Monday, November 24, 2014
Prior to defendant’s trial in D. Vt. (Crystal pleaded guilty), the district court (Reiss, C.J.) granted defendant’s motion to suppress the drugs, ruling that their admission would violate defendant’s substantive due process rights because they were obtained by law enforcement conduct that shocked the conscience.
On appeal, the government conceded that the troopers’ conduct violated Crystal’s Fifth Amendment substantive due process rights, but argued that defendant could not base a substantive due process claim for suppression on what happened to his wife. Relying on United States v. Payner, 447 U.S. 727, 735-37 n.9 (1980) (“[T]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant.”), the Circuit agreed and reversed. In the Circuit’s view, Payner “precludes suppression, on substantive due process grounds, of physical evidence obtained through a flagrantly illegal search directed at someone other than the defendant.” (slip op., at 11).
The Circuit left open the possibility that substantive due process might sometimes require suppression of physical evidence obtained through outrageous government conduct against a third party. Such conduct, however, would have to be “torture” or otherwise “so beyond the pale of civilized society that no court could countenance it.” (slip op, at 12). Finally, rejecting defendant’s alternative argument for affirmance, the Circuit held that suppression was not authorized in the exercise of the district court’s supervisory powers, where suppression was not compelled by the Fifth Amendment.
Sunday, November 23, 2014
Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On "Different Occasions" Under ACCA
United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here
The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a defendant “has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” In this case, the Circuit held that in determining whether prior offenses were “committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005). That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding by the trial court to which the defendant assented. However, it is plain error for a district court to consider (as the court did here) non-Shepard court records, parole records, local PSRs, arrest reports, criminal complaints, or a federal PSR that incorporates information drawn from these sources.
Defendant pleaded guilty to felon in possession. He had three prior New York State robbery convictions, two of which arose from conduct that occurred on the same day. After reviewing non-Shepard materials -- in particular, criminal complaints attached to defendant’s sentencing submission -- indicating that the two robberies occurred an hour and a half apart, in different boroughs, and involved different victims, the district court (Garaufis, J.) determined that the robberies had been committed on “different occasions” for ACCA purposes. Defendant did not raise a Shepard objection.
On appeal, the Circuit found plain error and reversed. The Circuit noted that under Taylor/Shepard, a district court is limited to conclusive judicial records in determining whether a prior conviction is a “violent felony” for ACCA purposes, and saw no reason to apply a different rule in determining whether prior convictions were committed on “different occasions.” On the contrary, maintaining the same rule would minimize judicial fact-finding and avoid the Sixth Amendment problems that would result from enhancing a sentence based on judge-found facts about the nature of prior convictions. The error affected defendant’s substantial rights, as well as the fairness and integrity of judicial proceedings, because it increased his mandatory minimum sentence from 0 to 15 years and his Guidelines range from 92-115 to 168-210 months. Defendant’s submission of and reliance on the New York criminal complaints was immaterial because the government always bears the burden of proving the applicability of an ACCA enhancement with Shepard-approved documents.
The Circuit did not foreclose the possibility that a district court could consider a PSR “derived in whole, or in large part,” from Shepard-approved documents. Likewise, the Circuit acknowledged that materials provided in the parties’ sentencing submissions or incorporated into the PSR might be analogous to Shepard-approved documents, and remanded for the district court to consider that possibility in this case.
[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Zephaniah Dantzler, in this case.]
Wednesday, November 05, 2014
Acceptance of Guilty Plea to Gun Charge Based on Different Weapon From the One Specified in the Indictment Was Not Plain Error
United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available hereDefendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court's acceptance of the plea constructively amended the indictment and that the court's failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.
Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases from other circuits (and from the Second Circuit) "counsel to the contrary." Judge Lynch's opinion for the Court states, "[T]his Court has never held that substituting a different weapon than that charged in the indictment constructively amends a § 924(c)(1) charge and indeed our cases have suggested that, in general, it does not."
Accordingly, because "the operative legal question is unsettled," defendant could not establish that any error was "clear or obvious" under current law, as required to show plain error. Similarly, because it was unclear that defendant even had a right to a superseding indictment, "it cannot have been plain error for the court not to have advised him of such a right, or sought its waiver." "At most," the Circuit concluded, "the district court failed to identify a novel legal issue that neither party brought to its attention, an omission that does not meet the standard of a plain error calling for relief from this Court."
Tuesday, November 04, 2014
District Court Properly Admitted Evidence of Witnesses' Beliefs That Defendants Were Connected To Organized Crime
United States v. Fazio, Nos. 12-3786-cr, 12-3799-cr, 12-3874-cr (2d Cir. Oct. 22, 2014) (Walker, Leval, and Wesley), available hereAnthony Fazio, Sr., Anthony Fazio, Jr., and John Fazio, Jr., were officers in Local 348 of the United Food and Commercial Workers International Union. They allegedly demanded that business owners employing Local 348 members make payments to the Fazios "to ensure a good working relationship with the union." The government claimed that the Fazios' demands for money were accompanied by threats of economic and physical harm.
Following a jury trial in the Southern District of New York (Forrest, J.), defendants were convicted of all counts, which included racketeering conspiracy and extortion conspiracy. On appeal, they challenged: (1) a ruling admitting evidence that certain witnesses believed that defendants were connected to organized crime, (2) the denial of a requested jury charge that the "fear" element of extortion cannot be satisfied by a threat of loss of economic advantage to which the victim was not legally entitled, and (3) the dismissal during trial of a juror.
The Court rejected all three contentions and affirmed the convictions. First, the Circuit held that the district court properly admitted evidence that the defendants had a reputation for being connected to organized crime. Such evidence was relevant to the fear reasonably experienced by the victims, an element of extortion.
Second, the district court properly refused to instruct the jury that it could not find the "fear" element of extortion unless the victim feared losing an advantage to which he was legally entitled. "This instruction," the Circuit held, "misstates the law." The Court wrote: "None of our precedents require that the economic advantage that the victim fears losing to have been legally obtained by the victim. Our cases require simply that the victim be coerced into making the payments out of a reasonable fear of economic harm."
Finally, the district court did not abuse its discretion by dismissing a juror. The juror had repeatedly violated the court's instructions, thus providing "reasonable cause to believe that the juror could no longer serve according to her oath." Accordingly, dismissal of the juror was proper.
Thursday, October 30, 2014
Admission Of Defendant's Social Media Profile Was Error Absent Sufficient Authentication
United States v. Zhyltsou, No. 13-803-cr (Wesley, Livingston, and Lohier), available here
At defendant’s trial for unlawful transfer of a false identification document, the government introduced a printed copy of a webpage that it claimed was defendant’s profile page from the Russian social network VK.com. The printout contained defendant’s photograph, as well as information (defendant’s Skype ID, places of employment, and birthplace) that corroborated testimony of the cooperating witness on whom the government’s case depended. In particular, the profile listed defendant’s Skype ID as “Azmadeuz,” which was significant because the false identification document at issue had been emailed to the cooperating witness from the address “email@example.com.” A State Department special agent testified that he had printed the profile page off the Internet, but acknowledged that he did not know who had created the page. Defendant objected, contending that the page had not been authenticated as his, so the printout was inadmissible under Federal Rule of Evidence 901. The district court (Glasser, J.) disagreed, ruling that the webpage was defendant’s and it was “fair to assume” that the information it contained “was provided by him.”
Following defendant’s conviction, the Circuit reversed, concluding that there was insufficient evidence to authenticate the profile page as defendant’s. Although there was information about defendant on the page, there was no evidence that defendant himself created the page or was responsible for its contents. Had the government introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him,” the Circuit reasoned, “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].” The same was true here, but “the mere fact that a page with [defendant’s] name and photograph happened to exist on the Internet” at the time of trial “does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The Circuit noted that the contents or “distinctive characteristics” of a document can sometimes provide circumstantial evidence sufficient for authentication under Rule 901(b)(4), but only where the contents of the document are “obscure” enough that they are “not a matter of common knowledge.” Here, the information about defendant was general and known to people with motives to create a false page, including the cooperating witness. Nor was there evidence that identity verification was necessary to create the profile page.
The error was not harmless because the only evidence linking defendant to the false identification document at issue was the profile page and the cooperating witness’s testimony. The cooperator’s credibility was questionable because he had pleaded guilty to three felonies involving deceit, and the jury could have believed that the cooperator had used his own expertise in fabricating identities and documents to create false evidence substantiating his testimony against defendant. The profile page, in particular, the “Azmadeuz” Skype ID, corroborated the witness’s testimony on the principal contested issue at trial, namely, that the “firstname.lastname@example.org” account that sent the false identification document was defendant’s.
[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Aliaksandr Zhyltsou, in this case.]