Tuesday, December 10, 2013
Nothing new here: This per curiam decision merely holds that the defendant knowingly and voluntarily waived his right to appeal and that his appeal waiver is therefore enforceable.
In his plea agreement, the defendant promised not to appeal any prison sentence of 120 months or less, including any related issues with respect to the Sentencing Guidelines or the reasonableness of the sentence imposed. Though the defendant was sentenced to just 27 months of imprisonment, he appealed anyway, contending that the appeal waiver was either void or unenforceable.
The Circuit rejected the defendant's claims, holding that, in exchange for valid consideration, the defendant made a knowing, voluntary, and competent waiver of his appellate rights. No evidence showed that the sentence was reached in a manner that the plea agreement did not anticipate or that enforcement of the waiver would violate fundamental rights. Accordingly, the Circuit dismissed the appeal.
Commentary: The Circuit has long held that appeal waivers are generally enforceable. So it is unclear why the Court decided to publish this opinion, rather than simply issue a summary order. Perhaps the Court felt that a published opinion would more effectively discourage future efforts to avoid the effect of appeal waivers?
Magistrate Judge's Denial of Post-Trial Motions Not Reviewable on Appeal
UNITED STATES V. LAURIA (PAPPAS), NO. 13-269-cr (2D CIR. DEC. 10, 2013) (LIVINGSTON, CARNEY, AND KOELTL) (SUMMARY ORDER), AVAILABLE HEREThe Court in this summary order rejected for lack of jurisdiction a defendant's appeal from a magistrate judge's order denying various post-trial motions. The Court noted that a magistrate judge's general authority is derived from 18 U.S.C. § 636, which contemplates authority conferred by, among other things, referral from a district judge under certain provisions at subsection (b). In this case, it was unclear whether referral occurred pursuant to § 636(b)(1)(A), (b)(1)(B), or (b)(3), though it did not matter. Each provision required the district court to enter a final order, which never occurred. Absent such a final order, the magistrate judge's determinations were not reviewable on appeal.
Refusal to Quash Grand Jury Subpoenas Directed at Third Parties Is Not Immediately Appealable
United States v. Punn, No. 13-2780-cr (2d Cir. Dec. 6, 2013) (Pooler, Lynch, and Droney), available here
Today's summary comes courtesy of Francisco Celedonio, a noted criminal defense attorney and member of the Federal Defenders' Board of Directors:
Punn holds that an order denying a motion to quash grand jury subpoenas directed at third parties (on the ground that the subpoenas were issued solely to prepare for trial) is not immediately appealable.
A federal grand jury investigating Punn issued subpoenas seeking the testimony of Punn's two adult children. The subpoenas were issued while Punn's criminal case was at the motions stage. Punn moved to quash the subpoenas, arguing that they were issued for an improper purpose (assisting the government in its trial preparation). The district court denied the motion to quash, as well as a motion to reconsider, on the grounds that Punn lacked standing to raise constitutional issues of privilege on behalf of his adult children, and that he had failed to overcome the presumption that grand jury subpoenas are issued for proper purposes.
Punn immediately appealed, but the Circuit held that the order denying the motion to quash was not a final order and did not fall within the "collateral order" doctrine. Judge Lynch's opinion for the Court noted that Punn could challenge at trial the use of any evidence improperly obtained via the grand jury process and could appeal any adverse ruling following a final judgment. Accordingly, the Court dismissed Punn's interlocutory appeal.
Monday, December 09, 2013
Conspiracy Charges Barred by Statute of Limitations
United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Dec. 9, 2013) (Kearse, Jacobs, and Straub), available here
As we previously reported (at this link), on November 26, 2013, the Court issued a one-page order reversing the conspiracy convictions of Peter Grimm, Dominick Carollo, and Steven Goldberg. The order stated that an opinion would follow in due course. This is the promised opinion, in which the Court ruled, by a two-to-one vote, that the indictment was barred by the applicable statutes of limitations.
The three defendants, employees of General Electric Company ("GE"), conspired to fix below-market rates on interest paid by GE to municipalities. The conspiracy depressed the interest rate on the payments made to the municipalities by GE, an unindicted co-conspirator.
The appeal turned on whether the artificially reduced payments by GE to the municipalities constituted "overt acts" in furtherance of the conspiracy. If not, the prosecution was barred by the statutes of limitations. If the payments did constitute cognizable "overt acts," then the prosecution was timely.
Judge Jacobs's majority opinion held that the payments did not constitute overt acts in furtherance of the conspiracy. Relying on United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003), and United States v. Doherty, 867 F.2d 47 (1st Cir. 1989), the Court declared that a conspiracy ends (notwithstanding the continued receipt of anticipated profits) when (1) the payoff "merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions," and (2) no evidence shows "that any concerted activity posing the special societal dangers of conspiracy is still taking place."
These two criteria were present here. First, the payments by GE were lengthy, indefinite, ordinary, noncriminal, and unilateral. Second, the payments were the result of a completed conspiracy, rather than acts in furtherance of an ongoing conspiracy. The payments did not raise the underlying concern of concerted action, and therefore were not continuous actions that prolonged the life of the charged conspiracy.
Judge Kearse dissented. She concluded that the charged conspiracy was specifically designed to enable some of the conspirators to win investment contracts that provided them with economic gains over the life of the contracts by allowing them to make periodic interest payments at artificially low rates. In this situation, the dissent declared, the conspiracy continued until the contracting co-conspirator's final payment pursuant to the contract. Accordingly, the dissent opined, the GE payments were properly viewed as overt acts, and the prosecution was not time-barred.
Tactical Decision Not to Object to Condition of Supervised Release Waives Review of the Condition on Appeal
UNITED STATES V. PINNEY, NO. 12-3954-cr (2D CIR. DEC. 9, 2013) (KEARSE, JACOBS, AND STRAUB) (SUMMARY ORDER), AVAILABLE HEREThe Court in this summary order rejected the defendant's constitutional challenge to a condition of his supervised release. The defendant agreed to the condition being added to the terms of his release and waived his rights to a hearing and assistance of counsel prior to imposition. At a later sentencing hearing for violating that same condition, he never objected to the condition and only asked the district court to be lenient. The Court characterized the decision not to challenge the condition's "obvious" constitutional infirmities prior to sentencing as tactical. As a result, any objections to the condition were waived.
Friday, December 06, 2013
Involuntary Confession Erroneously Admitted at Conspiracy Trial Warrants New Trials for All Three Co-Defendants
UNITED STATES V. TAYLOR, ET. AL., NOS. 11-2201(L), 11-2426(CON), 11-2639(CON) (2D CIR. DEC. 4, 2013) (KEARSE, JACOBS, AND CARNEY), AVAILABLE HEREThis published decision vacated three defendants' convictions for conspiracy to commit Hobbs Act robbery of a Manhattan pharmacy in 2008 and brandishing of a firearm. The Court remanded for new trials after determining that interrogating agents took undue advantage of one defendant's diminished mental state and overbore his will in obtaining what was held to be an involuntary confession. The Court further held that admitting the tainted confession at trial, even with a limiting instruction, was not harmless beyond a reasonable doubt as to all three defendants.
According to the opinion, Vasquez drove Taylor, Rosario and a woman named Luana Miller to rob a pharmacy in Manhattan on Christmas Eve in 2008. With Miller already inside posing as a customer after hours, Rosario entered the pharmacy brandishing a gun and announced the robbery. Vasquez demanded OxyContin and along with Miller took controlled substances, cash and subway cards. All the while, Taylor remained a lookout at the front door with Vasquez waiting in the getaway car.
In January 2009, Miller was arrested on outstanding warrants. In hopes of benefitting, she cooperated regarding the pharmacy robbery. On April 9, 2009, the FBI and NYPD arrested Taylor at his apartment around 6:00 a.m. Taylor claimed he ingested a bottle-full of Xanax pills at that time as part of a suicide attempt. His interrogation began around 9:30 a.m. with Agents Burch and Tomas. Taylor signed a Miranda form and confessed. He provided a second confession to Tomas the morning of April 10 prior to arraignment.
At an evidentiary hearing on motions to suppress Taylor's statements, Burch testified that Taylor was coherent at times during the two to three hour interrogation on April 9, but also described how Taylor nodded off, how Taylor's body was shutting down, and how Taylor had to be "refocused" by agents. Post-interrogation, agents took Taylor to the hospital rather than the jail. According to Tomas, they questioned whether the Marshals Service would assume custody of someone who "might be off." Taylor slept the rest of the day at the hospital before going to the MCC that evening.
Witness testimony revealed that MCC psychologists examined Taylor the morning of April 10, at which time he exhibited a thought disorder, drooled, was vague, stared blankly and lacked spontaneity with his thoughts. With an impaired thought process, Taylor could not elaborate when asked questions. Taylor told doctors he tried to kill himself by ingesting Xanax.
Later that morning, Taylor proceeded to arraignment. Tomas testified that while awaiting a pretrial services officer, Taylor told him that he wanted to clear up issues about the charges. Tomas re-delivered Miranda warnings and Taylor confessed again. The pretrial services officer who then met with Taylor testified that Taylor appeared sleepy, had to be woken up for the interviewed, fell asleep several times during questions, but was awake and coherent at times.
The Court quickly held that Taylor's reading, acknowledging and signing an advice of rights form before making statements was a knowing and voluntary waiver of his Miranda rights. The evidence indicated that Taylor was lucid and knew what was going on at this time.
The Court held, however, that Taylor's statements were involuntary under the totality of the circumstances. Taylor could not summon the will to make a knowing and voluntary decision due to his Xanax ingestion. Taylor's body language and his falling asleep during the interrogation, as well as the agents waking him and "coaxing him" to answer questions and focus, all supported such a conclusion. Moreover, agents knew that Taylor was in and out of consciousness during the April 9 questioning and was in a trance or stupor when awake. Their persistent interrogation "took undue advantage of Taylor's diminished mental state."
The Court also held that the April 10 confession was involuntary under the totality of the circumstances, i.e., the effects of the Xanax, and that the taint from the first confession carried over to the second confession despite renewed Miranda warnings. Less than a day elapsed between the two confessions and Taylor was hospitalized during that time. Despite interrogation occurring at different locations, Tomas was present at both. Finally, agents, psychologists and the pretrial services officer observed Taylor either falling asleep or being mentally impaired that day.
The Court concluded that admitting Taylor’s involuntary statements at trial was not harmless beyond a reasonable doubt. First, the confession was critical to the government's case. Apart from the confession, the evidence against Taylor consisted of Miller's testimony and GPS telephone data. Miller's criminal history and the benefit she sought by cooperating subjected her testimony to attack. Though GPS evidence may have corroborated Miller's version of their whereabouts, no other witness or evidence linked Taylor to the robbery. Second, the prosecution emphasized Taylor's confessions throughout trial. Third, the confessions were important to the case because they corroborated Miller’s testimony. Fourth, the confessions were not cumulative to Miller's testimony because a confession has a greater impact at trial than witness testimony.
Despite the district court’s limiting instruction regarding the use of Taylor’s statements against Taylor and not his co-defendants, the Court ultimately held that the erroneous admission of Taylor's confessions was not harmless error in Rosario and Vasquez’s trials. Though the Court normally assumes that jurors follow limiting instructions, it explained that "a confession by one co-defendant in a joint trial poses substantial risk for the other co-defendants notwithstanding such an instruction."
Because the government’s case relied "chiefly" on Taylor’s statements and "drew its strength" from those statements against Rosario and Vasquez respectfully, the confession was critical. Due to the remaining evidence being impeachable or inconclusive as to Rosario and Vasquez’s involvement in the robbery, the confession’s admission at their trial was not harmless error.
CONGRATULATIONS TO FDNY’S COLLEEN CASSIDY ON HER VICTORY FOR HER CLIENT MR. VASQUEZ!
Tuesday, December 03, 2013
2011 Sentence for 1968 Pan Am Hijacking Was Not Reviewable on Appeal
UNITED STATES V. SOLTREN, NO. 12-4755-cr (2D CIR. DEC. 2, 2013) (KEARSE, JACOBS, AND PARKER) (AMENDED SUMMARY ORDER), AVAILABLE HEREOn appeal a second time from the imposition of sentence, this defendant challenged the district court's decision to impose fifteen years' custody with the possibility of parole after five years as procedurally and substantively unreasonable pursuant to Booker. He pleaded guilty to conspiracy to commit air piracy and kidnapping based upon his participation in the hijacking of a 1968 Pan American Airways flight from New York to Puerto Rico. He remained in Cuba until returning to the United States in 2009, at which time he was arrested. The district court first sentenced him to fifteen years' custody without the possibility of parole, which was vacated. The Court held it was error to impose a sentence that excluded the possibility of parole because it was a benefit that was available for crimes committed in 1968. Unfortunately for the defendant's second appeal, Booker's appellate standard of review was not. In pre-Guidelines cases, a sentence may not be reviewed on appeal if it is within the permissible statutory limits and no improper factors were taken into account. For offenses that pre-dated the Sentencing Guidelines, the Court can only vacate a sentence if founded in part upon misinformation of constitutional magnitude. Because the sentence was within the statutorily authorized range and the district considered proper factors, it could not be reviewed.
Supervised Release Condition Infringing Parental Rights Required Remand
United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here
The defendant was convicted of using a facility of interstate commerce to persuade a 15-year-old and a person he believed to be a 13-year-old to engage in illegal sexual activity. He was sentenced principally to 151 months of imprisonment and twenty years of supervised release. One of the "special conditions" of supervised release prohibited the defendant from having unsupervised contact with persons under the age of 18, including his two minor sons.
On appeal, the defendant first argued that the district court erred by adding five offense levels to his guidelines range under U.S.S.G. § 4B1.5(b), based on "a pattern of activity involving prohibited sexual conduct." The Circuit disagreed, holding that the defendant engaged in "prohibited sexual conduct" on "at least two separate occasions," thus establishing the requisite "pattern." The offense of conviction established one of the two separate occasions, and the district court properly found that the defendant had used internet accounts over several years to convince about ten other boys to send him pornographic images of themselves. Thus, the five-level enhancement for a "pattern" of improper sexual activity was appropriate.
The defendant had more success with his second argument: that the special condition of supervised release restricting his contact with his own children unreasonably infringed upon his rights as a parent, and was imposed without a specific finding that such a measure was necessary. Though the Circuit found some evidence that oversight of the defendant's relationship with his sons is warranted, the district court failed to engage in an "individualized inquiry" into whether the defendant posed a threat to his sons. Without such an inquiry, the "harsh condition" imposed by the district court violated the defendant's due process rights. The panel remanded so that the district court could modify the special condition or make specific findings to justify the special condition.
District Court Properly Denied Motion to Suppress
United States v. Cardona, No. 12-4612-cr (2d Cir. Dec. 3, 2013) (Kearse, Jacobs, and Parker) (second amended summary order), available here
Convicted after trial of cocaine trafficking, the defendant argued on appeal that the district court should have suppressed various pieces of evidence because his arrest and the ensuing search of his vehicle lacked probable cause. The Circuit disagreed, holding that law enforcement officers properly relied on information provided by another man, Morales-Gomez, who claimed (upon being arrested for drug possession) that he was to deliver 30 kilograms of cocaine to the defendant. Though the officers had not previously worked with Morales-Gomez, they verified many details of his account, including his description of the defendant, the defendant's nationality, the specifics of the defendant's criminal record, as well as where he lived and what car he drove. The corroboration of these "innocent" details, the Court wrote, gave sufficient reason to believe the criminal aspects of his story. And Morales-Gomez participated directly in the sting operation that led to the defendant's arrest, making his information more reliable because he ran the risk that he would be held accountable if his information proved false.
The defendant's own actions also corroborated Morales-Gomez's account. For example, the officers heard and recorded phone calls in which the defendant and Morales-Gomez arranged a drug meeting. Based on this and other information, the officers had probable cause to arrest the defendant.
The panel also rejected the defendant's argument that the officers lacked probable cause to believe that the defendant's car contained incriminating evidence, including money, cellular phones, or weapons.
Further, the panel held that the protective sweep of the defendant's wife residence following his arrest was not invalid. The officers had reason to believe that the defendant had associates at the residence who could have posed a threat to the officers or to any evidence therein.
Finally, the panel held that the subsequent search of the wife's residence was not improper. The district court found that the wife validly consented to the search. The Circuit determined that this factual finding was not clearly erroneous.
Monday, December 02, 2013
Circuit Reverses Conspiracy Convictions One Week After Oral Argument
United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Straub) (unpublished one-page order)
In a one-page order dated November 26, 2013, just one week after hearing oral argument, the Court reversed the conspiracy convictions of Steven Goldberg, Peter Grimm, and Dominick Carollo. The three men had been convicted of participating in a conspiracy to commit wire fraud and to defraud the Internal Revenue Service in connection with a scheme to bid for and win contracts known as guaranteed investment contracts from municipal bond issuers at artificially determined or suppressed rates.
The order does not state the reasons for the reversals, but indicates that an "opinion will follow in due course." The main issue on appeal concerned whether the government had proven that any overt acts were committed in furtherance of the charged conspiracy within the applicable statute-of-limitations period.
Stay tuned: We will summarize the Court's written opinion when it is released.
Defendant Not Entitled to Writ of Audita Querela
United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here
A writ of audita querela is an extraordinary remedy under the All Writs Act, 28 U.S.C. Section 1651(a), and is generally available only if the absence of any avenue of collateral attack would raise serious questions about the laws limiting those avenues. The writ is generally not available to review a criminal conviction if the petitioner could have raised his or her claims in a motion under 28 U.S.C. Section 2255.
Quintieri sought the writ because, at his sentencing for possessing a counterfeit check, his attorney requested (and obtained) a prison sentence of a year-and-a-day (366 days), rather than a year-minus-a-day (364 days). Quintieri claimed the lower sentence would have not subjected him to automatic removal from the United States for having committed an aggravated felony.
The panel held that the extraordinary writ of audita querela was not available because Quintieri's claim -- essentially one of ineffective assistance of counsel -- could have been raised on direct appeal or under Section 2255.
Commentary: A sentence of a year-and-a-day is often better for a defendant than a sentence of a year because the additional day potentially renders the defendant eligible for "good time" credit while in prison. See 18 U.S.C. Section 3624(b) (BOP may award good-time credit "to a prisoner who is serving a term of imprisonment of more than 1 year"). If the defendant ultimately receives "good time" credit, an imposed sentence of a-year-and-a-day will result in an actual sentence served of only about ten months. Despite this benefit, this summary order suggests that sometimes a sentence of 364 months will be in a non-citizen defendant's best interests, because of the immigration consequences.
Conviction for Drug Trafficking Conspiracy Affirmed Over Claims of Instructional Error and Prosecutorial Misconduct
UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HEREThis detailed summary order affirmed defendant's conviction after trial for a drug related conspiracy and denied seven separate claims of error. First, the Court disagreed with the defendant's jury selection challenge, which alleged that the trial court erroneously instructed the jury on how to judge accomplice witness testimony. The trial court told jurors during jury selection that all testimony, even that of accomplice witnesses, must be accorded the same weight at trial. Though at odds with the correct standard for evaluating accomplice witness testimony, i.e., drawing the jury's attention to the possible motivations of accomplice witnesses and instructing jurors to examine those motivations when determining credibility, the error did not prejudice the defendant. When discussing how to judge witness testimony, the trial court also explained that the trial judge would instruct jurors about the proper standard before deliberations, which it did in "thorough and correct instructions." The jury selection also occurred two weeks before deliberations, which suggested jurors may not have recalled it during deliberations. In addition, defense counsel challenged the credibility of accomplice witnesses at trial and made the jury aware of the need to carefully scrutinize their testimony, as did the prosecutor.
Second, and because of this lack of prejudice, the Court rejected the defendant's ineffective assistance of counsel claim due to his attorney's failure to object to the erroneous instruction.
Third, the Court upheld the trial court's multiple conspiracies instruction, which it gave in lieu of the defendant's requested instruction. The trial court's instruction stressed that jurors must find that the single conspiracy charged existed and that the defendant knowingly participated in that conspiracy. It also told jurors they must acquit if the conspiracy charged did not exist or if the defendant engaged in a separate, uncharged conspiracy. This wording satisfied the requirements for a multiple conspiracies instruction.
Fourth, the Court did not construe the prosecutor's closing arguments as inappropriate vouching or a flagrant abuse affecting substantial rights requiring reversal, but cautioned their delivery. The prosecutor argued to jurors that "we" searched for a co-conspirator with character "above reproach," but could not find one. The prosecutor then stated "I submit to you no such person exists." The remarks did not suggest jurors should trust the government's assessment of the witnesses' credibility rather than their own or that the prosecutors possessed information not presented at trial. The remarks were a permissible response to defense counsel's repeated attacks on the accomplice witnesses' credibility with the prosecutor even acknowledging their credibility problems. The Court cautioned that the remarks cold have been interpreted as providing unsworn testimony without any evidentiary foundation about the government's investigation. The Court held that the statements were presumably intended and likely taken as rhetoric on the government's theme at trial and did not mislead the jury.
Fifth, the Court held that no Brady violation occurred based upon the government's failure to produce four witnesses' statements, which according to the defendant disproved his having trafficked with a particular cartel. The defendant failed to prove that one witness possessed such information. Further, no evidence demonstrated that the defendant's lawyer was unaware of the potential testimony of the other three witnesses prior to trial or that the prosecutors attempted to conceal the existence of these witnesses or any of their statements. Finally, there was no indication that the defense would have called these witnesses given the trial strategy and, even if called, nothing indicated their testimony would have led to a different result.
Sixth, the Court held that no prosecutorial misconduct occurred before the grand jury due to the use of hearsay testimony because the prosecutor did not mislead the grand jurors. The prosecutor provided a detailed introductory statement about the nature of the witness's testimony, that it would included hearsay, and that the witness did not personally witness things being discussed. The witness's testimony made all this clear as well. The prosecutor further told the grand jury that it could request witnesses with first hand knowledge and could review complete transcripts of earlier witnesses' testimony. Finally, the Court held it was likely that the defendant would have been indicted if solely non-hearsay evidence had been used.
Seventh, the Court rejected the defendant's claim that his conviction violated the Rule of Specialty. The defendant had been extradited from Colombia pursuant to a Colombian Diplomatic Note, which authorized extradition on the condition that he not be tried using pre-December 17, 1997 conduct. Without addressing whether the defendant had standing to challenge any alleged violations of the note, the Court held that the jury did not rely on such conduct in rendering its verdict.
Wednesday, November 27, 2013
Refusal to Allow Defendant to Present Surrebuttal Evidence Requires New Trial
United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available hereThis published decision holds that the district court's refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied him his right to present a meaningful defense. Judge Hall dissents.
A jury found Murray, a firefighter, guilty of four counts relating to the cultivation of marijuana plants in the basement of a Bellerose, Queens, home owned by Cody, a fellow firefighter who knew Murray. The trial was essentially a credibility contest between Cody, who pled guilty and testified for the government, and Murray, who testified in his own defense. Cody claimed that Murray hatched the idea of growing marijuana in Cody's house and that Murray was intimately involved in the crime. Murray, in contrast, testified that he knew nothing of the marijuana and visited Cody's home only about five to seven times to do construction work there.
To rebut Murray's testimony, the government presented cell site records for Murray's phone showing that approximately 100 calls bounced or "pinged" off a cell tower near Cody's house during the relevant three-month period. The implication was that Murray had lied about visiting Cody's home only a few times.
The defense sought to present a surrebuttal witness to show that Murray was in the presence of the cell tower for reasons other than to visit Cody's house. The district court refused to allow the witness to testify, holding that the cell phone evidence did not meaningfully incriminate the defendant because the jury had previously learned that such evidence did not necessarily mean that the defendant was at (or even near) Cody's house.
The court of appeals held that the refusal to allow the surrebuttal evidence was an abuse of discretion that required a new trial. First, the Court rejected the government's argument that Murray had a full opportunity to present the evidence in question on his direct case and therefore had no right to a "second chance" on surrebuttal. Judge Leval's majority opinion ruled that "[u]ntil the government offered the cell tower evidence on its rebuttal case, the question whether Murray did or did not make other visits to the general area of Cody's house had no relevance whatsoever to any issue being tried."
Second, the Court disagreed with the district court's ruling that the surrebuttal evidence was unnecessary because the government's cell site evidence was not meaningfully incriminating. The Court noted that the government had repeatedly emphasized the cell tower evidence in summation, and that the evidence "easily could have influenced the jury" to reject Murray's testimony and accept Cody's. Accordingly, the refusal to allow the defense to rebut the evidence was not harmless.
Judge Hall, dissenting, would affirm the conviction on the ground that the government's cell tower evidence did not raise a "new issue" that the defendant was entitled to counter on surrebuttal.
Remand Order for Re-Sentencing Did Not Support De Novo Re-Sentencing
UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE
This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal. The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for acceptance of responsibility, which the defendant received. In his second appeal, the defendant asserted procedural error based upon the district court's refusal to hold a new Fatico hearing on marijuana quantity before re-sentencing and its subsequent imposition of more than one year's custody despite a jurisdictionally defective indictment, which failed to identify the substance at issue. The Court rejected both claims.
The Court held that its remand order required only a limited, not de novo, re-sentencing hearing. The mandate did not "unequivocally" call for de novo re-sentencing and the "spirit" of the order did not clearly convey such an intent. It vacated only the sentence and not the underlying conviction, identified a specific error to be corrected and rejected other arguments raised on appeal, which would not have been done if the Court intended for de novo sentencing. Due to the limited nature of the re-sentencing, the law of the case doctrine foreclosed re-litigation of waived or already decided issues unless either of two exceptions applied. The defendant could not show that the marijuana quantity issue, which he deliberately bypassed at the first sentencing and Fatico hearing, became relevant to the re-sentencing.
The indictment also was not defective and the sentence was procedurally reasonable. The omission alleged by the defendant did not create any jurisdictional defect given the federal offense charged and his guilty plea waived any non-jurisdictional defects. Regardless, the indictment identified the controlled substance involved and the defendant admitted at the plea allocation that his conduct involved cocaine.
Tuesday, November 26, 2013
False Statement Conviction Affirmed Over Claims of Instructional Error and Prosecutorial Misconduct
UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE
The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors. First, he was deprived of a fair trial when the prosecutor acted as an "unsworn witness" by eliciting testimony about the prosecutor's decision not to call the defendant as a grand jury witness in a murder investigation because the defendant falsely disavowed a prior statement to law enforcement regarding the murder. Second, the district court delivered an erroneous materiality instruction, which told the jury that materiality depended on whether the false statement "could have influenced" the government's decision. The defendant argued that the proper instruction was whether the false statement "had the natural tendency to influence" that decision. Third, the prosecutor made improper remarks during closing argument by using "we" and "our" when discussing the false statement's impact on the government's decisions and murder prosecution, by arguing that government witnesses could have devised more convincing lies if they had decided to fabricate their version of events for trial, and by telling jurors they would have to conclude that government witnesses lied after swearing to tell the truth in order to credit the defense. The Court denied all three claims, and reviewed the first two for plain error.
First, the Court assumed that elicitation of the testimony was improper, but held that the challenged testimony did not affect the outcome of the trial. The testimony was not sufficiently integral to the materiality of the defendant's false statement to cause prejudice. Furthermore, the defendant did not demonstrate a reasonable probability that the jury would not have found his false disavowal of his prior statement had the tendency of capability to influence the government's investigation of the murder.
Second, the Court "generously" assumed that the instruction was erroneous, but held that the error was not plain. According to the Court, the defendant's false disavowal had the "natural tendency to influence" the government's investigation of the murder. As a result, the defendant did not demonstrate that the error affected his substantial rights.
Finally, the Court assumed that the closing remarks were improper, but held they did not substantially undermine the certainty of the conviction. Accordingly, the defendant could not satisfy this particular prong of the test used to determine whether inappropriate remarks constituted prejudicial error.
Defendant Gave Implied Consent to Seizure By Disclosing Location of Gun
United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available hereThe panel held that the seizure of a firearm from the defendant's room did not violate the Fourth Amendment because he gave "implied consent" to the seizure.
The district court found that, by telling police officers the precise location of the gun, the defendant implicitly consented to them seizing it. The court also found that such consent was given voluntarily.
The Circuit, finding no clear error in these findings, affirmed the denial of the defendant's motion to suppress.
Fair Sentencing Act Does Not Apply to Defendants Sentenced Prior to August 3, 2010
United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available hereThis summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).
The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit's contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett "arguably contradicted" binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be "wrongly decided" and that every circuit to consider Blewett "has declined to follow its lead."
District Court Committed No Plain Error in Setting Plea Deadline for "Acceptance Points" or Imposing Restitution Beyond Amount in Plea Agreement
United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available hereDoyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for "acceptance of responsibility points" and that, if he intended to plead guilty, he should do so "before June 21" so that the could receive the extra third point for acceptance of responsibility.
The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 "deadline" and had not shown a reasonable probability that he would have gone to trial but for the challenged comments.
The panel also found no reversible error in the government seeking, and the district court ordering, $880,000 in restitution even though the plea agreement indicated only $105,000 in restitution. The Court noted that the plea agreement stated a forfeiture amount of $880,000, and that, in raising the restitution figure to match the forfeiture amount, the district court made clear that the defendant's combined financial obligation under the forfeiture and restitution orders was capped at $880,000, a forfeiture amount the defendant did not challenge. Accordingly, the district court merely chose to channel the $880,000 the defendant owed to the government to the victim. "Changing to whom he owed it did not affect Doyle's substantial rights or the fairness of the proceeding."
Search and Seizure of Laptop Computer Did Not Violate Fourth Amendment
United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available hereConvicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.
The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had "viewed the Sample Pictures folder" on the computer, which contained a "lascivious" image.
Second, though the government's delay in seeking the federal search warrant was "quite lengthy," it was not constitutionally unreasonable because the delay resulted from error rather than lack of diligence, the defendant had a "diminished" possessory interest in the computer, and the government had a "strong interest" in retaining the laptop.
Finally, the Court rejected the defendant's claim that the federal search warrant was not based on probable cause. The affidavit in support of the warrant noted, among other things, that witnesses reported seeing titles of files on the defendant's computer indicating that the files contained sexually explicit images of children. Accordingly, officials had probable cause to believe that the defendant's laptop contained child pornography.