Monday, July 28, 2014
Convicted of filing a false corporate tax return, Park was sentenced to three years' probation, including six months' home detention. The district court (Judge Block) explained that it was imposing this sentence -- below the 15-to-21 month Guidelines range of imprisonment -- solely because of the "government shut-down" in place at the time of sentencing. The court said that it was not imposing imprisonment "only because of the economic plight that we are facing today."
On the government's appeal, the Circuit held that the probationary sentence was both procedurally and substantively unreasonable. On the procedural side, the district court erred by considering only the cost of incarceration, rather than all of the sentencing factors set forth in 18 U.S.C. § 3553(a). Indeed, the Circuit held, the court should not have considered the cost of incarceration at all, because that factor is not an appropriate basis for deciding whether imprisonment is warranted. "We conclude," the Court wrote, "that the cost of imprisonment is not a sentencing factor enumerated in § 3553(a), nor is it an additional factor upon which district courts may rely in deciding whether to impose a term of incarceration under 18 U.S.C. § 3582(a)."
The Circuit also held that a probationary sentence was substantively unreasonable, at least on the existing record. "We . . . hold that, in light of the need for deterrence and just punishment and the District Court's own conclusion that, based on the record before it, a term of imprisonment was warranted, the probationary sentence imposed here was substantively unreasonable." The Circuit emphasized that its decision was based on "the record currently before us," and that imposition of a probationary sentence again on remand, after proper consideration of the § 3553(a) factors, would not necessarily be substantively unreasonable.
Admission of Lineup Identification of Defendant Was, At Most, Harmless Error
United States v. Reed, No. 13-0359(L) (2d Cir. June 25, 2014) (Jacobs, Calabresi, and Pooler), available here
Reed was convicted after trial of various federal charges arising from the shooting and attempted robbery of a rival drug dealer. Reed argued on appeal that the district court should have suppressed a state court lineup identification of him as the assailant, on the grounds that the lineup was conducted in violation of his Sixth Amendment right to counsel.
On appeal, the Circuit found it unnecessary to decide whether the lineup identification should have been suppressed, holding that its admission at trial was harmless beyond a reasonable doubt. The Court concluded that the independent evidence linking Reed to the shooting and robbery was overwhelming and that the jury necessarily credited the testimony of a cooperating witness identifying Reed as a participant in the charged crimes. The Court also noted that one of the victims had fingered Reed as the assailant in a photo array nearly 18 months prior to the questionable lineup, thus rendering the lineup identification "merely cumulative." Accordingly, the Court affirmed Reed's convictions.
Supreme Court's Peugh Decision Not Retroactive To Cases on Collateral Review
Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here
Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court's decision in Peugh v. United States, 133 S. Ct. 2072 (2013). The Circuit, however, denied leave, holding that the rule announced in Peugh was not "a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h)(2).
Peugh held that a "retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation." 133 S. Ct. at 2804. In seeking leave to file a successive § 2255 motion based on Peugh, petitioner contended that the case announced "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2).
The Circuit rejected petitioner's argument. Though Peugh arguably announced a new rule of constitutional law, the Circuit held, the Supreme Court has not yet made the Peugh rule retroactive to cases on collateral review. Peugh did not establish a "watershed rule of criminal procedure" that "alter[s] our understanding of the bedrock procedural elements" of the adjudicatory process. Nor did Peugh place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague v. Lane, 489 U.S. 288, 311 (1989). Instead, Peugh "simply changed the discretion afforded to judges in determining which Guidelines to apply at sentencing." Accordingly, the Circuit held, it could not authorize the filing of petitioner's successive § 2255 motion under Peugh.
Thursday, June 19, 2014
Evidentiary Error and Government Misconduct Required New Trial
United States v. Certified Environmental Services, Inc., No. 11-4872(L)-cr (2d Cir. May 28, 2014) (Raggi, Carney, and Rakoff), available here
Defendants, consisting of an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor, were convicted collectively of 15 counts of conspiracy, mail fraud, and false statements. The charges related to a scheme to violate various state and federal environmental regulations and to certify falsely that proper air monitoring had been conducted.
The appealing defendants argued that (1) the district court improperly excluded evidence that they acted in the good-faith belief that they were complying with applicable state regulations; and (2) the prosecutors engaged in misconduct.
The Circuit agreed, holding that the district court erred by excluding the proffered evidence of good faith, and that, as the government conceded on appeal, the prosecutors committed multiple instances of misconduct throughout the trial. The misconduct included: (1) improper bolstering of government witnesses based on their cooperation agreements; (2) improper vouching in summation; (3) improper extra-record references in rebuttal summation; and (4) improper appeals in rebuttal summation to the consequences the jury's verdict would have.
The Court also found the prejudice resulting from the district court's erroneous evidentiary ruling and the prosecutors' misconduct sufficient to violate the defendants' right to fair trial. The panel noted that "evidentiary errors and prosecutorial misconduct infected every stage of the trial," that the improprieties were "not insubstantial," and that the curative measures taken by the district court were not sufficient to eliminate the prejudice. The Court also stated that, though the government's case was "quite strong," it was "not overwhelming." Accordingly, the Court vacated the convictions and ordered a new trial.
Finally, on a sentencing appeal by the government with respect to two non-appealing defendants, the Court held that the district court miscalculated the amount of restitution and committed procedural errors in determining the applicable guidelines range. Resentencing was therefore required for these two defendants.
Commentary: This is one of those rare situations where the Circuit reverses based (in part) on prosecutorial misconduct. Judge Rakoff's opinion for the Court contains great language regarding the rules against bolstering, the bounds of permissible summation, and the importance of the defendants' evidence of good faith.
Wednesday, June 18, 2014
Evidence of Domestic Transactions Was Sufficient To Sustain Securities Fraud Convictions
United States v. Mandell, No. 12-1967-cr(L) (2d Cir. May 16, 2014) (Wesley, Carney, and Wallace) (per curiam), available hereRoss Mandell and Adam Harrington were convicted, after a jury trial, of various substantive and conspiratorial counts of securities fraud, wire fraud, and mail fraud. Mandell was sentenced principally to 144 months in prison; Harrington got 60 months.
The defendants' central contention on appeal was that the government failed to present sufficient evidence of domestic securities transactions under Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and United States v. Vilar, 729 F.3d 62 (2d Cir. 2013). The Circuit disagreed, citing evidence that certain investors in certain transactions were required to submit purchase applications and payments to a company in the United States. The Court, viewing the evidence in the light most favorable to the government, held that a rational jury could have found the essential elements of the offenses, including the domestic nature of the fraudulent transactions, beyond a reasonable doubt.
The Circuit also rejected the defendants' challenge to the jury instructions regarding extraterritoriality. The Court appeared to agree that the instructions were flawed under Morrison, but concluded that the error was harmless because the evidence of domestic fraud was sufficient to convict, "which means that if the jury had been instructed [properly], it would still have necessarily reached the verdict it did."
The Court went on the reject the defendants' other challenges to their convictions, including claims that the jury should have been instructed regarding foreign law, that the jury instructions improperly allowed the jury to convict absent an "actual misrepresentation," that the evidence was insufficient to establish any "material misrepresentation" or a duty to disclose commission payments, and that witnesses were improperly allowed to testify that certain conduct was illegal.
Finally, the Court upheld the reasonableness of the defendants' sentences, except for a forfeiture order, which should have made the defendants jointly and severally liable.
Commentary: This decision contains a serious legal error. The panel held that the apparently flawed instruction under Morrison was harmless simply because the evidence was sufficient to convict when viewed most favorably for the government. The sufficiency standard, however, has no place in harmless-error analysis. The question in harmless-error analysis is not whether any rational juror could have convicted the defendants absent the error, but rather whether the error likely affected the defendants' "substantial rights" by influencing the actual jury's decision. "The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). And the Supreme Court has expressly declared that "harmless-error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry." United States v. Lane, 474 U.S. 438, 450 n.13 (1986).
In light of these Supreme Court decisions, the Circuit was wrong to hold that the alleged instructional error was harmless simply because the evidence of domestic transactions, when viewed most favorably for the government, was sufficient to convict. And it was wrong to say that the mere fact that the evidence was sufficient to convict "means that if the jury had been instructed [properly], it would still have necessarily reached the verdict it did."
The defendants have both filed petitions for rehearing and rehearing en banc. Stay tuned for further developments.
Circuit Issues Important New Fourth Amendment Decision
United States v. Ganias, No. 12-240-cr (2d Cir. June 17, 2014) (Hall, Chin, and Restani), available hereYesterday, the Circuit handed down what Professor Orin Kerr has already called "a very important new Fourth Amendment case." In an opinion by Judge Chin, the Court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant. For a fuller discussion of this noteworthy decision, see the article at this link.
Tuesday, June 17, 2014
Court Denies En Banc Review -- By One Vote
United States v. Taylor, No. 11-2201-cr(L) (2d Cir. May 23, 2014), available here
The saga of this Hobbs Act prosecution continues. In December 2013, a panel of the Court (Judges Kearse, Jacobs, and Carney) issued an opinion, available here, vacating the three defendants' convictions relating to a conspiracy to rob a pharmacy in Manhattan. The panel ruled that the post-arrest statements of one of the defendants, Taylor, were not voluntary because he was "largely stupefied" when he made them and because his interrogators took undue advantage of his condition. Because the error was not harmless as to Taylor or as to the other defendants, the Court vacated the convictions of all three defendants. The Court found it unnecessary to decide whether the admission of Taylor's statements against his co-defendants violated Bruton v. United States, 391 U.S. 123 (1968).
In March 2014, the panel granted the government's petition for panel rehearing, withdrew its original opinion, and issued a revised opinion, available here. The new decision once again vacated all three defendants' convictions, and again found Taylor's post-arrest statements involuntary. But this time the panel reached the Bruton issue and resolved it in favor of the co-defendants.
That brings us to the latest development: On May 23, 2014, the Court issued an order denying rehearing en banc. The vote was seven-to-six against en banc review. The seven judges against rehearing were Judges Katzmann, Jacobs, Pooler, Lynch, Chin, Lohier, and Carney.
The remaining six active judges (Cabranes, Raggi, Wesley, Hall, Livingston, and Droney) dissented from the denial of rehearing en banc. The principal dissent was written by Judge Raggi and joined by the other five dissenters. Judge Cabranes also wrote a separate dissent speaking only for himself.
The dissent's main contention was that the panel's conclusion -- that Taylor's post-arrest statements were involuntary -- not only defies "common sense," but also the Supreme Court's decisions in Dickerson v. United States, 530 U.S. 428 (2000), Colorado v. Connelly, 479 U.S. 157 (1986), and Oregon v. Elstad, 470 U.S. 298 (1985). The dissent further argued that the panel misapplied Bruton in its revised opinion.
Interestingly, neither of these alleged errors was raised in the government's rehearing petition. The government's rehearing petition did not seek en banc review of the panel's conclusion regarding the involuntariness of Taylor's post-arrest statements. The sole basis for requesting rehearing was the government's contention that the panel could not grant a new trial to the co-defendants without finding a Bruton violation, a finding the panel did make in its revised opinion. Nor did the government ever seek rehearing en banc on the ground that the panel misapplied Bruton in its revised opinion.
In any case, without a majority of the active judges favoring en banc review, the panel's revised opinion stands.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, Samuel Vasquez, in this case.]
Monday, June 16, 2014
Circuit Affirms Terrorism Conviction for Plan To Bomb New York City Subways
United States v. Medunjanin, No. 12-4724-cr (2d Cir. May 20, 2014) (Kearse, Wesley, and Droney), available here
Adis Medunjanin was convicted, following a jury trial, of nine terrorism-related crimes involving a plan to carry out coordinated suicide bombings in the New York City subway system. He was sentenced to life plus 95 years of imprisonment.
The defendant's sole argument on appeal was that the district court (Judge Dearie) erred by denying a pretrial motion to suppress certain of the defendant's post-arrest statements on the grounds that questioning by the government violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), his Sixth Amendment right to counsel, and his Fifth Amendment right to substantive due process.
The Circuit affirmed. Its key holdings were:
1. Assuming Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, the defendant did not clearly and unambiguously invoke his right to counsel before his arrest. The defendant's statement -- asking whether his counsel had been notified about the issuance of a search warrant -- was "at best unclear and ambiguous."
2. The defendant did not show that his signed Miranda waivers were involuntary. The district court committed no clear in finding that the waivers were knowing and voluntary based on the totality of the circumstances -- including evidence that the defendant was eager to speak with the agents, that he was given breaks to attend to his personal and religious needs, and that the atmosphere of the interrogations was "friendly and open."
3. The government did not improperly interfere with the attorney-client relationship prior to indictment. The Sixth Amendment right to counsel in a criminal proceedings does not attach until criminal proceedings are initiated. Here, after the indictment was handed down, the defendant was promptly notified of the charges and allowed to see counsel, without any additional questioning. Contrary to the defendant's assertions, no pre-indictment conduct by law enforcement "ripened into" a cognizable post-indictment violation of the Sixth Amendment.
4. Finally, the government did not deny the defendant substantive due process by declining to disclose his whereabouts to his lawyer, failing to inform the defendant that his lawyer was trying to reach him, and refusing to deal with the defendant solely through his counsel. The Court held that the Sixth Amendment, not the Fifth Amendment, provides a right to counsel. Since the defendant's rights under the Sixth Amendment -- and to freedom from compulsory self-incrimination under the Fifth Amendment -- were not violated, he could not prevail by recasting his claims of attorney-client interference as violations of substantive due process.
Thursday, June 05, 2014
Erratic Behavior Following Guilty Plea Did Not Mandate New Competency Hearing or Reversal of Conviction
United States v. Kerr, No. 11-5462-cr(L) (2d Cir. May 16, 2014) (Kearse, Parker, and Hall), available hereAfter being charged with possessing MDMA with intent to distribute, Kerr ceased communicating with -- and then fired -- his two appointed attorneys, insisted on pressing several "ill-advised theories of defense," and underwent a competency examination that ultimately found him competent to stand trial. He elected to represent himself at trial but, with the assistance of a newly appointed attorney, pled guilty midway through. After entering the plea, Kerr resumed his prior behavior: he again refused to communicate with counsel and filed numerous pro se motions to withdraw his plea and obtain new counsel. At sentencing, Kerr's attorney expressed concern about Kerr's mental stability; the court also commented on his belligerent behavior. Ultimately, the court sentenced him to 121 months of imprisonment.
On appeal, the Circuit affirmed. It rejected Kerr's argument that his post-plea "erratic" and "irrational" behavior required the district court to hold another competency hearing before imposing sentence. The Court also rejected the argument that Kerr was deprived of his Sixth Amendment right to counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw his plea.
Finally, the Court rejected Kerr's challenges to his sentence, his claim that the district court should have allowed him to withdraw his plea, and all of his other arguments.
Circuit Upholds Ten-Year Mandatory Minimum Sentence for Child Pornography Offender
United States v. Lockhart, No. 13-0602-cr (2d Cir. May 15, 2014) (Katzmann, Straub, and Lohier), available hereThis appeal required the Court to decide the meaning of 18 U.S.C. § 2252(b)(2), which mandates a ten-year minimum term of imprisonment for a defendant who possesses child pornography and was previously convicted "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Specifically, does the phrase "involving a minor or ward" modify only "abusive sexual conduct," such that a prior sexual abuse conviction involving an adult victim constitutes a qualifying predicate offense?
The Circuit said yes, and affirmed the defendant's ten-year sentence. [Disclosure: Federal Defenders of New York, Inc., represents Mr. Lockhart.]
Lockhart pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which ordinarily carries no mandatory minimum sentence. But he had previously been convicted in a New York State court of first-degree sexual abuse involving his adult girlfriend. The district court found that this prior conviction related to "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," and therefore triggered a mandatory minimum ten-year sentence under 18 U.S.C. § 2252(b)(2). The court rejected Lockhart's argument that his prior conviction did not trigger the mandatory minimum because his sexual abuse offense did not involve a minor or ward.
The Circuit affirmed. After determining that the plain meaning of the statute was unclear, the Court employed familiar tools of statutory interpretation, including canons, statutory structure, and legislative history, to discern the statute's meaning. Ultimately, the Court decided that the government had the better of the argument, and that the phrase "involving a minor or ward" modifies only prior state convictions for "abusive sexual conduct," not those for "sexual abuse" or "aggravated sexual abuse." The Court acknowledged, however, that "the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase 'involving a minor or ward' modifies all three categories of state sexual abuse crimes."
Given this apparent conflict in the Circuits, will the Supreme Court step in and settle the matter? Stay tuned....
Thursday, May 08, 2014
Circuit Issues Important New Decision on Availability of Relief from Deportation
United States v. Gill, No. 12-2207-cr (2d Cir. May 7, 2014) (Katzmann, Winter, and Calabresi), available hereSection 1326(a) of title 8, U.S.C, makes it a felony for an alien who was previously deported from the United States to reenter this country without the consent of the Attorney General to reapply for admission. But, assuming certain procedural requirements are met, a defendant may defend against the charge by challenging the fundamental fairness of the underlying deportation order.
In this case, Gill was deported to Barbados in 2004, following his conviction after trial of attempted robbery, an aggravated felony. At his deportation hearing in 1997, Gill unsuccessfully requested relief from deportation under former section 212(c) of the Immigration and Nationality Act (repealed in 1996), and he appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed the appeal, ruling that the Antiterrorism and Effective Death Penalty Act of 1996 made noncitizens with aggravated felony convictions, including Gill, ineligible for § 212(c) relief.
After Gill returned to the United States in 2007, he was charged with illegal reentry under Section 1326. He moved to dismiss the charge on the ground that his deportation was fundamentally unfair because, contrary to the BIA's ruling, he was in fact eligible for § 212(c) relief. The district court denied the motion, holding that, under the Second Circuit's decision in Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003), Gill was ineligible for § 212(c) relief because he was convicted of his underlying aggravated felony after trial, rather than after a guilty plea, and that Congress's repeal of 212(c) did not have an impermissible retroactive effect on defendants who went to trial.
This important decision holds that Rankine is no longer good law in light of the Supreme Court's decision in Vartelas v. Holder, 132 S. Ct. 1479 (2012), and that "deeming noncitizens like Gill ineligible for § 212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach new legal consequences to convictions that pre-date the repeal of § 212(c)." Accordingly, because the district court erroneously found Gill to be ineligible for relief under § 212(c), the Circuit remanded for the court to determine whether, under 8 U.S.C. § 1326(d), Gill had been deprived of the opportunity for judicial review and whether his deportation order was fundamentally unfair. If so, his conviction would have to be vacated and the indictment dismissed.
Commentary: This decision, written by Chief Judge Katzmann, is a must-read for practitioners with illegal reentry cases.
Challenge to Indictment's Failure to Charge Sufficient Nexus to United States Was Waived By Guilty Plea
United States v. Yousef, No 12-4822-cr (2d Cir. Apr. 29, 2014) (Sack, Lynch, and Lohier), available here
Jamal Yousef pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization (18 U.S.C. 2339B). Judge Keenan sentenced him to 12 years in prison.
On appeal, Yousef argued, as he had before pleading guilty, that the indictment failed to allege a sufficient nexus between his alleged conduct - directing an arms trafficking organization in Honduras - and the United States. Though a guilty plea waives all non-jurisdictional defects in the indictment, he contended on appeal that the due process requirement of a territorial nexus to this country was a jurisdictional defect that could not be waived.
The Circuit rejected the defendant's argument, holding that the absence of a territorial nexus between a defendant's alleged conduct and the United States did not implicate the authority of a federal court to decide a case presented by an otherwise valid criminal indictment where, as here, the nexus requirement is not mentioned anywhere among the elements of the charged offense. In other words, because the indictment unambiguously alleged all of the elements of the charged crime, it conferred subject-matter jurisdiction on the district court.
Accordingly, because the defendant's guilty plea was valid, and the district court had the authority to hear his prosecution, his guilty plea waived his challenge to the indictment's failure to alleged a sufficient nexus between his conduct and the United States. The Court therefore affirmed Yousef's conviction.