Friday, September 19, 2014
The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.” Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house. The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house. The victim testified that the car could be seen from the front door, but that she could not see the car at the time defendants demanded the keys because she was lying on the floor. Other trial evidence revealed that the interior of the house was separated from the car by a solid front door, a short driveway, a wrought iron fence, and a sidewalk. The car could be unlocked from the front door with a remote keychain.
On appeal, the Circuit rejected defendants’ argument that the statutory term “presence” means “in front of, or in the area immediately around, a person,” adopting instead the more expansive definition above. Nonetheless, this definition of presence “is not boundless,” but “implies a degree of physical proximity between the victim and the vehicle.” Citing with approval decisions of other Courts of Appeals affirming carjacking convictions where the automobiles stolen were parked outside the premises where the victims were robbed, the Circuit concluded that the evidence in this case likewise sufficed to prove presence.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, William Soler, in this case.]
Modified Allen Charge Not Required Where Jury Poll Reveals Non-Unanimity
United States v. McDonald, No. 12-2056-CR (2d Cir. July 22, 2014) (Cabranes, Sack, and Lynch), Available Here
During deliberations in defendant’s fraud trial, the jury announced that it had reached a guilty verdict. When the jury was polled, Jurors 1-10 so confirmed, but Juror No. 11, asked whether guilty was her verdict, answered “no.” With the parties’ agreement, the trial court (Koeltl, J.) told the jury that he would “send you back to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you.”
After deliberations resumed, the court told the parties that he had identified a model instruction (Sand ¶ 9.12) applicable where a jury poll reveals a lack of unanimity. The first part of the model instruction tracks what the jury had already been told. The second part, however, contains a modified Allen charge, encouraging the jurors to consult with one another and to change their minds if convinced of a new view, while admonishing them not to surrender sincerely held convictions. With the parties’ agreement, the court declined to give that modified Allen charge, and the jury (unanimously, this time) convicted an hour later.
On appeal, the Circuit held that the court’s instruction was appropriate and its failure to admonish the jurors not to surrender conscientiously held beliefs was not error, let alone plain error. The court only asked the jurors “to see whether” they could reach a unanimous verdict. The charge was not coercive because it did not suggest that unanimity was required, did not urge jurors to change their views or try to persuade each other, and left open the possibility that no verdict would be reached. Thus, although an Allen charge generally requires an accompanying admonition, this was not an Allen charge, so no admonition was necessary.
Notwithstanding Sand’s commentary that instruction ¶ 9.12 should be given “whenever” a jury poll reveals a lack of unanimity, the Circuit observed that the instruction given here was “a sensible and manageable alternative.” Finally, the Circuit added cautionary language regarding Allen charges generally, noting that trial courts “should be mindful of presenting them in a way that aids, rather than confuses the jury,” especially “after a jury poll reveals a lone dissenter.”
Tuesday, September 16, 2014
District Court Did Not Abuse Discretion by Admitting Documents as "Self-Authenticating," Despite Government's Failure to Comply With Rule 902
United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here
Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; "they require no extrinsic evidence of authenticity in order to be admitted." Fed. R. Evid. 902. These items include certified domestic records. But the rule requires the proponent of the evidence to give an adverse party, before trial, "reasonable written notice of the intent to offer the record -- and [to] make the record and certification available for inspection -- so that the party has a fair opportunity to challenge them." Fed. R. Evid. 902(11).
In this case, a prosecution for mortgage fraud, the district court admitted the pertinent loan files as self-authenticating under Rule 902(11), even though the government never gave the defendants the "written notice" required by the Rule.
The Circuit nevertheless found no error. The Court noted that the defendants admitted that they had oral notice of the government's intent to offer the records and an opportunity to challenge the Rule 902(11) evidence.
The Court concluded its opinion by warning that "parties fail to comply with ... Rule 902(11)'s written notice requirements at their own risk." But, given the Court's readiness to overlook the government's failure to comply with the Rule -- which the government easily could have done -- that warning is likely to ring hollow.
Commentary: It's hard to see how the failure to comply with the plain language of a rule of evidence isn't error. The Circuit would have been on stronger ground if it acknowledged the error, and then evaluated whether the error was harmless.
Mob Informant Beats Government on Appeal
United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here
Volkan Mergen worked for years as a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without alerting the FBI in time to abort the crime.
Mergen then entered into a cooperation agreement by which he would plead guilty to a Travel Act offense in connection with the arson in exchange for a Section 5K1.1 "substantial assistance" letter. One provision of the agreement tolled the statute of limitations for prosecutions resulting from Mergen's breach and "premised upon, among other things," his statements to the government, his testimony, or leads derived therefrom.
When Mergen breached the agreement, the government successfully prosecuted him in the Eastern District of New York for the Travel Act offense and other crimes (drug distribution, attempted robbery, firearm possession, and related conspiracies) that the government learned about from persons who had been convicted based on Mergen's cooperation.
On this appeal, the Circuit granted a new trial on the Travel Act count and reversed the rest of Mergen's convictions.
Though the panel held the evidence sufficient to support the Travel Act conviction, the Court ruled that the district court committed reversible error by excluding a recorded conversation between the defendant and his FBI handler. In the recording, the FBI agent assured the defendant that he had not done "anything wrong" the night of the arson. This recording should have been admitted at trial, the Circuit ruled, because it impeached the agent's testimony denying that he ever told the defendant that he did "nothing wrong." Accordingly, the recording was a "prior inconsistent statement offered for impeachment," and thus, by definition, was not hearsay. The Court also held that the error was not harmless because the evidence of the defendant's intent was ambiguous, the case against him depended largely on whether the jury believed the defendant or the FBI agent, and the recording would have undercut the agent's credibility.
The Circuit also reversed the defendant's other convictions. It agreed with the defendant that the limitations waiver in the cooperation agreement, which had to be construed strictly against the government, did not toll the statute of limitations for offenses that the government learned about from people Mergen helped convict. If the government wished to reserve its right to prosecute the defendant for any offense he ever committed, without regard to any statute of limitations, then it should have drafted the agreement to say so expressly and unambiguously.
Commentary: Notably, this was the defendant's second appeal. On the first appeal, the Circuit ruled that the recorded conversation between the defendant and the FBI agent "should not have been excluded on the basis of either hearsay or lack of authentication." The district court apparently did not get the message, for it again excluded the recording on these same improper grounds, prompting reversal.
Monday, September 15, 2014
Excluding Defendant's Parents from Trial During Victim's Testimony Did Not Violate Right to Public Trial
United States v. Ledee, No. 13-2363-cr (2d Cir. Aug. 8, 2014) (Walker, Pooler, and Wesley), available hereThe defendant was convicted of crimes stemming from participating via webcam in the sexual abuse of an eight-year-old girl by her mother. At trial, the district court granted the government's motion to close the courtroom during the victim's testimony to all persons who were not directly involved in the trial, including the defendant's parents.
On appeal, the defendant argued that the courtroom closure violated his Sixth Amendment right to a public trial. The Circuit, over a dissent by Judge Pooler, disagreed and affirmed. [Disclosure: Federal Defenders of New York, Inc., represents the defendant in this case.]
For a courtroom to be closed to the public in compliance with the Sixth Amendment, four requirements must be met: (1) the closure must "advance an overriding interest that is likely to be prejudiced;" (2) the closure must be "no broader than necessary to protect that interest;" (3) the trial court must consider "reasonable alternatives to closing the proceeding;" and (4) the court must make "findings adequate to support the closure." See Waller v. Georgia, 467 U.S. 39, 48 (1984).
The panel majority found these requirements satisfied. First, it ruled that the interest at risk of being prejudiced -- the victim's ability to effectively communicate about her abuse -- was sufficient to justify the "relatively narrow closure here."
Second, the Court found that the closure was not overly broad, even though it included the defendant's parents. According to the panel, the trial judge reasonably determined that the parents had to be excluded from the courtroom to ensure the victim's effective testimony.
Third, the Court ruled that the trial court adequately considered reasonable alternatives to closure because it said that "[t]he parties have not advised the court of any [such] alternatives..., and the court is not aware of any."
Finally, the Court ruled that the district court made adequate findings, supported by an affidavit from the victim's father, to support the courtroom closure.
In dissent, Judge Pooler concluded that the district court failed to make an adequate record of what alternatives to closure it considered and why those alternatives were deemed inadequate.
Monday, July 28, 2014
Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment
United States v. Park, No. 13-4142-cr (2d Cir. July 9, 2014) (Cabranes, Carney, and Droney) (per curiam), available here
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.]