Thursday, April 17, 2014

New York Conviction for Sexual Abuse in the Second Degree Qualified as Conviction "Relating to ... Sexual Abuse" of a Minor

United States v. Allen, No. 13-0296-cr (2d Cir. Apr. 16, 2014) (Pooler, Parker, and Wesley), available here

Allen pled guilty to transporting, receiving, and possessing child pornography. At sentencing, the district court ruled that Allen's prior New York State conviction for Sexual Abuse in the Second Degree, N.Y. Penal Law 130.60(2), subjected him to increased penalties because it constituted a prior conviction under a State law "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. 2252A(b)(1) and (b)(2). The Circuit agreed and, consequently, affirmed.

Penal Law 130.60(2) provides that "[a] person is guilty of sexual abuse in the second degree when he ... subjects another person to sexual contact and when such other person is ... [l]ess than fourteen years old." Allen's conviction under this provision resulted from his touching the genitalia of a thirteen-year-old boy through the boy's clothing. 

The Circuit had no trouble concluding that this prior conviction qualified as a conviction under a law "relating to ... sexual abuse ... involving a minor," as required to trigger the enhanced penalties under 18 U.S.C. 2252A(b). Using a "categorical approach," the Court found that the conduct enumerated in New York's definition of "sexual contact" embraces "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" including "through clothing." Accordingly, Allen's prior conviction qualified for the federal enhancement. 

The Circuit explicitly rejected Allen's claim that the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor or ward" refer exclusively to several specified federal offenses listed in 18 U.S.C. 2241-43. Thus, even if New York's sexual abuse statute differs significantly from the definition of sexual abuse in 18 U.S.C. 2243, it still triggers the federal statutory enhancements because it "relate[s] to" the "sexual abuse of a minor" as that phrase is ordinarily understood.

Defendant's Hearing Impairment Did Not Require New Trial

United States v. Crandall, No. 12-3313-cr (2d Cir. Apr. 10, 2014) (Walker, Cabranes, and Parker), available here

This summary was provided by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Crandall was convicted after a jury trial of being a felon in possession of a firearm and ammunition (18 U.S.C. §§ 922(g)(1) and 924(a)(2)). On appeal, he argued that his trial violated Due Process and the Sixth Amendment because he suffered from a hearing impairment that prevented him from fully exercising his rights. 

Crandall’s impairment was first raised at a suppression hearing where counsel informed the district court that “Mr. Crandall has a hearing problem, he does have his hearing aids in but he’s still having trouble hearing.” In response, the judge directed the clerk to turn up the volume on the microphone and instructed the witness to “speak up.” During trial, various references were made to Crandall’s hearing issues: Crandall complained of a “fuzzy noise” from his hearing device; on another occasion Crandall was admonished by the district court for speaking loudly to his investigator, at which time Crandall stated he could not hear the judge’s admonishment clearly. During his own testimony, Crandall asked his lawyer to push the microphone closer. At sentencing, Crandall claimed he “could not hear my trial, witnesses [sic] testimony, or the Judge [sic] ruling. I could not even communicate with my Attorney because he tried wispering [sic]and it was on deaf ears.”

The Circuit held that the Sixth Amendment right to participate in one's own trial encompasses the right to reasonable accommodations for impairments to that participation, including hearing impairments. But where a criminal defendant fails to notify the district court of the impairment, she is only entitled to accommodations commensurate with the degree of difficulty reasonably clear or obvious to the district court. Here, the Circuit ruled, the district court was not notified of an ongoing hearing impairment – a “continuous inability to hear the proceedings.” Rather, the district court knew or should have known only that Crandall had some difficulty hearing at times. Given that knowledge, the accommodations provided by the district court were commensurate with the apparent severity of the impairment. Accordingly, no new trial was required.  

“Innocent Possession” and "Entrapment By Estoppel" Did Not Apply To Defendant Allegedly Returning Gun Under State or Local Amnesty Program

United States v. Miles, No. 13-1158-cr (2d Cir. Apr. 10, 2014) (Wesley, Carney, and Rakoff) (per curiam), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Defendant Miles appealed his conviction and sentence as a felon in possession of  a firearm (18 U.S.C. § 922(g)(1)) after a bench trial on stipulated facts. He was sentenced to a mandatory prison term of fifteen years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The stipulated facts at trial included that Miles had been previously convicted of at least one felony; that he possessed the pistol in the Southern District of New York; and that an interstate nexus existed.

Miles claimed at trial that his possession of the weapon (while riding the NYC subway) was in connection with the New York “cash for guns” program as he was en route to provide the gun to law enforcement. On appeal, the Circuit held that the affirmative defense of entrapment by estoppel was not available to Miles, because, as eight other Circuits have held, “a defendant charged with violating a federal crime must show reliance on the advice or authority of federal officials or agents to invoke this defense.” Here, however, Miles allegedly relied on representations made to him by state and local officials, not federal officials, offering "cash for guns."

The Circuit also rejected Miles's "innocent possession" defense. While noting that the Circuit had not yet decided whether to recognize an innocent possession defense in the context of § 922(g), the panel cited the Court’s “repeated” rejection of an innocent possession defense where “possession was not ‘momentary’ or ‘only for as long as necessary’ to deal with a justifying necessity.” Under that standard, the district court properly precluded Miles from asserting the defense. 

In addition, the Court summarily affirmed the police officer’s probable cause to arrest Miles, based on his passage through various NYC transit cars in violation of an administrative ordinance.

Finally, the Circuit upheld Miles's fifteen-year prison term under ACCA. The Court rejected the argument that the defendant's prior state court conviction for robbery in the third degree did not qualify as a "violent felony" under ACCA because he was sentenced to less than a year in custody for that offense. The Court noted that the crime need only be "punishable" by more than a year in prison; it does not matter what sentence the defendant actually received.

Thursday, April 03, 2014

The Fact of a Prior Felony Conviction Does Not Go to the Jury Even if It Increases a Defendant's Statutory Mandatory Minimum

UNITED STATES V. ROSARIO, NO. 12-3963 (2D CIR. APR. 2, 2014) (WESLEY, CARNEY, AND RAKOFF) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this case appealed his jury conviction for conspiracy to distribute and possession with the intent to distribute heroin.  He argued that the evidence was insufficient to support the conspiracy conviction and that other errors denied him a fair trial, including whether the jury should have considered the fact of a prior felony information.  Because the sufficiency claim related to the credibility of cooperating witnesses, the Court deferred to the jury's credibility determinations and held that the jury had "ample evidence" to find the defendant guilty.

With regard to the prior felony information question, the Court cited the continuing validity of the Supreme Court's decision in Almendarez-Torres and held that "the fact of a prior felony conviction may be decided by a judge, not a jury, even if that fact increases the statutory minimum term of imprisonment to which the defendant is exposed."  The Court relied on the more recent Supreme Court decision in Alleyne v. United States, which specifically declined to revisit the holding in Almendarez-Torres.

Wednesday, April 02, 2014

Summary Summary

Here's a quick summary of noteworthy summary orders recently issued by the Circuit:

United States v. Davis, No. 12-4836-cr (2d Cir. Apr. 2, 2014) (Katzmann, Livingston, and Carter) (summary order), available here

The Circuit rejected Davis's argument that the district court improperly sentenced him as a "career offender." The district court, using the "modified categorical approach" to prior convictions, correctly found that Davis's prior conviction for assault in the second degree under Connecticut law constituted a "crime of violence." Accordingly, that conviction was properly used as a qualifying conviction for career offender purposes.

The Court also held that Davis's 112-month prison sentence -- less than half of the 262-month minimum term recommended by the Guideline -- was not substantively unreasonable.

United States v. Marks, No. 12-3788-cr (2d Cir. Mar. 31, 2014) (Parker, Hall, and Livingston) (summary order), available here

This summary order upholds the district court's decision to deny Marks a new trial based on alleged ineffective assistance of counsel. Though counsel failed to communicate a plea offer (of 20 years in prison) to the defendant, Marks failed to show a "reasonable probability" that he would have accepted the plea offer if it had been relayed.  

United States v. Green, No. 11-2958-cr (2d Cir. Mar. 31, 2014) (Parker, Livingston, and Carney) (summary order), available here

The Circuit held that the district court's erroneous failure to apply the Fair Sentencing Act of 2010 (FSA) at the defendant's sentencing (in May 2011) was not harmless. The court sentenced the defendant to ten years in prison, the minimum sentence under pre-FSA law. At sentencing, the Probation Department, the government, and defense counsel all referred -- incorrectly-- to a mandatory minimum prison term of ten years. Under these circumstances, the Circuit concluded, it could not be confident that the district court would have imposed the same ten-year sentence if it had recognized that the FSA governed and that the ten-year minimum did not apply. 

United States v. Hamdan, No. 11-4959-cr (2d Cir. Mar. 31, 2014) (Raggi, Chin, and Carney) (summary order), available here

Convicted of trafficking in counterfeit goods, defendant was ordered to pay $36,138 in restitution under the Mandatory Victim Restitution Act. He argued on appeal, inter alia, that the record evidence was insufficient to require him to reimburse certain expenses for which he claimed he was not responsible. 

The Circuit, applying plain error review, affirmed. The Court held that the evidence was sufficient to support the restitution order, that the defendant was properly ordered to pay restitution for a victim's travel and its destruction of counterfeit goods, and that the district court adequately considered defendant's economic circumstances in apportioning liability.   

United States v. Barner, No. 13-0379-cr (2d Cir. Mar. 31, 2014) (Sack, Livingston, and Lohier) (summary order), available here

Affirming defendant's conviction for illegally possessing a firearm as a convicted felon, the Circuit held that: 1) the district court did not err by failing to instruct the jury specifically that neither the defendant's presence nor his association with persons who owned or controlled the weapons was enough to convict the defendant; 2) the Allen charge given by the district court was not coercive; and 3) the evidence was sufficient to support the defendant's conviction; and 4) the defendant failed to demonstrate any improper courtroom closure that implicated his Sixth Amendment right to a public trial. 

Tuesday, April 01, 2014

Evidence Was Sufficient To Prove That Defendant Was Physically Deported

United States v. Harvey, No. 12-1490-cr (2d Cir. Mar. 26, 2014), available here

Harvey was convicted after a jury trial of one count of illegal re-entry into the United States after he was deported. He argued on appeal that the evidence was insufficient to prove his physical departure from the United States. The Circuit affirmed.

To prove Harvey left the country, the government relied on a 1992 warrant of deportation prepared by an immigration official, which indicated that the official witnessed Harvey depart on a flight from JFK airport to Kingston, Jamaica. That official was unavailable to  testify at Harvey's 2011 illegal re-entry trial, and the government did not present any other direct evidence that Harvey left the United States in 1992.

Nevertheless, the Circuit held that the evidence permitted a rational juror to conclude that Harvey had in fact left the United States on the date specified in the warrant. The Court ruled "that a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States."

Here, the warrant specifically indicated that an immigration official had "witnessed" Harvey's departure, and set forth the date, flight number, and time it was effected. In addition, Harvey stipulated that he signed the warrant and that it contained his fingerprints. These facts, the Court held, coupled with testimony regarding the deportation procedures in effect in 1992, were sufficient to show that Harvey physically left the United States on the date specified in the warrant.

Commentary: The Circuit expressly left open whether the introduction of a warrant of deportation violates a defendant's rights under the Confrontation Clause where the person who prepared the warrant is not available for cross-examination, an issue not raised by this defendant.  

Forfeiture Is Limited to That Authorized by the Statute Listed in the Charged Count

United States v. Annabi, Nos. 12-4988-cr(L), 12-4990-cr(Con) (2d Cir. Mar. 25, 2014), available here

This published decision holds that where the government fails to invoke an applicable forfeiture provision in the indictment, and fails to correct that error prior to entry of a final judgment, forfeiture must be limited to that authorized by the statute cited as the basis for forfeiture, and of which the defendant had notice.

The facts: A jury convicted Annabi of, among other counts, three counts of mortgage fraud (Counts Seven, Eight, and Nine). The government sought, and the district court ordered, forfeiture of the gross proceeds of the fraudulently obtained loans described in these three counts.

The Indictment sought, on all three counts, forfeiture to the United States, citing the civil forfeiture provision (18 U.S.C. 981(a)(1)(C)), and 28 U.S.C. 2461(c). On  Counts Eight and Nine only, the Indictment also sought forfeiture under the criminal forfeiture provision (18 U.S.C. 982(a)(2)(A)). But Count Seven cited the civil forfeiture provision only. The civil and criminal forfeiture provisions, moreover, are different in at least one crucial respect: the criminal provision requires forfeiture of the entire amount of a fraudulent loan (even if it was already repaid), whereas the civil provision requires a deduction from forfeiture of any portion of the fraudulent loan that was repaid at no loss to the victim.

The decision: The Circuit held that, because the government failed to mention the criminal forfeiture provision in Count Seven, and did not correct this oversight prior to or during sentencing, the district court erred by ordering the defendant to forfeit the gross fraudulent proceeds for Count Seven. Since Count Seven cited only the civil forfeiture provision, the district court should have reduced the forfeiture on Count Seven by the amount of the fraudulent loan that was repaid with no loss to victim.

Monday, March 31, 2014

Circuit Affirms Former Goldman Sachs Director's Insider Trading Convictions

United States v. Gupta, No. 12-4448-cr (2d Cir. Mar. 25, 2014) (Newman, Kearse, and Pooler), available here

Rajat K. Gupta, a former director of The Goldman Sachs Group, was convicted, after a jury trial, of three counts of securities fraud and one count of conspiracy to commit securities fraud, based on insider trading. He was sentenced to 24 months of imprisonment, one year of supervised release, and a fine of $5 million. This published decision affirms the judgment.

Gupta argued on appeal that the trial court (Judge Rakoff) erred (1) by admitting statements of a coconspirator (Raj Rajaratnam), recorded in wiretapped telephone conversations to which Gupta was not a party, and (2) by excluding relevant evidence offered by Gupta.

The Circuit rejected these arguments. It held, first, that Rules 801 and 804 of the Federal Rules of Evidence allowed the admission of Rajaratnam's recorded statements, both as non-hearsay statements in furtherance of the charged "Rajaratnam-Gupta conspiracy" and under the exception for statements against penal interest.   

The Court also held that the district court did not commit reversible error by limiting or excluding evidence proffered by the defense to show that any communication by Gupta of inside information to Rajaratnam was improbable. This evidence included testimony from Gupta's daughter Geetanjali suggesting that Gupta was angry with Rajaratnam at the relevant time and therefore was unlikely to have shared insider information with him.

The Circuit held that the trial court did not abuse its discretion by concluding, under Fed. R. Evid. 403, that this evidence was "cumulative" and would have been "unfairly prejudicial" to the government. The Court further held that any error was harmless.

Finally, the Circuit upheld the exclusion of other defense evidence, including evidence that ostensibly suggested that someone else had provided confidential information to Rajaratnam, evidence of Gupta's intent to give to charity, and character testimony indicating that Gupta had "integrity."

District Court Had Jurisdiction To Adjudicate and Punish Violation of Supervised Release

United States v. Bussey, No. 13-1180-cr (2d Cir. Mar. 20, 2014) (Raggi, Lynch, and McMahon), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Bussey appealed his conviction for violating the terms of his supervised release. He argued that the district court lacked jurisdiction because his term of supervision expired before judgment was imposed. The Circuit affirmed.

The facts: Bussey began serving a three-year term of federal supervision on February 9, 2010, upon his release from federal custody for a felon-in-possession conviction. On April 1, 2011, and April 7, 2011, arrests warrants were issued, respectively, by New York State and the United States, for Bussey's failure to report for state or federal supervision. Bussey was taken into state custody first and remained there until March 8, 2013. He was then transferred to federal custody on March 20, 2013, at which time he appeared in the district court and was found guilty of violating a condition of his supervision, i.e., he failed to notify his probation officer prior to changing his residence. The district court sentenced Bussey to time served and imposed an addition two years of supervision.

The decision: In rejecting the jurisdictional challenge, the Circuit relied on 18 U.S.C. 3583(i), which provides that the power of the district court to revoke supervision and impose punishment "extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration...." Further, the Circuit noted that 18 U.S.C.
3624(e) expressly tolls supervision terms for "any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days."

Here, Bussey was imprisoned for about  22 months by New York State for violating his parole. That period tolled his federal supervision because Bussey was imprisoned during that time "in connection with a conviction for a ... State ... crime." Accordingly, by virtue of the tolling, the district court had jurisdiction to adjudicate Bussey's federal supervised release violation in March 2013.  

Thursday, March 27, 2014

Defense Lawyer's Decision Not to Call a Witness Who Might Offer Exculpatory Evidence Is a Question of Trial Strategy

PIERRE V. ERCOLE, NO. 12-3506-PR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This case involved an ineffective assistance of counsel claim following defendant's murder conviction.  The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness.  The Court disagreed with both arguments. 

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation.  The defendant claimed that the uncalled expert witness could have cast doubt on the state's pathologist, who opined as to the victim's date of death.  That date, however, did not coincide with the defendant's claimed alibi that existed two days later.  According to the Court, the decision to not call the witness was strategic.  It avoided potential cross-examination of the uncalled defense witness by the state, which could have "diluted" the points made by the defense lawyer during cross-examination of the state's pathologist. 

Nothing in the record supported the defendant's second claim, including any affidavit from the defense lawyer or the possible witness as to what she did or did not witness.  "Bare allegations" were insufficient to meet the defendant's burden of proving ineffective assistance of counsel.

A District Court's Failure to State in Open Court Reasons for the Sentence Imposed Is Not In and of Itself Plain Error

UNITED STATES V. PALMA, NO. 13-2230-CR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant claimed that the sentencing court committed procedural error by failing to articulate the reasons for the sentence imposed and not addressing the 3553(a) factors.  On plain error review, the first challenge failed.  The Court explained that even if a sentencing court fails to state in open court the reasons for its sentencing decision, that is not tantamount to establishing plain error.  Moreover, the sentencing court in this case expressly adopted the presentence report, which was detailed.  The report discussed the amount of drugs and money involved in the offense.  The district court even noted the former at the sentencing hearing.  Based upon the totality of circumstances, no plain error existed. 

The Court also disagreed with the 3553(a) claim, noting there is no requirement that the sentencing court mention the factors or explain how each factor affected the sentencing decision.  Absent evidence to the contrary, the presumption that courts not only know the laws governing their decisions, but also followed those laws, controls.

Promise of Jail Time by District Court at Plea Hearing Did Not Give Rise to "Air of Inevitability" at Subsequent Sentencing

UNITED STATES V. DELGIORNO, NO. 13-625-CR (2D CIR. MAR. 27, 2014) (STRAUB, SACK, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his sentence and claimed that the sentencing court committed procedural error by failing to calculate the guidelines, properly consider the 3553(a) factors, and adequately explain the sentence imposed.  All challenges failed.  The district court calculated the guidelines given its review and "explicitl[] adopt[ion]" of the presentence report's accurate guideline calculations.  At the hearing, it also noted the low end of the range when explaining that it would not impose a guidelines sentence.  The district court also provided an adequate explanation for the below guideline sentence imposed, including aggravating and mitigating factors.

As to the defendant's 3553(a) argument, the Court affirmed, but voiced concern about whether the sentence "had an air of inevitability" based upon comments by the district court at the defendant's plea hearing.  At that hearing, the district court noted an "agreement" it had with the defendant, which included a two-year sentencing adjournment.  If the defendant did not get into any trouble, he would receive no jail time.  But, if he did get into trouble, he would go to jail.  The defendant apparently got into trouble, prompting the district court to impose jail time per its earlier promise.  The Court quickly concluded that the district court's written statement of reasons for the sentence unambiguously demonstrated consideration of the 3553(a) factors prior to imposition of sentence.

Tuesday, March 25, 2014

Alford Plea Allowed Court To Conclude That Defendant Violated Supervised Release By Committing a New Crime

United States v. Glenn, No. 13-0231-cr (2d Cir. Mar. 12, 2014) (Jacobs, Livingston, and Lynch), available here

Glenn appealed from an order of the District of Connecticut revoking his supervised release. The district court concluded that Glenn committed "another federal, state or local offense" in violation of the conditions of his supervised release, based solely on his pleas of guilty to state drug offenses entered under the Alford doctrine, see North Carolina v. Alford, 400 U.S. 25 (1970).

Defendant argued on appeal that his Alford pleas were insufficient to prove by a preponderance of the evidence that he had violated the conditions of his supervision. But the Circuit affirmed. It held that an Alford plea, under Connecticut law, constitutes an acknowledgement of the strength of the state's evidence. Accordingly, the district court did not abuse its discretion in concluding, by a preponderance of the evidence, that Glenn committed another offense in violation of the conditions of his supervised release.