Wednesday, March 30, 2005

Supreme Court Modifies the Second Circuit's Rule Concerning the Staying of Mixed Habeas Petitions

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O'Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition -- i.e., one containing both exhausted claims and unexhausted claims -- given 28 U.S.C. § 2254(b)(1)(A)'s command that no writ can "be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." The Court reversed the decision below from the Eighth Circuit, which ruled that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances." Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA's one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially forecloses future federal habeas review of the petitioner's claims.

The Supreme Court did not, however, adopt the Second Circuit's contrary position in such situations. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), Judge Newman ruled that when a district court is confronted with a mixed petition, and where an outright dismissal of the petition "[w]ould jeopardize the timeliness of a collateral attack" due to AEDPA's one-year statute of limitations, id. at 380, a stay of the habeas proceedings (holding the exhausted claims in abeyance while the petitioner returned to state court to exhaust the unexhausted claims) "will be the only appropriate course." Id.

Instead, Justice O'Connor ruled for a unanimous Court that "stay and abeyance should be available only in limited circumstances." Op. at 7. The Court explained, first, that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. (emphasis added). Second, even where there is good cause for the failure to exhaust, a district court should not employ the stay-and-abeyance procedure "when [the petitioner's] unexhausted claims are plainly meritless." Id.

Finally, the Court adopted Zarvela's requirement that even when a district court stays a mixed petition to allow the petitioner to exhaust the unexhausted claims in state court, it "should place reasonable time limits on a petitioner's trip to state court and back." Op. at 7. Indeed, the Court specifically cited Zarvela's requirement that when a habeas petition has been stayed, the petitioner must file a state petition (to exhaust the unexhausted claims) "within a brief interval, normally 30 days, after the stay is entered and [must] return[] to federal court wihin a similarly brief interval, normally 30 days after state court exhaustion is completed." Id. (citing Zarvela, 254 F.3d at 381.

As a last point, the Court emphasized that even where a stay is not appropriate, "the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims . . . ." Op. at 8.

Justice Stevens and Justice Souter each wrote a short, one-paragraph concurrence. The gist of each is similar in downplaying the opinion's "good cause" requirement. As Justice Stevens wrote, "While I join the Court's opinion, I do so on the understanding that its reference to 'good cause' for failing to exhaust state remedies more promptly . . . is not intended to impose the sort of strict and inflexible requirement that would 'trap the unwary pro se prisoner."

Comment: Rhines is obviously not a great decision for those who practice in the Second Circuit. Of course, much will depend on how courts will construe the "good cause" requirement created by this case, something not at all fleshed out by Justice O'Connor. But regardless of how much teeth courts put into this requirement, the plain fact is that, often, habeas petitioners have no excuse whatsoever for failing to exhaust certain claims -- other than the fact that they are not lawyers and were acting pro se when they filed their state petitions or motions. Simply being pro se is of course insufficient to satisfy the "good cause" requirement, so it is quite possible that Rhines will result in many more dismissals of mixed petitions. Where the Rhines test cannot be met, the petitioner should obviously opt for the choice of deleting the unexhausted claims and proceed on the exhausted ones.

Friday, March 25, 2005

Gun Convictions Upheld on Sufficiency Challenge, and District Court's Error in Failing to Disclose Pretrial Services Report to Defendant Was Harmless

United States v. Lewter, Docket No. 04-2546 (2d Cir. March 24, 2005) (Meskill, Jacobs, and Straub) (Op. by Jacobs): In this case, the Court upheld the defendant's conviction against a sufficiency challenge on two gun charges -- one for possessing a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)) and the other for possessing a gun with an obliterated serial number (18 U.S.C. § 922(k)). The Court also found that while the district court erred in refusing to disclose the defendant's pretrial services report to the defendant for use at trial, the error was harmless.

The facts are simple. Government agents executed a search warrant on defendant's apartment, and found him sitting on his bed. Under the bed was a loaded .357 magnum revolver. On a nearby dresser was a scale with white powder on it. Inside the dresser were 71 grams of crack and a small amount of heroin. Upon being read his Miranda rights, the defendant allegedly stated that "the drugs were in the dresser" and that "he was not just your ordinary drug dealer."

At trial, counsel sought to review the report prepared by the pretrial services office after Lewter was arrested, on the theory that the report contained a statement indicating that he was high on PCP at the time and thus that his alleged post-arrest statements were not reliable. The district court refused to do so, and the defendant was convicted of possessing with intent to distribute crack and heroin, as well as the 924(c) charge and the 922(k) charge. The opinion does not disclose the sentence ultimately imposed, but it undoubtedly was a substantial one given the nature of the charges.

On appeal, Lewter raised sufficiency challenges to the two gun convictions, and argued as well that the trial court's refusal to disclose the pretrial report to him was error. The Circuit affirmed.

1. Regarding the 924(c) count, the Circuit declined to adopt (as some other Circuits have) a list of factors relevant to the determination of whether a gun was possessed "in furtherance of" the drug trafficking charges, "since each case has its own wrinkles." Rather, "the test is [simply] whether a reasonable jury could ... find beyond a reasonable doubt that possession of the firearm facilitated a drug trafficking crime . . . ," keeping in mind that " 'in furtherance' means that the gun afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking." Op. at 6. And because the evidence was sufficient to find that the defendant possessed a gun to "defend [his] drug stash, [which] clearly furthers the crime of possession with intent to distribute," the Court upheld the 924(c) conviction.

2. Regarding the 922(k) count, the Court rejected the defendant's argument that because the serial number on the gun was so neatly obliterated, it was not self-evident from the appearance of the gun that a serial number had ever been there. The Court concluded that a reasonable jury could have found that Lewter knew that the serial number had been obliterated, relying on the fact that the gun was in the defendant's apartment and within arm's reach (thus suggesting his familiarity with it); that he was a drug trafficker, and thus would want an untraceable gun; and that the gun was valuable (worth $500 - $600), and thus that he would likely have inspected it carefully before purchasing it. The Court also pointed out that the jury inspected the gun during deliberations, and was thus competent to decide whether the defendant would have realized that the serial number had been obliterated.

3. Regarding the district court's refusal to disclose the pretrial report to the defense at trial, the Court concluded that this was error, citing 18 U.S.C. § 3153(c)(1) ("Each pretrial services report shall be made available to the attorney for the accused ..."). The Court found the error harmless, however, since (1) the probative value of the testimony sought was minimal, given that "this line of attack on the reliability of Lewter's statements [i.e., his post-arrest statements were not reliable because he was high on PCP] was unpersuasive", given the other evidence; and (2) "Lewter was [in any event] allowed to marshal other evidence at trial suggesting that he was intoxicated at the time of his arrest." Op. at 13.

Wednesday, March 23, 2005

Court Considers Conditions of Supervised Relase Regulating Defendant's Finances in Drug Case Where Neither a Fine nor Restitution Was Imposed

United States v. Brown, No. 04-3137-cr (March 22, 2005 )(McLaughlin, Sotomayor, C.J.J. and Cedarbaum, D.J., Op. by McLaughlin). Inthis opinion, the Court considered the imposition of special conditions of supervised release relating to the defendant’s finances where the defendant was not convicted of a financial crime, and where no fine or restitution was imposed. It upheld a condition requiring the defendant provide his probation officer with any requested financial information, but vacated one prohibiting him from incurring any new debts without the officer’s permission.

Facts: In November of 2003, Kenneth Brown pled guilty to distributing crack cocaine. His presentence report revealed that he had sustained drug-related convictions in 1995, 1997, 1998 and 2001. In addition, his employment history between 1996 and 2001 was "sparse, sporadic, and could not be verified." Brown was sentenced in May of 2004 to 70 months’ imprisonment and five years of supervised release. The court imposed neither a fine nor restitution, but did impose the mandatory $100 special assessment, which was to be paid through the Bureau of Prisons’ Inmate Financial Responsibility Program. It also imposed several special conditions of supervised release that had not been recommended by the Probation Department. The two at issue on appeal were that Brown provide the Probation Department with "access to any requested personal and/or business financial information" (the "financial information condition") and that he obtain approval from the Probation Office before incurring "any form of debt, including, but not limited to, use of existing credit cards, new credit cards, lines of credit, mortgages or private loans" (the "no-new-debts condition").

The Court of Appeals’ Decision: The Court upheld the financial information condition but vacated the no-new-debts condition.

Covering well-trod ground, the Court began by observing that special conditions of supervised release are reviewed for abuse of discretion, and that such conditions must be "reasonably related" to the nature and circumstances of the offense and the history and characteristics of the defendant, and the need for the sentence to protect the public, afford adequate deterrence, and address the defendant’s rehabilitative needs. In addition, a special condition must involve no greater deprivation of liberty than is reasonably necessary to achieve those ends.
Under these standards, the Court upheld the financial information condition, even though it was not necessary to ensure the payment of a fine or restitution. Brown’s "criminal record and sparse employment history" demonstrated a proclivity to support himself through criminal activity and thus the financial monitoring condition would be an "effective tool[] to ensure that [he] did not return to drug dealing after his release from prison."

Brown fared somewhat better with respect to the no-new-debts condition. The Court first observed that there was no "readily apparent" connection between Brown’s offense and the condition, since the offense did not involve the incursion of debt and he was not in debt to any large degree. Similarly, the Court did not believe that the condition would deter future criminal conduct, protect the public or assist in Brown’s rehabilitation. The Court also found that it was a greater restriction on Brown’s liberty than was reasonably necessary. Since he was indigent, the use of credit cards or other forms of credit might be "necessary to facilitate his reintegration into society" after prison. While the government had argued that the condition would guard against the possibility that Brown could accumulate excessive debt, which could make him more susceptible to relapsing into criminal behavior, the Court rejected this, remarking that this justification would render "a bar on debt accumulation ... appropriate in almost every case."

Although the Court vacated the no-new-debts condition, it did not strike it from the judgment. Since neither Brown nor the government had notice that the district court was going to impose such a condition, the Court was concerned that the record was not fully developed as to this issue. It therefore remanded the case for further findings with instructions to either "enter a more tailored condition regarding debt accumulation, or drop the condition entirely."

Court Upholds Long Delay Between Issuance of Supervised Release Violation Warrant and Its Adjudication

United States v. Angelo Ramos, No. 04-2004-cr (March 14, 2005)(Newman, Sack and Parker, op. by Sack). In this case, the Court of Appeals rejected a claim that a delay of several years between the time the defendant violated his supervised release by committing a new state crime and the time the violation was actually adjudicated either deprived the court of jurisdiction or amounted to a due process violation.


The relevant facts can be reduced to a simple timeline:

September 18, 1996: Defendant Angelo Ramos is sentenced in federal court to 36 months’ imprisonment and one year of supervised release.

May 1, 2000: Ramos begins his supervised release term.

November 24, 2000: Ramos is arrested and detained in an unrelated state case.

November 29, 2000: Ramos’ probation officer notifies the federal court of the arrest and seeks a warrant, but the court does not order one.

April 21, 2001: Probation officer again seeks a warrant, this time the court orders one.

May 5, 2001: Warrant for Ramos’ arrest is filed.

December 11, 2001: Ramos is convicted in state court, after trial.

February 1, 2002: Ramos receives concurrent four and 12 year terms of imprisonment in his state case.

October 17, 2002: Ramos is brought to federal court for supervised release violation proceedings.

November 1, 2002: Violation hearing is adjourned at Ramos’ request.

July 7, 2003: Ramos moves to dismiss the violation petition claiming, inter alia, that: (1) the delay in seeking revocation unreasonably and unnecessarily prolonged the court’s jurisdiction, in violation of 18 U.S.C. § 3583(i), and (2) the delay deprived him of due process.

February 27, 2004: District court denies Ramos’ motion to dismiss.

March 25, 2004: Court revokes Ramos’ supervised release and sentences him to one year, consecutive to his state sentence.

The Court of Appeals' Decision

On appeal, Ramos advanced largely the same claims he made in the district court, but to no avail.

First, in a decision of apparent first impression in this Circuit, the Court recognized that the delay between the filing of the petition for a supervised release violation warrant and the execution of that warrant could result in a due process violation "if the delay does in fact prejudice the defendant by substantially limiting the ability to defend against the charge that the conditions of supervised release were violated." Here, Ramos had alleged that the delay prejudiced him by rendering a particular witness unavailable; the Court rejected this as "entirely unsupported in the record."

Next, the Court rejected Ramos’ claim under 18 U.S.C. § 3583(i), which extends the district court’s jurisdiction to adjudicate supervised release violations beyond the expiration of the supervised release term "for any period reasonably necessary for the adjudication of matters arising before its expiration." The Court divided the relevant events into three distinct periods, each of which it deemed reasonably necessary, giving that term a quite liberal construction. First, the Court held that the period of time during which the state was adjudicating the new criminal charges was reasonably necessary and was in any event caused by Ramos’ own conduct. Second, the period between Ramos’ state conviction and the execution of the federal arrest warrant, which was about 10 months, was also reasonably necessary "for the same reason that this period is not overlong under a due process analysis." Since Ramos was in state custody anyway, his liberty interests were not infringed, and he suffered no tactical prejudice with respect to the violation proceeding itself. Finally, the 17-month period during which the federal proceeding was pending was also reasonably necessary. Much of the delay was occasioned by Ramos’ own request for an adjournment and the adjudication of his motion to dismiss and, again, he was not prejudiced.

This is a curious decision. Mr. Ramos would appear to have a valid claim that the 10 months that he waited for the federal authorities to execute the warrant after he was convicted in state court (the second of the three periods identified by the Court) was far too long to be reasonable. And yet, the Court was not troubled by this at all, even though there was apparently no valid explanation for why the simple execution of the warrant took so long. The upshot of Ramos seems to be that the Court will approve of any delay in adjudicating a supervised release petition, no matter how long or unexplained, unless the defendant can show that he was prejudiced. This seems like a curious outcome, since the statute says nothing at all about prejudice, but nevertheless it is now the law in this Circuit.

Thursday, March 17, 2005

"Prison Mailbox" Rule Applies to State Coram Nobis Petition for Tolling Purposes under § 2244(d)(1)

Fernandez v. Artuz, Docket No. 03-2541 (2d Cir. March 17, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): In this interesting opinion, the Circuit ruled that the "prison mailbox rule", which deems a document filed by a pro se prisoner "filed" as of the time the prisoner delivers it to prison authorities for mailing (rather than the time it is received by the court), can be applied to New York State coram nobis petitions for purposes of tolling § 2254's 1-year statute of limitations. I will spare everyone the details of the case, which boil down to the fact if the prison mail box rule does not apply to petitioner's coram nobis petition, his subsequent § 2254 petition would be untimely.

Although the Second Circuit has applied the prison mailbox rule in a variety of contexts, it had not done so to determine when a coram nobis petition was "properly filed" pursuant to AEDPA's tolling provisions. And because New York State generally does not apply the prison mailbox rule, see 22 N.Y.C.R.R. § 600.2(a)(6) (a motion "shall be considered filed only upon receipt"), and because some circuits have interpreted the term "properly filed" as synonymous with "filed in accordance with state law," this case presented a close question.

The Court ultimately ruled in favor of applying the prison mailbox rule here because New York State prescribes no deadline for filing coram nobis petitions. E.g., People v. Langfelt, 249 N.Y.S.2d 949 (App. Div. 1964). And "[w]ithout a time limitation, a prisoner's state coram nobis petition will always be timely regardless of when it is delivered to prison authorities or received by the court." Op. at 13. Because "[t]here is no and can be no real conflict between state law and federal law where there is no state deadline for filing the petition that tolls the AEDPA limitations period," the Court thus applied the federal prison mailbox rule to determine when a coram nobis petition is "properly filed" for purposes of tolling AEDPA's statute of limitations. Id. at 13-14.

An Unappealed Conviction Becomes "Final" for § 2255 Purposes When the Time for Filing a Notice of Appeal Expires

Moshier v. United States, Docket Nos. 04-5784, 04-5983 (2d Cir. March 17, 2005) (Newman, Straub, and Wesley) (per curiam): The Second Circuit, joining the two other circuits that have decided this question, ruled that an unappealed criminal judgment becomes final for purposes of calculating the one-year limit for filing a § 2255 petition when the time for filing a direct appeal (i.e., 10 days after entry of judgment) expires. Because the petitioner's original judgment of conviction was entered on April 29, 2002, and because he did not file a notice of appeal from that judgment, § 2255's one-year clock began running as of May 9, 2002 (10 days after April 29, 2002). And because the § 2255 petition was not filed until April 1, 2004, it was untimely.

Wednesday, March 16, 2005

Court finds that Speedy Trial Act Violation May be Harmless, United States v. Zedner, 04-0821-cr (2d Cir. April 28, 2005)

In March 1996, Jacob Zedner walked into several banks and attempted to negotiate bonds issued by "The Ministry of Finance of U.S.A." from the "Onited States" and with an expiration date of "forevev." The face value of the bonds was $40 million. Surprisingly, Mr. Zedner was never able to actaully negotiate the bonds. He was, however, able to negotiate some attention from the U.S. government, which found his efforts less than amusing. Indeed, the soundness and security of the United States financial system was preserved when Mr. Zedner was arrested by the U.S. Secret Service.

After 7 years of on-again/off-again institutionalization and conflicting competency evaluations, Mr. Zedner was found fit to stand trial whereupon he was convicted. At sentencing, Judge Platt rejected departure motions based on diminished capacity and overstated loss amount and sentenced him to 63 months in jail.

In a lengthy, fact-intensive opinion, the Court: (1) rejected Mr. Zedner's numerous Speedy Trial challenges; (2) rejected his 404(b) challenges; and (3) rejected his challenge to a conscious avoidance charge. Despite all this rejection, Mr. Zedner will receive a resentencing because the district court may have misunderstood its discretion to depart.

Speedy Trial Issues

Mr. Zedner challenged two different periods of time as having violated the Speedy Trial Act. The Court analyzed both periods as though no order of exclusion had been granted because the only order was one "for all time" that the trial judge entered at the beginning of the case which the Court found ineffectual.

The first time period at issue was a three-month period near the beginning of the case when defense counsel requested additional time to prepare for trial. The Court analyzed several other circuits' views on the balance between the interests of the public and the defendant in a speedy trial and held that even where no order of exclusion is entered, "when a defendant requests an adjournment that would serve the ends of justice [as the Second Cir. found], that defendant will not be heard to claim that her Speedy Trial rights were violated by the court's grant of her request, regardless whether the court made an 'ends of justice' finding under 3161(h)(8)."

The second time period was a seven month period of time in which, according to the Court, Mr. Zedner could not have been tried because of his lawyer's medical problems and because he himself had been found incompetent to stand trial during that time. The Court found that despite the mandatory language in the Speedy Trial Act that an indictment "shall be dismissed" where a defendant is not tried within the applicable period, the error in failing to exclude time during this period was harmless because Mr. Zedner could not have been tried. [This issue -- whether harmless error doctrine can in fact be applied to the Speedy Trial Act -- may conflict with other circuits and may create an interesting question for SCOTUS].

Yet another Speedy Trial claim was also rejected -- this one brought under the 6th Amendment -- based on the 7 year delay between indictment and trial. The Court balanced the factors set forth in Barker v. Wingo and determined that aside from the length of time itself, the factors weighed against a 6th A. violation, i.e., the Court found that the reasons for the delay were largely caused by Mr. Zedner, that he often requested continuances, and that he was not prejudiced by the delay.

Rule 404(b) Claim

Mr. Zedner challenged the district court's decision to allow testimony regarding his alleged fraudulent conduct 10 years prior to his arrest in the present case. Two witnesses claimed that he had induced them to sign over deeds to their homes in his name so that he could help them refinance their mortgages. They claimed that they then had to sue him to regain title. The Court found the testimony admissible because contrary to Mr. Zedner's defense that was delusional and lacked the requisite mens rea, the other acts "tended to prove Zedner's financial sophistication, his ability to execute complex schemes, and his ability to form intent to defraud."

Conscious Avoidance

The Court also rejected Mr. Zedner's objection to a conscious avoidance charge. Mr. Zedner argued that the jury could only reasonably find that he either delusional or not and that he therefore either knew the bonds were phony or didn't. Without much explanation, the Court found that the jury could have also concluded that he was aware of the high probability that they were fake and deliberately avoided confirming that fact. The Court then criticized the charge itself as potentially misleading the jury regarding the proper mens reas, but found that it did not rise to the level of plain error when read in light of the charge as a whole.

Downward Departure

Lastly, the Court remanded the case for resentencing because it seemed from the record that Judge Platt misunderstood his ability to depart downwardly based on diminished capacity and an overstated loss amount. Judge Platt seemed to indicate that because the jury found that Mr. Zedner had the requisite mens rea for conviction, he was precluded from granting a departure for diminished capacity. The Second Circuit pointed out that if that were the case, there would be no such thing as a diminished capacity departure -- as sentencing presumes a conviction, which presumes the requisite mens rea. So too, the conviction did not preclude a determination that the intended loss amount overstated the seriousness of the offense.

Circuit Approves Novel Use of Midtrial Superceding Indictment to Allege Missing Jurisdictional Element

United States v. Milstein, No. 01-1499 (March 10, 2005) (Van Graafeiland, Kearse, Wesley, Per Curiam). This case is chock full of interesting legal issues (including whether the defense of "laches" can be applied in a criminal trademark infringement case . . . it can't), but we'll try keep focused on the most salient aspects of the decision. First, the Court approved of the novel procedure employed by the District Court which permitted the government, midtrial, to amend an indictment that had failed to allege a necessary jurisdictional element. Second, the Court found a Fifth Amendment violation with respect to one of the counts of conviction based on what it concluded was a constructive amendment of the indictment. The Court therefore affirmed four counts of conviction, vacated the conviction on the count that was deemed constructively amended, and remanded for further proceedings on the vacated count (in the event sought a retrial) and for resentencing in light of Booker.

Facts: Moshe Milstein, through a number of different buinesses, bought, repackaged, and sold 3 foreign prescription drugs: Eldepryl (a Parksinson's disease treatment), Pergonal and Metrodin (fertility drugs). During the time period of his prescription drug sales, there was only one FDA-approved distributor of Eldepryl, and one for Pergonal and Metrodin. The FDA-approved distributors sold drugs that were made and packaged outside of the United States, but in compliance with FDA standards. The drugs that Milstein purchased were made for distribution outside of the United States, but Milstein stripped them of their original packaging, repackaged them with forged labels and packaging materials to mimic the FDA-approved drugs, and then sold the drugs in the United States to doctors, pharmacists, and pharmaceutical wholesalers.

The drugs Milstein sold were not identical to the FDA-approved variety. For one thing, the fertility drugs came from a different batch of the active ingredient than the drugs approved by the FDA. For another thing, the saline solution packaged with the fertility drugs was contaminated with bacteria and endotoxins and, therefore, was not "sterile" as claimed on the label. The government also offered evidence that Milstein undertook to hide his unlawful conduct: he sold drugs through two different companies which he registered as drug wholesalers in New Jersey, but not in New York (which was required in order to sell drugs in New York); the companies' registrations were filed in the names of other people; and when an investigation was in the offing, Milstein transferred $400,000 to an account in Israel by way of complex transactions routed through Switzerland.

Milstein was charged in a five-count indictment with distributing misbranded drugs in interstate commerce with fraudulent intent (21 USC 331(a) and 333(a)(2)), knowingly distributing wholesale prescription drugs in interstate commerce without a required state license (21 USC 33a(t), 333(b)(1), and 353(e)(2)(A)), knowingly distributing prescription drugs in violation of criminal trademark laws (18 USC 2320(a)), distributing wholeslae prescription drugs without providing a required history of transactions (21 USC 331(t), 333(a)(2), and 353(e)(1)(A)), and conspriacy to commit the first three crimes listed above. He was also charged with a tax count, to which he pled guilty after trial.

On March 8, 2000, immediately after the jury was sworn in at trial, the defense moved for a judgment of acquittal on the count that charged him with selling prescription drugs without a license because the indictment failed to allege the jurisdictional element, which requires that the transactions took place in interstate commerce. The government asked the court to return to the Grand Jury to add such an allegation. In the meantime, the trial continued. On March 17, 2000, Judge Dearie granted a "theoretical . . . mistrial" on the count, prompted by the "manifest necessity" of Milstein's motion for acquittal based on the jurisdictional defect. The government was given permission, however, to return to the Grand Jury to secure an amendment which would add the jurisdictional element to the count in question. Then, Judge Dearie held that the evidenced presented at the trial would be deemed presented in connection with the amended indictment. On March 22, 2000, the Grand Jury returned a superceding indictment, adding "in interstate commerce" where necessary. And as promised, the District Court incorporated all of the prior trial evidence nunc pro tunc ("now for then") into the record of the trial on the superceding indictment. On appeal, Milstein argued that the procedure violated his rights under the Fifth Amendment's Double Jeopardy Clause.

In its count charging Milstein with distributing misbranded drugs in interstate commerce with fraudulent intent, the government specifically alleged in the indictment that "[f]orgery or falsification of any part of the packaging material, including the instructional inserts, lot numbers or expiration dates, renders the drug misbranded under federal law," and charged that Milstein "regularly distributed [the modified drugs] that had been re-packaged using forged materials." It further claimed that Milstein (and others) "sold these re-packaged drugs as if they were the original product from the licensed manufacturers, thus distributing misbranded drugs." At trial, however, the government contended that its proof that the saline for the drugs was contaminated with bacteria and endotoxins was proof relevant to this count because the saline was labled "sterile," when in fact it was not. Indeed, when the government returned, midtrial, to obtain its superceding indictment, it presented evidence of this contamination to the Grand Jury as proof that the drugs were misbranded. But the government did not obtain an amendment of this count to include that specific allegation. Nonetheless, the District Court instructed the jury that it could find Milstein guilty of the misbranding count if the labeling suggestesd, falsely, that the saline was "sterile" when in fact it was contaminated. On appeal, Milstein argued that the instruction allowed him to be convicted of misbranding on the basis of the contamination evidence, constructively amending the indictment.

Court's Rulings: The Court rejected the defense argument that Milstein's Double Jeopardy rights were violated by the midtrial superceding indictment, followed by the District Court's incorporation of all of the prior trial evidence nunc pro tunc. The Court, citing the Supreme Court's decision in Illinois v. Somerville, 410 US 458 (1973), noted that the Fifth Amendment's Double Jeopardy Clause does not prevent retrial where a mistrial was required by "manifest necessity," which includes the need to correct a jurisdictionally defective indictment. The Court concluded that if a retrial is permissible in such circumstances, then the District Court's procedure was simply a way to minimize inefficiency. Given that the defense was on notice of the need for a superceder early on in the trial and did not have to change its strategy after the superceder was obtained, the Court endorsed the District Court's "somewhat unprecedented procedure."

The Court ruled for Milstein, however, on the constructive amendment issue. The government defended the trial court's instruction on the ground that the generally framed indictment covered the more specific theory that the drugs had been misbranded because they were labeled "sterile" when they were not. The Court rejected that argument. The Court held that by alleging that Milstein was charged with misbranding because he "re-packaged the drugs as if they were the original product from the licensed manufacturers" the government did not place Milstein on notice that it would also attempt to prove that the drugs were mislabled "sterile." The Court noted that the government's decision to present the contamination evidence to the Grand Jury when it sought the superceder sure made it look like the government had recognized this problem. But the government had failed to amend the count to include the contamination allegation. Accordingly, the Court vacated that count of the conviction, because "Constructive amendment is a per se violation of the Fifth Amendment," which requires that a defendant be convicted of conduct that was actually the subject of the Grand Jury's indictment. The Court did not accept the defense argument that the constructive amendment problem also required vacatur of the conspiracy count, because that count could be proved by overt acts which were not specified in the indictment, so long as there was no prejudice to the defendant, and the Court found no prejudice on the facts before it.

In addition, the Court rejected a defense argument that the Prescription Drug Marketing Act of 1987 violated the Commerce Clause and the 10th Amendment by requiring states to create a licensing scheme for wholesale distributors of prescription drugs, at least if they wanted wholesalers to be able to distribute drugs to another state. The Court basically found that the statute was merely "encouraging" rather than "coercive" (which is a 10th Amendment no-no) because a state could still choose not to create a licensing framework.

Finally, the Court noted that, even without the vacatur on one count, a Booker remand was required for re-sentencing, but went on to provide guidance to the District Court on two defense arguments relating to the District Court's "vulnerable victim" and loss calculation findings. In both instances, the Court upheld the District Court's approach, finding that victims with fertility problems or Parkinson's disease were "vulnerable" and that no credit from the loss amount should have been given for the value of the drugs sold, given that the medicine was contaminated. Indeed, a subsequent application note was later added to Sentencing Guideline 2B1.1 to make clear that there should be no credit for goods sold without regulatory approval.

Tuesday, March 15, 2005

Circuit Again Vacates Grant of Habeas by Judge Weinstein

Eisemann v. Herbert, Docket No. 03-2582 (2d Cir. March 11, 2005) (Newman, Sack, and B.D. Parker) (Op. by Newman): Within the span of 3 days, the Second Circuit has twice reversed Judge Weinstein's decision to grant § 2254 petitions brought by state prisoners in two separate cases. The other case, Benn v. Greiner, Docket No. 04-0527 (2d Cir. March 9, 2005), will soon be analyzed on this Blog.

Eisemann deserves a look for this introductory sentence alone: "Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son's state court appellate lawyer." Fortunately, the sole issue on appeal concerned whether trial counsel suffered from an actual conflict of interest that adversely affected his performance by representing both the father and the son. The father pleaded guilty before trial, and the son was subsequently convicted at trial -- while represented primarily by an associate of the infamous trial counsel -- of several counts of sodomy. After exhausting state remedies, the son brought a § 2254 petition in the E.D.N.Y. Judge Weinstein granted the petition.

The appeal turned on whether trial counsel's conflict "adversely affected" his performance. Under Second Circuit law, a defendant "need suggest only a 'plausible' alternative strategy that was not pursued at trial" as a result of the lawyer's conflict, even if the strategy is "not necessarily a 'reasonable' one." Op. at 8-9. This position appears to conflict with the law in several other circuits, which more demandingly requires that the alternative strategy foregone by conflicted counsel be an "objectively reasonable one." Op. at 9-10 (citing cases from the 4th, 8th, and 11th Circuits).

After noting the potential circuit split, Judge Newman went on to hold that even under the Second Circuit's less demanding rule, the petition should not have been granted: The petitioner could not show even a "plausible" trial strategy that was foregone by trial counsel as a result of his representation of the father. The only such strategies proffered by the petitioner were (1) trial counsel's failure to call the father to testify on the petitioner's behalf, and (2) trial counsel's failure to pursue a plea agreement with the state to testify against petitioner's father. The first strategy was not a "plausible" one, the Circuit ruled, because "there is nothing in the record that provides the slightest indication as to what [the father] would have said if called or even that he would have said anything at all." Op. at 11. The second strategy was not "plausible" because "the record does not contain evidence that [a plea] might even have been offered by the prosecutor." Op. at 14. The Circuit thus concluded that because "there is nothing in the record to suggest that [trial counsel]'s conflict caused him to forgo a plausible defense theory," the petition should not have been granted. Id.

Alternatively, the Court ruled that the petition should not have been granted because of the deference to state court rulings demanded by AEDPA. See 28 U.S.C. § 2254 (petition cannot be granted unless the state court's ruling "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court"). Noting the circuit split mentioned above as well as " the absence of a definitive ruling by the Supreme Court as to whether ineffective assistance claims based on a conflict of interest are to be assessed under the 'plausible' strategy standard of this Circuit or the 'objectively reasonable' standard of other circuits," the Court concluded that "it was not unreasonable for the state court to assess and reject [the son's] claim under what appears to have been the slightly more rigorous standard." Op. at 16.

Tuesday, March 08, 2005

Circuit Again Upholds Terms of Proffer Agreement, Reading Waiver Language Broadly

United States v. Barrow, No. 03-1074 (March 2, 2005)(Sack, Raggi and Hall, Op. by Raggi). In this case, the Court upheld the district court's conclusion that the defense had opened the door to the government' s use of statements that the defendant made at proffer sessions, even though the proffer statements did not directly contradict counsel's assertions at trial.

Facts: Defendant Calvin Johnson was charged with selling crack cocaine either to an informant or an undercover officer on various dates in 2001. Shortly after his arrest, he made the decision to try to cooperate, and attended three debriefings with the government during the first half of 2002. At each proffer session, he executed a proffer agreement that provided that the prosecutors could use the statements that Mr. Johnson made "as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [Johnson] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)." A few weeks after his third proffer, defense counsel told the government that Mr. Johnson no longer wished to cooperate.

The case went to trial in October of 2002. In his opening statement, defense counsel asserted unequivocally that, as to the first four sales charged in the indictment, "this is a case of mistaken identity." Counsel argued that the true seller was the brother of Mr. Johnson's co-defendant. In addition, when cross-examining a detective about one of those sales, he accused the officer of fabricating testimony about a meeting with the informant on that particular date.

To rebut these arguments, the government sought to introduce proffer statements by Mr. Johnson to the effect that in 2001 he routinely sold crack at the address where the charged sales occurred. The district court held that these statements "fairly rebutted" counsel's assertions, even though Mr. Johnson had not admitted selling on the precise dates charged in the indictment.

The Court's Ruling: The Court of Appeals had no trouble affirming the district court's ruling. It upheld, as it has many times, the proffer agreement's waiver of the privilege that would otherwise apply under F.R.E. 410, under which statements made during plea negotiations are inadmissible.

The Court went on to conclude that defense counsel's conduct had triggered the waiver, rejecting the argument that "only a specific or direct contradiction between [the] proffer statement and an assertion by counsel has this effect." First, the Court examined the language of the waiver itself, noting that it was written in expansive terms, applying to "any evidence" offered by the defense. Clearly both counsel's factual assertion in opening that someone other than the defendant had committed the crime and the assertion implied by his cross-examination that the officer had fabricated events underlying one of the charges were "within the four corners of the waiver provision." The Court also rejected the claim that the proffer statements should not have been admitted because they did not directly contradict the factual assertions made. The Court noted that the agreement indicated that the purpose of admitting proffer statements would be "to rebut," and that proper rebuttal "is not limited to direct contradiction." The waiver language in this case therefore was "fairly construed to apply to any proffer statements that could fairly rebut" defense counsel's factual assertions.

A Few Doors Still Open: This decision leaves a few openings for attorneys struggling to affirmatively defend a case where the defendant has proffered. First, the Court here relied on an exacting reading of the precise wording of the agreement. For example, in a footnote the Court distinguished the agreement here, waiving Rule 410 in broad language, from agreements in other cases where the wording was narrower. Thus, in any case where the disputed agreement is worded differently from the agreement here, there is an argument that this case should not govern. The second opening relates to the definition of "factual assertion." The Court noted that it is easy to conclude that a "factual assertion" has been made where, as here, counsel has unequivocally named someone other than the defendant as the real perpetrator. Where, however, defense counsel's arguments or questions "assert facts implicitly rather than directly," there may not be a "factual assertion" that opens the door to the defendant's proffer statements. Finally, and perhaps most importantly, the Court noted that, even if the trial judge is satisfied that a factual assertion has been made, triggering the Rule 410 waiver, that conclusion permits, but "does not mandate receipt of the proffer statements in evidence." The district court always has "considerable discretion to exclude relevant evidence that may inject 'unfair prejudice' or 'confusion' into the jury's resolution of the issues in dispute." Thus, for example, the trial court might decide to "strike a question or argument" rather than admit the defendant's proffer statements in rebuttal, or might exercise its discretion to exclude proffer statements when it concludes that the triggering event was inadvertent and brief, and counsel agrees not to pursue the matter further.

District Judge Holds That A New York "Y.O" Adjudication Is Not an ACCA Predicate

United States v. Fernandez, No. 04 Cr. 539 (RPP)(S.D.N.Y. January 31, 2005)(Judge Patterson)

In an important ruling for defendants who face a 15-year mandatory minimum under the Armed Career Criminal Act (generally known as "A.C.C.A," and set out in 18 U.S.C. § 924(e)), Judge Patterson recently held that a New York State youthful offender adjudication (a "Y.O.") does not serve as a predicate conviction under this sentence enhancement statute.


Clint Fernandez, who pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), had the following relevant prior convictions. A 1993 conviction for second-degree robbery, for which he received a Y.O., a 1995 state drug conviction for a Class C felony, and a 1998 state attempted robbery conviction. It was indisputed that the 1995 and 1998 convictions were A.C.C.A. predictates. The only question was whether the 1993 Y.O. was, as well.

The Judge's Ruling

Under A.C.C.A., if Mr. Fernandez had had three qualifying convictions -- that is, for "serious drug offenses," a definiton met by the 1995 conviction, or "violent felonies," such as the 1998 attempted robbery, then his conviction felon in possession conviction would have carried a mandatory minimum of 15 years' imprisonment and a maximum of life, instead of the 10-year maximum (with no mandatory minimum) that ordinarily applies.

Judge Patterson ruled that Mr. Fernandez' 1993 Y.O., although for robbery, was not an A.C.C.A. predicate. In reaching this conclusion, the judge first looked to 18 U.S.C. § 921(a)(20), which provides, in pertinent part, that "[a]ny conviction that has been ... set aside ... shall not be considered a conviction for purposes of this chapter," which includes A.C.C.A. He then noted that under New York law, a Y.O. adjudication "vacate[s] and replace[s]," or "substitute[s] for" the underlying conviction. Finally, the judge looked at several recent Second Circuit cases upholding the use of Y.O.'s for various guideline enhancement purposes, noting those decisions had all concluded that under New York law, the effect of a Y.O. is to "set aside" the conviction, even though it does not "expunge it," a feature necessary for the adjudication to be excluded from the sentencing guidelines. See United States v. Matthews, 205 F.3d 544, 548 (2d Cir. 2000); United States v. Cuello, 357 F.3d 162, 167 (2d Cir. 2004). Since, unlike the sentencing guidelines, the federal statute exempts convictions that have been "set aside," and since New York Y.O. adjudications do in fact "set aside" the underlying conviction, Judge Patterson concluded that a New York Y.O. is not an A.C.C.A. predicate.

This was good news for Mr. Fernandez, who was sentenced to 57 months' imprisonment, instead of 180.

The Fernandez decision, which the government has not appealed -- indeed it agreed in the district court that Y.O.'s are not A.C.C.A. predicates -- is significant for another reason. Under its reasoning, a Y.O. cannot serve as the predicte for a felon in possession conviction at all. Thus, if a person is arrested and charged with being a felon in possession under § 922(g)(1), and his only prior felony resulted in a New York Y.O. adjudication, under Fernandez, he is innocent (legally, if not factually) of the crime with which he is charged because he does not have a felony conviction as defined in the relevant firearms statutes.

Monday, March 07, 2005

The "Prior Conviction" Exception to the Apprendi Rule Takes a Very Large Step toward Its Impending Demise

Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court "is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Although the holding of the case is important in itself, it is the decision's uncertain ramification for the continuing viability of the "prior conviction" exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely on police arrest reports (and the complaint applications they supported) to demonstrate that the defendant's conviction was in fact for a "generic burglary" (i.e., breaking & entering a building as opposed to a car or boat), which qualifies as an ACCA predicate, even though nothing else in the record established this. The Supreme Court rejected this attempt, holding as a matter of statutory interpretation and in light of its prior decision in Taylor v. United States, 495 U.S. 575 (1990), that a court cannot rely on such documents (described as "documents submitted to lower courts even prior to charges," Op. at 7) to determine whether a prior conviction qualified as an ACCA predicate. Instead, where the prior conviction resulted from a guilty plea, a court "is limited to [examining] the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judges and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Op. at 12.

As noted, the more interesting aspect of the case is what it says about the viability of the "prior conviction" exception to the Apprendi rule, established in Almendarez-Torres v. United States, 523 U.S. 224 (1998). Concerning this point, the majority comes very close to overruling Almendarez-Torres, but stops just short of inflicting the coup de grace. Thus, after rejecting the Government's position through statutory interpretation and a close analysis of Taylor, Justice Souter tantalizingly writes that "[d]evelopments in the law since Taylor . . . provide a further reason to adhere to the demanding requirement that any sentence under the ACCA rest on a showing that a prior conviction 'necessarily' involved . . . facts equating to generic burglary." Op. at 10. Those "developments", of course, refer to the Court's Sixth Amendment jurisprudence as evidenced in cases such as Jones v. United States, 526 U.S. 227 (1999), and Apprendi (2001), holding that, as a general matter, facts that "raise the limit of the possible federal sentence must be found by a jury." Op. at 10. Because a "sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, [] the dispute raises the concerns underlying Jones and Apprendi." Op. at 11. In such a situation, Justice Souter wrote, Almendarez-Torres does not help the Government: "While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Id. Relying on "[t]he rule of reading statutes to avoid serious risks of unconstitutionality," the majority concludes that this rule "counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea." Op. at 11-12.

After Shepard, therefore, the most that one can say is that a majority of the Supreme Court has a "serious constitutional doubt" about the continuing viability of Almendarez-Torres. Justice Thomas goes further in his concurrence, writing that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided." Concurrence at 2. Of course, this has been true since Apprendi in 2001, when Justice Thomas (who provided the 5th vote in Almendarez-Torres) first made his mea culpa in declaring that he erred in joining the majority in Almendarez-Torres; yet the Court continued to pay lip service to the prior conviction exception in subsequent cases (such as, most famously, Blakely in 2004). A footnote in Justice Souter's majority opinion enhances the anti-Almendarez-Torres flavor, see Op. at 12 n.5, but again does not settle the issue.

Indeed, even the dissent (by Justice O'Connor, for 2 other justices; the Chief did not participate) adds fuel to the "death of Almendarez-Torres" fire by "strongly suspect[ing] that the driving force behind today's decision is not Taylor itself, but rather [the] further developments in the law" represented by Apprendi. Dissent at 10.

It would appear, in sum, that the prior conviction exception to the Apprendi rule will not survive for long. Though some may wonder why the Supreme Court did not simply do so in Shepard, there is clearly a majority that believes that Almendarez-Torres was wrongly decided.

District Court Retains Inherent Authority to Interpret Ambiguities in Its Own Orders, Regardless of Rule 35 / 36 Constraints

United States v. Silvio Spallone, Docket No. 03-1791 (2d Cir. March 4, 2005) (Sack, Raggi, and Hall) (Op. by Raggi): In this case, the Second Circuit clarifies that a district court retains the power to interpret ambiguities in its own sentencing orders, even outside the temporal and other limits set for correction of sentences found in Rules 35 & 36 of the Federal Rules of Criminal Procedure.

Here, the defendant pled guilty to tax evasion and was originally sentenced to 30 months' imprisonment, 3 years' supervised release, and $2.45 million in restitution. Following a Rule 35(b) motion by the Government (in exchange for the defendant's cooperation while in prison), the district court entered an order stating that "the defendant [] be sentenced to time served." The defendant was promptly released.

After his release, the defendant claimed that neither the supervised release nor the restitution portions of his sentence were still in effect as a result of the "time served" order. Nearly a year and a half after the original order was entered, the district court entered another order clarifying that the earlier order merely shortened the term of imprisonment and did not abrogate any other aspect of the original sentence.

The Circuit affirmed this new order on appeal, finding that it correctly interpreted the earlier order in light of all the surrounding circumstances. And although the new order was not authorized by either Rule 35 or Rule 36, the Circuit held that a district court retained the inherent authority to interpret an ambiguous order at a later time.