(c)): The firearm must advance or help forward the drug crime; courts look at factors like accessibility, proximity to drugs/money, type of weapon, whether stolen/illegal, and circumstances of discovery.
  • Apprendi/Alleyne: Any fact that raises the statutory maximum (Apprendi) or mandatory minimum (Alleyne) must be found by a jury beyond a reasonable doubt.
  • Rosemond (Aiding and Abetting § 924(c)): To convict an aider/abettor, the jury must find the defendant knew in advance that a gun would be used or carried so he could walk away or continue with eyes open.
  • Witness Tampering by Killing/Attempted Killing (§ 1512(a)(1)(C)): It is a federal crime to kill or attempt to kill another person with the intent to prevent the communication by any person to federal law enforcement of information relating to a federal offense.
  • § 924(j): Punishes causing death through the use of a firearm in relation to crimes of violence or drug trafficking. After Lora, it does not require consecutive sentences; judges have discretion.
  • Plain Error Review: A demanding four-part standard for unpreserved errors: error, that is plain, affecting substantial rights, and seriously affecting the fairness, integrity, or public reputation of judicial proceedings.

Conclusion

United States v. Perrin sets an important Third Circuit precedent on Title III’s state-authorization scheme: state law governs whether and how a state Attorney General may delegate wiretap-application authority, and Title III does not impose a freestanding federal “personal review” obligation on the delegating AG. The Court applied the substantial-compliance doctrine to uphold the wiretap because “authorization in fact” satisfied Title III’s accountability objective.

Beyond Title III, the decision reinforces core appellate doctrines: constructive-amendment claims will fail under plain-error review when the evidence on the charged predicate is overwhelming; cross-count jury findings can supply the facts Apprendi/Alleyne require; ineffective-assistance claims premised on jury instructions typically require collateral fact development; and § 1512(a)(1)(C) remains a broad, powerful witness-protection statute. Finally, the Court brings Third Circuit sentencing practice for § 924(j) into alignment with the Supreme Court’s decision in Lora by vacating a mandatory consecutive term and remanding for the exercise of discretion.

In sum, Perrin clarifies who may authorize state wiretaps under Title III within the Third Circuit, affirms robust tools to combat witness intimidation, and tightens sentencing practice to ensure fidelity to Supreme Court guidance. Prosecutors, defense counsel, and trial courts alike should adjust charging, instruction, and sentencing strategies accordingly.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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