Wednesday, June 29, 2005

Another Habeas Petition Dismissed on Procedural Grounds

Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel's failure to preserve or present the relevant issues to the state courts. No new rule is established by the decision; it is nonetheless worth a perusal, if only to remind oneself of the hazards faced by habeas petitioners if counsel in state proceedings fail to exercise great care in prosecuting the state appeal.

The essential facts are simple. Smith was tried for murder in state court after he shot the victim to death. Smith's sole claim is self-defense, arguing that the victim was a gang member of whom he was quite afraid. Smith sought to introduce 2 pieces of evidence to corroborate this defense -- the tape of Smith's 911 call right after he shot the victim (in which he indicates to the 911 operator his great fear that victim's fellow gang members were coming after him) and the testimony of his aunt, who would corroborate Smith's fear of victim and his gang during the time preceding the shooting. The state trial court refused to admit either piece of evidence, and Smith was convicted. After unsuccessful challenges in state court, Smith filed a § 2254 petition in the E.D.N.Y. Judge Weinstein denied the petition on procedural grounds, and the Circuit affirmed.

The question was easy regarding the aunt's testimony. Apparently, counsel for Smith neglected to raise this issue to the N.Y. Court of Appeals in his leave application. This claim is therefore unexhausted for habeas review. Moreover, because it is now too late for Smith to raise this claim in state court, the Circuit ruled that it was procedurally defaulted.

The question regarding the 911 tape was only slightly more difficult to resolve. Apparently, while defense counsel raised this issue to the relevant state courts, he argued only that the trial court's exclusion of this evidence violated state evidentiary rules. Counsel never made the constitutional argument that Smith now makes on his habeas petition -- i.e., he was deprived of his constitutional right to present a defense by the exclusion of this testimony. Thus, the Circuit ruled, Smith failed to "fairly present" the constitutional claim to the state courts. The claim is therefore unexhausted and, moreover, procedurally defaulted for the same reason as the claim regarding the aunt's testimony.

Draconian Forfeiture Penalty Upheld in Money Laundering Case

United States v. Bermudez, Docket No. 02-1699 (L) (2d Cir. June 29, 2005) (Walker, Pooler, Wesley) (per curiam): Let this be a warning to all the kids out there: You launder money, you lose something even more precious than your freedom -- your Miami condo and even your Swiss bank account. In this short opinion, the Court affirms a district court's order (1) requiring the defendant -- convicted of laundering drug proceeds in Colombia -- to forfeit $14.2 million to the Government (the amount of money he was accused of laundering on behalf of his drug dealin' clients), and (2) substituting his Miami residence and funds in a Swiss bank account in lieu of this amount because the defendant did not actually have this money (after all, he was only laundering it for his clients, not keeping it). The Court acknowledged that such forfeiture was "extremely punitive and burdensome," given that defendant likely only received a small fraction of the $14.2 million amount as his fee, but ruled that the relevant statutes clearly contemplated this result.

Those interested in the details of the statutory analysis will have to consult the opinion themselves; my clients luckily face only the prospect of lengthy imprisonment and not the "extremely punitive and burdensome" punishment of forfeiture.

Tuesday, June 28, 2005

Justice Ginsburg to the Rescue? Appellate Waivers and the Supreme Court's Recent Decision in Halbert v. Michigan

Credit must be given to Professor Berman for spotting some great language from the Supreme Court's recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit's decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg's opinion for the majority, expecially as highlighted and construed by Justice Thomas in his dissent, contains great language gutting Morgan's rationale and supporting an argument that a defendant cannot waive a right that was not previously recognized -- e.g., his Sixth Amendment right not to be sentenced under the mandatory Guidelines regime.

Halbert's primary holding is that a defendant has the constitutional right to appointed counsel on his/her first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter of right. In reaching the conclusion that Halbert's right to counsel was violated when Michigan refused to appoint counsel to help him file a leave to appeal application, Justice Ginsburg also rejected the State's claim that even if such a right existed, Halbert waived that right when he pled nolo contendere to the charge against him. In so doing, Justice Ginsburg explained that "at the time he entered his plea, Halbert . . . had no recognized right to appointed appellate counsel," and cited as support Iowa v. Tovar, 541 U.S. 77 (2004) for the proposition that "waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a 'knowing, intelligent act done with sufficient awareness of the relevant circumstances.'" 2005 WL 1469183 at *11. (NB: The passage cited from Tovar includes a quote from Brady v. United States, 397 U.S. 742 (1970), which is cited prominently by . . . . Morgan). A fair argument, based on this explanation, is that appellate waivers entered into before Blakely are not enforceable because the defendant could not have knowingly & intelligently waived his Sixth Amendment right not to be sentenced under mandatory Guidelines before Blakely, since there was "no [such] recognized right" at that time.

Recognizing the import of this statement, Justice Thomas went apopleptic. He described the statement as "bound to wreak havoc" on other areas of waiver law, and then cited as an example -- yes, you guessed it -- the enforcement of appellate waivers in light of Booker. As he wrote:

"For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was "no[t] recognized," and hence that the right was nonwaivable."

2005 WL 1469183 at *22 fn.2. Thank you, Justice Thomas, for making the argument for all of us. (Of course, the argument is even better for those defendants who entered into their appellate waivers before Blakely was decided).

Where Government Filed § 3553(e) / § 5K1.1 Motion at Sentencing, Crosby Remand Required even though Defendant Was Sentenced to the Statutory Minimum

United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant's "substantial rights" (in plain error parlance) were affected by the Booker error (i.e., the use of mandatory Guidelines). In this case, the defendant was sentenced to the 10-year statutory minimum for a § 841(b)(1)(A) offense at the pre-Blakely sentencing, despite the fact that he cooperated with the Government and earned a § 3553(e) / 5K1.1 motion as a result. Defendant sought a Crosby remand on appeal and the Government opposed, citing United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005), and arguing that because the defendant received the statutory minimum sentence, any Booker error in treating the Guidelines as binding was harmless. The Circuit disagreed and ordered a Crosby remand, distinguishing Sharpley on the ground that the Government filed a § 3553(e) motion on Tesoriero's behalf and thus that the sentencing judge was no longer bound by the 10-year minimum.

This case serves as an excellent rebuttal to the Government's claim that a Crosby or Fagans remand is unnecessary in a particular case because the Booker error was harmless. (One would have thought that such arguments were foreclosed by Crosby and especially Fagans, which explicitly did not undertake a harmless error analysis but simply remanded for resentencing). This is so because the sentencing judge here, in light of the substantial assistance motion filed by the Government, was not bound by either the statutory minimum or the Guidelines when s/he nonetheless imposed the 10-year sentence. Thus, if the Booker error is not harmless even in this context, it is hard to imagine a situation (outside of the one presented in Sharpley) in which the Court would find a Booker error harmless.

Saturday, June 25, 2005

Panel Concludes That District Court Error In Determining Fraud Loss Amount Requires Remand for Resentencing

United States v. Canova, Docket Nos. 03-1291, 03-1300 (2d Cir. June 21, 2005) (Sack & Raggi) (Judge VanGraafeiland passed away after oral argument) (Op. by Raggi): In this lengthy opinion -- issued 1 1/2 years after the case was argued -- the Circuit remanded for resentencing, after the district court had imposed a one-year term of probation premised upon (1) a finding that no pecuniary loss resulted from the defendant's involvement in a Medicare fraud, and (2) a downward departure grounded in the defendant's extraordinary history of public service and good works. The Panel concluded that the district court had erred in calculating the relevant loss amount (by some $5 million) but rejected the Government's challenge to the downward departure. The Court concluded that the error in calculating the loss amount was signficant enough to preclude a finding that the sentence was reasonable notwithstanding the error. But in the course of remanding, the Panel appeared to leave open the possibility that the district court could re-impose the same sentence based on the district court's determination that (1) the $5 million loss amount overstates the serious of the offense, (2) a greater departure from the now-higher offense level was warranted, and/or (3) a non-Guidelines sentence was appropriate based on a consideration of all of the section 3553(a) factors. For reasons that won't be discussed here, the Panel also rejected the defendant's cross-appeal of the district court's denial of its Rule 33 motion. In so doing, however, the Panel reiterated that a Rule 33 motion must be filed within 7 days of the verdict or within such time as the district court sets during the 7-day period. The Court left for another day the question of whether the Government's challenge to a late Rule 33 filing -- such as occurred in this case -- could be forfeited (based on the Government's consent to the late Rule 33 filing) or whether the error is jursidictional, in which case it cannot be forfeited. (See Kontrick v. Ryan, 540 U.S. 443, 454-56 (2004) (noting distinction between rules governing subject-matter jurisidction and "an inflexible claim-processing rule" which can be forfeited)). The take-away for practitioners is to either file your Rule 33 motion within 7 days of the verdict, or make certain that the district court, within the 7-day period, sets a Rule 33 motion deadline that gives you enough time to file your papers; you cannot get a second extension granted outside the 7-day period!

The essential facts are these: Canova, a VP for Raytel Cardiac Services, was charged with conspiring to defraud Medicare, with obstruction of Medicare's investigation, and with a variety of false statement in connection with the same conspiracy/obstruction. Raytel performs "transtelephonic pacemaker testing" for Medicare patients at government expense. Such testing allows a technician at a remote location to test the pacemaker's operation by having the patient use a portable device to transmit telephonic signals that can be converted into an ECG report for review by a cardiologist. Medicare apparently requires that the pacemaker be monitored in 3 functioning modes for 30 seconds each, with the results recorded on a strip of magnetic tape. Without getting bogged down in the details, the opinion makes clear that a cardiologist would typically only look at representative segments of the first 2 test phases. As a result, as Raytel's volume of business increased, its technicians began departing from Medicare specifications by recording only a partial strip, or none at all, for the last 30 second phase, which was deemed less critical.

The evidence at trial reflected that Canova had pressured subordinates to meet higher performance quotas, which, in turn, had led technicians to cut corners with respect to the last 30 second phase of the testing. Canova learned about the non-compliance, but continued pushing for the higher quotas. When Medicare complained about the non-compliance, Canova falsely insisted that Raytel was complying. During an audit, Canova allegedly (1) sent an e-mail to Raytel's managers instructing them to tell auditors that Raytel was complying with all Medicare procedures for producing the strips, and (2) made additional false statements to Medicare representatives asserting that Raytel was complying. Canova was convicted on four of the five counts on which he was tried.

There were a number of key sentencing issues but for our purposes the most important were the issues of (1) loss amount and (2) a departure for extraordinary public service and charitable works. The government argued for and the PSR included a 13-level enhancement under the fraud guidelines, which was premised on a finding that Medicare had paid Raytel $10 million during the two-year period covered by the audit and at least 1/2 of the tests performed were non-compliant. Canova, however, had adduced evidence that the Raytel tests were every bit as clinically sound as those demanded by Medicare, even if they were technically non-compliant. Specifically, the defense offered the opinions of several cardiologists, the fact that the VA did not even record ECG strips for the 3rd phase of the test, and the fact that such testing is not part of the protocol set forth in the guidelines doctors use for managing patients with pacemakers. The district court accepted the defense theory and concluded that Medicare had suffered no real loss. The district court applied the obstruction of justice guideline rather than the fraud guideline (leaving Mr. Canova facing 15 to 21 months), and then departed 6 levels in consideration of his service to his country and his community. Specifically, Canova had served in the Marine for 6 years, had been a volunteer firefighter and risked his life to save others, and had provided emergency medical care to strangers in the course of his civilian life.

On appeal, the Government challenged, among other things, the downward departure and the district court's finding that there was no loss to Medicare resulting from the fraud. Noting that part of Canova's misconduct obstructed Medicare's audit and that, as a matter of Medicare regulations, Medicare could have recouped the monies paid to Raytel based on non-compliance with the contract specifications, the Panel concluded that there was an intended loss here. The Panel reasoned that "although a district court enjoys considerable discretion in calculating the loss attributable to a particular fraud, the record in this case did not permit it to conclude that the government sustained no loss from Canova's fraudulent schemes to substitute an abbreviated pacemaker test for the longer one required by Medicare specifications and to conceal that fraudulent substitution in order to prevent the government from exercising its right to recoupment." The Court noted that the $5 million loss amount should have been factored into the Guidelines "considered" by the district court as part of its section 3553 analysis. As a result, "[b]ecause there is a signficant difference between the Guideline range calculated to include this loss and the Guideline range relied upon by the district court the error might well have affected the ultimate sentence, even though the district court applied a downward departure." Slip op. at 47. The Panel reiterated that even under a discretionary Guidelines regime, the applicable range will serve as a "'benchmark or a point of reference or departure'" as the court exercises its expanded discretion" after Booker and Crosby. Slip op. at 48 (Citing United States v. Rubenstein, 403 F.3d 93, 98 (2d Cir. 2005)). The Panel notably declined to hold that every incorrectly calculated Guidelines sentence will necessarily require a remand, but reasoned that the error in this case was too large to ignore and could affect the sentence upon remand.

In good news for defendants, the Court rejected the Government's claim that the district court had improperly departed, holding that the downward departure for extraordinary public service and good works was fully supported by the record. (The Court also held that the Government had waived any argument challenging the departure by failing to object at the district court level, but considered the issue on the merits in light of the need for resentencing.) At the risk of reading too much into the opinion, the decision also left open the possibility that the district court could resentence Canova to probation even with the substantially higher starting point under the Guidelines. In one footnote, the Court pointed out that the district court (1) "may, of course, reconsider [its decision to impose a 6-level departure] on remand in light of the higher Guidelines range dictated by the proper application of the loss enhancement," and (2) may decided, after considering all of the section 3553 factors, "not to sentence Canova within the Guidelines scheme, but to impose a non-Guidelines sentence." Slip Op. at 55, n. 29. In an earlier footnote, the Panel "expressed no view" as to whether a departure for "loss overstates" would be appropriate on the facts of the case, under then-applicable USSG 2F1.1, cmt. n.11. Slip Op. at 39, n.21. Taken together, these statements would seem to give the district court substantial latitude to reimpose a sentence of probation should it determine (yet again) that such a sentence is reasonable for this particular defendant.

No Double Jeopardy Violation to Impose Consecutive Sentences Based on Two Successive Shootings at Different Targets under New York's CPW-2nd Law

McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, "convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate petitioner's double jeopardy rights when the two counts reflected shootings at two victims getting out of the same vehicle in rapid succession." Op. at 1-2. CPW-2nd punishes anyone who "possesses a loaded firearm . . . with intent to use the same unlawfully against another." The evidence at trial showed that McCullough approached a parked car with a loaded gun and fired at Person A when A fled the vehicle from the driver side of the car. McCullough then went to the passenger side, threatened Person B (another occupant of the car), pulled B out of the car, and fired in B's direction as B ran off.

The Court finds no Double Jeopardy violation, reasoning that:

(1) Under the Double Jeopardy Clause, when two separate acts allegedly violate the same statute, the governing question is simply one of legislative intent: Did the legislature in enacting the law intend to punish a continuous offense or distinct acts? Op. at 4, citing Blockburger, 284 U.S. 299, 302-303 (1932). If the former, then "there can be but one penalty," but if the latter, "then each act is punishable separately." Id.

(2) The New York Court of Appeals has construed CPW-2nd as permitting multiple sentences for successive shootings, so long as the fact-finder determines that the defendant had distinct "intents" in performing the successive acts. As it explained in People v. Okafore, 72 N.Y.2d 81, 88-89 (1988), "Inasmuch as two criminal intents are discernible, constituting discrete culpable events and not a single continuing one, each could be separtely prosecuted." Thus, if the evidence shows that "the original unlawful intent [(present when the defendant first fired the gun)] is abandoned and subsequently a new intent is formed to use the weapon against others during the period of possession, more than one crime is committed." Id.

(3) The critical question thus becomes this: "Did the defendant have one continuous intent to harm one or more people, or an intent to harm one person that ended followed by a new intent to harm another person?" Op. at 10. And in this case, the "issue of intent was put to the jury, and the jury found that McCullough had the requisite intent to commit two weapons possession offenses." Id. Therefore, the consecutive sentences that McCullough received for these two offenses do not violate the Double Jeopardy clause.

Preponderance Standard Proper for Determining Whether Defendant Breached Plea Agreement

United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court's reasoning is this: "Booker. . . did not speak to nor, in our view, affect the appropriate standard of proof applicable to a finding that the defendant breached his plea agreement. Such a finding was before Booker, and remains after Booker, within the province of the sentencing judge subject to a preponderance of the evidence standard." Op. at 3.

In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard of proof for fact-findings at sentencing that greatly increase the defendant's sentencing range, especially if those facts concern either acquitted conduct or uncharged conduct?

Friday, June 24, 2005

No Right of Confrontation at Sentencing

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The Court thus rejected the defendant's claim that his confrontation rights were violated when the district court relied on hearsay testimony introduced at a Fatico hearing to substantially increase his Guidelines sentencing range.

Unfortunately, Martinez is a short opinion that fails to address or account for the revolution wrought by the Apprendi line of cases. The decision makes no effort to, as Justice Stevens aptly put it in his Booker majority opinion, "preserve Sixth Amendment substance" in light of the realities of modern sentencing practice. 125 S. Ct. at 752.

One aspect of the Court's reasoning is particularly suspect. After concluding that neither "Crawford nor Booker so undermined the rationale of [earlier] Second Circuit precedent [approving of] the consideration of hearsay testimony at sentencing" as to require revisitng or overruling those prior cases, the Court offers another reason for rejecting the defendant's effort to import the procedural protection embodied by the right of confrontation into the sentencing context. As the Court explains:

"We find it significant, moreover, that judges imposing sentence in accordance with Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. . . . . [And] if consideration of hearsay testimony during a sentence proceeding was not prohibited under a mandatory Guidelines regime, there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker."

Op. at 8. This is a bad argument that rests on a highly questionable premise -- that "consideration of hearsay testimony during [sentencing] was not prohibited under a mandatory Guidelines regime." In light of Justice Stevens's "remedial majority" opinion in Booker, which of course ruled that the mandatory Guidelines regime violated defendants' Sixth Amendment jury trial right, there is good reason to believe that the same regime, by allowing courts to rely on hearsay to increase the applicable Guidelines range (i.e., the "statutory maximum" within the meaning of Blakely), also violated defendants' confrontation right. That is, since a fact that increases a sentencing range under mandatory Guidelines must be found by a jury under the reasonable doubt standard, and thus treated like an element of the offense, it seems logical to apply other procedural protections ordinarily attendant to the fact-finder's determination of whether the existence of the element has been proven -- e.g., the right of confrontation. Whether there should be a confrontation right under the advisory Guidelines regime created by Breyer's remedial opinion in Booker, in short, cannot be determined by "simple logic."

Circuit Affirms Denial of Habeas Petition Based on Trial Court's Bar on Attorney-Client Communication during Client's Testimony

Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application of the governing Supreme Court precedent. Despite its narrowness, the opinion discusses an issue with broad implications for habeas petitions under the AEDPA deferential standard. The Court explained that where the governing Supreme Court precedent provides no bright-line rule but instead only a "roughly defined" one requiring a context-specific inquiry, it is less likely that the state court’s applications of that precedent will be considered unreasonable, and thus less likely that the writ will be granted under §2254(d)(1).

The essential facts are as follows. Serrano was tried and convicted in state court of second degree murder. During a trial marked by "many heated exchanges" between the court and defense counsel, the court twice barred defense counsel from conferring with Serrano during recesses in his testimony. The first bar occurred towards the end of a five-minute recess during Serrano’s direct testimony. Defense counsel protested and was fined for contempt. The second occurred during a ninety-minute lunch recess in the midst of Serrano’s cross-examination. Before issuing this bar, the judge considered allowing counsel to confer with Serrano, but not as to any matter related to his testimony. However, counsel refused to assure the court that he would not discuss the ongoing testimony, and the judge ordered counsel to be taken into custody for the rest of the lunch break.

Serrano exhausted his deprivation-of-counsel claim based on these two incidents in state court, and then filed a habeas petition. The district court denied the petition, and the Circuit affirmed. In doing so, the Court noted that the governing Supreme Court precedent for Sixth Amendment claims based on deprivations of counsel during recesses is found in two cases: Geders v. United States, 425 U.S. 80 (1976) and Perry v. Leeke, 488 U.S. 272 (1989).

In Geders, the Supreme Court ruled that the trial court’s order barring the defendant from consulting with his counsel about anything during a seventeen-hour overnight recess between his direct and cross-examination violated his Sixth Amendment right to counsel. Perry, on the other hand, ruled that a court’s barring of attorney-client communications during a fifteen-minute recess that interrupted the defendant’s testimony did not violate the Sixth Amendment. Acknowledging that the line between Perry and Geders was thin, the Court nonetheless explained that it was one of a "constitutional dimension" whose distinction lay in the fact that the defendant has no constitutional right to confer with counsel about his testimony while that testimony is in progress. The bar in Geders was improper because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters going beyond the defendant’s testimony, while the bar in Perry was proper because it is appropriate to assume that during a short recess nothing but the testimony would be discussed. Unfortunately, even though the Court claimed to draw a "line of constitutional dimension," Perry failed to provide lower courts "faced with a continuum of recess possibilities" with sufficient guidance to clearly discern when bars on attorney-client communications constitute Sixth Amendment violations.

Accordingly, as noted in the Circuit’s opinion, applications of the Geders and Perry precedent have yielded divergent results in the lower courts. The Circuit declared that its own interpretation in Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000) – that courts should not restrict the defendant’s ability to consult with his attorney absent an important need to protect a countervailing interest – while not binding for habeas review, may provide guidance as to what constitutes a reasonable application of Geders and Perry. It quickly quashed this ray of hope, however, by concluding that since "the governing rule remains so roughly defined, [it was] less likely to conclude that a given interpretation or application [by a state court] is ‘contrary to’ or an objectively ‘unreasonable application of’ Supreme Court precedent."

The Circuit thus unsurprisingly concluded that the state courts’ application of Geders and Perry did not result in a decision that was "contrary to" or an "unreasonable application of" those cases and denied the writ. Since the first bar was only momentary, it was appropriate for the trial court to assume that nothing but Serrano’s testimony would be discussed. Regarding the ninety-minute bar, the court noted that the ban was only issued after counsel specifically refused to assure the court that he would not discuss Serrano’s ongoing testimony during the recess. Placing the blame squarely on counsel, the Circuit stated that defense counsel’s refusal entitled the judge to assume that Serrano’s testimony would be discussed during the recess, and thus that the bar on communication was proper.

[By Sylvia Heredia, 2-L at Harvard Law School]

Wednesday, June 22, 2005

Some Great Dicta about the Limits of the Almendarez-Torres Exception

United States v. Weisser, Docket No. 01-1588 (2d Cir. June 20, 2005) (Walker, Cardamone, and Owen, D.J.) (Op. by Walker): In this otherwise ho-hum opinion in which the primary appellate issue concerns the defendant's claim that he has been deprived of the right to appeal because much of the evidence presented against him at trial was destroyed during the September 11th attacks on the World Trade Center, the Circuit makes a very interesting statement about the limit of the Almendarez-Torres exception to the Apprendi-Blakely rule. The opinion is worth a quick perusal for that statement alone.

The essential facts are simple. Weisser lived in San Francisco and engaged in AOL chat sessions with someone claiming to be an 11-year-old boy in New York. The "boy" was of course an undercover agent fishing for customers (er, defendants). Much sexual conversation ensued, along with a planned liaison in a Big Apple hotel. To his unhappy surprise, Weisser found not a boy but a squad of federal agents in his hotel room.

Weisser went to trial and was convicted. At the pre-Blakely sentencing, the district court upwardly departed "horizontally", i.e., in the Criminal History Category, from III to VI. Finally, during the pendancy of Weisser's appeal, the 9/11 attacks occurred, which destroyed much of the Government's evidence against him at trial.

The primary claim on appeal was whether Weisser was deprived of his right to appeal by the destruction of the trial evidence. The Circuit ruled against him, concluding that (1) the appellant must demonstrate prejudice "before relief based on missing documents in the record can be granted," op. at 7; (2) prejudice "exists if the record is so deficient that it is impossible for the appellate court to determine if the district court has committed reversible error," op. at 9-10; and (3) Weisser had not adequately shown how his appeal was prejudiced by the destruction of the trial evidence.

Weisser also appealed various aspects of the sentence imposed, including the district court's three-Category horizontal departure from Category III to Category VI. In the course of evaluating the propriety of this departure, the Court offhandedly (and unnecessarily, given the Booker remedial ruling) states: "The district court's horizontal departure violated the Sixth Amendment because it was based on facts not found by the jury." Op. at 28 (emphasis added). This startling pronouncement -- after all, aren't facts underlying criminal history departures covered by the Almendarez-Torres exception to the Apprendi-Blakely rule? -- turns out to be somewhat less momentous than first appears. This is because the the factual bases for the horizontal departure in this case involved not the "fact" of a prior conviction or even the "nature" of a prior conviction, but three other kinds of facts concerning the defendant's criminal history. As a foonote explains, "the district court relied on (1) Weisser's repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his 'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy'" in departing to Category VI. Op. at 28, fn.10.

The 2nd and 3rd bases for the departure seem clearly outside the Almendarez-Torres exception. But the 1st basis seems quite close to the kind of facts that courts have routinely held to fall comfortably within that exception. To start, why should a defendant's "repeated parole violations" -- which of course are easily proved by court records -- be treated any differently than a defendant's "repeated convictions"? If the former cannot be relied upon to increase a statutory maximum unless admitted by the defendant or found by a jury (as this opinion states), neither should the latter. Even read more narrowly, moreover, the 1st basis is quite similar to the basis triggering the two criminal history points required under Section 4A1.1(d) of the Guidelines when the instant offense is committed while the defendant is on probation or parole for a prior offense. Finally, the 1st basis is also somewhat akin to a "fact" required for the application of the Armed Career Criminal Act -- the existence of three prior drug or violent felonies "committed on occasions different from one another". See 18 U.S.C. § 924(e). Of course, the Second Circuit previously held that such a fact falls squarely within the Almendarez-Torres exception. But if a court violates the Sixth Amendment when it increases a defendant's statutory maximum based on his repeated parole violations, why doesn't it also violate the Sixth Amendment when it does the same based on the fact that his 3 prior qualifying felonies were committed on different occasions?

In any event, if Shepard didn't hammer the point home clearly enough, Weisser should: Counsel should raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum. At worst, even if the Almendarez-Torres exception is not yet on its last legs, its scope is certainly an open question.

Sunday, June 19, 2005

Batson’s Back, Baby!

Walker v. Girdrich, Docket No. 03-2645 (June 8, 2005) (Jacobs, Calabresi (C.J.J.) and Rakoff (D.J.)), ( Jacobs).

Presaging the United States Supreme Court’s Miller-El decision by just five days, the Court of Appeals here rejected a state prosecutor’s reason for striking single black prospective juror, and granted the petitioner’s writ.


Tried in the New York Supreme Court, Kings County, on drug charges, Robert Walker lodged a
Batson objection after the prosecutor used twelve of thirteen peremptory challenges to remove African-Americans from the venire, alleging that the strikes were the product of purposeful discrimination. The trial judge concluded that there was no ‘pattern’ of discrimination, but invited the prosecutor to give her reason for striking the juror in question, Bernard Jones, who had not yet been discharged. The prosecutor indicated, inter alia, that Mr. Jones “gave one word answers” and was concerned about missing work, but noted that her “main ...problem[s]” with him were related to his race: “[T]his is an individual who was a Black man with no kids and no family.” She went out to point out that he had “ no experience whatsoever with police officers,” and that she perceived him as having “an attitude ... against a prosecutor.”

The trial judge accepted these comments as race-neutral, held that there was no “pattern” of purposeful discrimination, and denied the Batson objection. Interestingly, Mr. Jones, who apparently had been struck at a time when he would have been seated on the jury itself, ended up as an alternate, on consent, although he did not deliberate.

On appeal, Mr. Walker’s Batson claim got the typical perfunctory treatment from the New York State courts: a brief mention that it was “without merit” by the Appellate Division, and a denial of leave,without comment, by the New York Court of Appeals. On habeas review, Judge Weinstein denied the writ but granted a certificate of appealability.

The Court’s Holding

The Court of Appeals reversed and granted a conditional writ. After the usual preliminaries, including a concise recitation of the current law surrounding Batson claims, the Court had no trouble concluding that the A.D.A.’s striking of Mr. Jones “was not race neutral.” After all, she openly stated that one of her “main” concerns was Mr. Jones’ race, apparently aggravated by the fact that he had no family. The Court also astutely pointed out that some of her other reasons, such as Mr. Jones’ “one word answers” and his “attitude,” tended to “reinforce” rather than “dispel a race-based motive.” Lastly, the Court noted that the juror’s lack of experience with police would have favored keeping him on the panel, not removing him. Finding that the district court’s denial of the writ involved an unreasonable application of clearly established federal law, the Court reversed the denial of the writ.

The Real Significance

The Walker decision is significant for reasons other than its fairly obvious holding. The record in this case was notable for its lack of clarity. No record had been made of the composition of the jury pool up to the point of the Batson objection, which occurred during the fourth round of jury selection. Consequently, the Court was unable to determine whether the defendant might have been able to satisfy his preliminary burden of making out a prima facie case of purposeful discrimination. It got around this problem by noting that the striking of even a single veniremember for racial reasons violates Batson, and that the objection to the striking of Mr. Jones was sufficient.

But this case serves as a reminder of the importance of making an adequate record when registering aBatson objection, since it will be the rare case indeed where, as here, the prosecutor is stupid enough to give an overtly racial reason. Thus, the Court warns: “It is helpful in a Batson case to have a record as to the composition of the venire and the race and ethnicity of the jurors struck on either side. Moreover, the allocation of the burden for creating a record as to the prima facie case is unsettled; so it would be prudent for counsel to preserve a full opportunity for appeal by making a record for appeal.”

This case is significant for a second reason. Mr. Jones, the juror at issue, ended up on the jury, albeit as an alternate, but the Court still found a Batson violation.

Friday, June 17, 2005

Elderly Defendant Not Permitted to Withdraw Plea Despite Poor Advice from Attorney about Guidelines Exposure

United States v. Anthony Guidice, Docket No. 04-3729-cr (2d Cir. June 16, 2005) (Feinberg, Sack, Katzmann) (Op. by Feinberg): The Circuit sets a very high hurdle in this case for defendants wishing to withdraw their guilty pleas based on grossly erroneous advice from counsel about their sentencing exposure. Although the Court does not create any per se rules in this decision, it relies heavily on the fact that the defendant could not point to any "weaknesses" in the Government's case against him to conclude that, despite counsel's admittedly awful advice, there is no reasonably probability that defendant would have proceeded to trial if he had been given correct information about his sentencing exposure (despite his claims to the contrary). Unfortunately, many defendants will be unable to make such a showing.

The essential facts are simple. Guidice was charged in a 4-count indictment with extortion-related offenses. Shortly before trial, he pleaded guilty to a single count of conspiracy to commit extortion, pursuant to a plea agreement. Among other things, Guidice and the Government agreed that he faced a Guidelines range of 37 to 46 months. (This is of course a pre-Booker case; therefore, this was a "mandatory" range and not merely an advisory one).

Unfortunately, the Probation Office in preparing the PSR determined that Guidice qualified as a career offender under § 4B1.1, thus elevating his sentencing range to 151 to 188 months. When he learned of this, Guidice moved to withdraw his plea, claiming ineffective assistance of counsel. Guidice explained to the court that "I'm no angel, but twelve or more years [in prison] is a death sentence for me," and that, as a result, he would've taken his chances and gone to trial had he been told of the correct range by counsel. (Although the opinion does not disclose Guidice's precise age, he is apparently quite elderly and infirm -- so much so that the district court (Judge Cote, no less) departed downward on the basis of his age and poor health to an eventual sentence of 72 months.). The district court denied the motion, concluding that Guidice had not met the prejudice component of the Strickland because, among other things, he could not point to "any weaknesses in the government's case that would have influenced his decision to proceed to trial." Op. at 7.

The Circuit affirmed, largely adopting the district court's reasoning: Guidice could not meet his burden on the prejudice prong of Strickland because he did not demonstrate a "reasonable probability" that, but for the bad advice, he would have gone to trial. The Court dismissed Guidice's statements -- that given his age, he would've gone to trial if his sentencing exposure, even on a guilty plea, was 151 to 188 months -- as "self-serving". The Court also rejected Guidice's contention that the district court imposed an "unduly burdensome" task upon him -- i.e., the burden of showing weaknesses in the Government's case in order to demonstrate that he would have gone to trial but for his attorney's bad advice. The Circuit explained that the district court merely "suggested that evidence of weakness in the government's case might have been one means of proving that Guidice would have gone to trial had he known his true sentencing exposure." Op. at 17.

Wednesday, June 15, 2005

Criminal Forfeiture Not Governed by Requirements of Apprendi / Blakely Line of Cases

United States v. Fruchter, Docket No. 02-1422(L) (2d Cir. June 14, 2005) (Walker, Parker, and Wesley) (Op. by Walker): The Circuit concludes in this opinion that in determining the amount subject to forfeiture under the RICO criminal forfeiture statute, 18 U.S.C. § 1963, a judge need only rely upon the preponderance of the evidence standard. The Court specifically rejected appellant's argument that under Apprendi, Blakely, and Booker, the district court was required to determine the forfeiture amount under the beyond-a-reasonable-doubt standard. This was so because criminal forfeiture "is not a determinative scheme" (emphasis in original) -- like the Washington state regime invalidated in Blakely or the Sentencing Guidelines invalidated in Booker -- wherein a guilty verdict (or a guilty plea) "authorizes the imposition of a sentence within a specified [or determinate] range." Op. at 14. Rather, "criminal forfeiture is not subject to any statutory maximum," op. at 15, since the statute provides simply that the defendant shall forfeit "any property . . . derived from . . . any proceeds which the person obtained . . . from racketeering activity." Q.E.D.: "A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum if there is no statutory maximum." Op. at 15.

Essentially, the reasoning is that because a guilty verdict (or a guilty plea) does not trigger a "previously specified range" in the forfeiture amount under § 1963, the Apprendi line of cases -- which "prohibit a judicial increase in punishment beyond a previously specified range" as authorized by a guilty verdict or plea -- is not applicable. See Op. at 15 ("Criminal forfeiture is, simply put, a different animal from determinate sentencing."). Rather, once the jury convicted Fruchter of RICO violations, the "maximum" forfeiture amount he became subject to was simply, as the statute provides, whatever proceeds the judge determined to be derived from his racketeering activities. The $20.7 million forfeiture order, in other words, was indeed "authorized" by the guilty verdict on the RICO counts. The Apprendi line of cases was therefore not implicated, and the preponderance standard is sufficient and the relevant findings need be made only by the judge. Indeed, the Court went on to uphold the district court's forfeiture order even though it included sums derived from counts on which the jury acquitted the defendant. Op. at 16-17.

A question naturally arises as to whether this case applies to restitution orders as well. Criminal forfeiture is not nearly as frequently encountered as restitution, and the governing statutes are of course distinct. One nonetheless wonders whether Fruchter means that restitution amounts also need not be found by the jury or on a beyond-a-reasonable-doubt standard -- a question that technically remains open in this Circuit . . . .

Monday, June 13, 2005

Drug Use Resulting in Revocation Can Be Premised, In Part, on Results Falling Below Cutoffs Established In Testing Companies' Contracts

United States v. Klimek, Docket No. 04-2459 (2d Cir. June 8, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): In this case, briefed and argued by our own David Lewis, the Circuit ruled that, in the context of a supervised release revocation proceeding, a district court was not "per se precluded" from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Adminstrative Officer of the United States Courts ("AO").

The facts are straigtforward. Mr. Klimek, after serving a prison sentence but while still on supervised release, used drugs. Initially, he admitted using LSD, pled guilty to violating the terms of his supervised release for that reason, and was sentenced to a term of home confinement. But even before home confinement could be set up, he tested positive again, this time for cocaine use. He denied using cocaine, so his urine sample was sent to an outside testing company for confirmation. The test, which used a gas chromatography/mass spectrometry technique (I couldn't describe it if I tried, but GC/MS is specifically approved in 18 U.S.C. section 3583(d)), detected cocaine metabolite at the level of 118 nanograms per milliliter. The contract between the testing company and the AO, however, required a cutoff of 150 nanograms per millileter in order to confirm a positive test. Mr. Klimek argued that a sub-cutoff test result precluded a finding of drug use.

The district court held a hearing at which a testing company representative testified. She testified that even a 118 nanograms per millileter finding could only be explained by cocaine use. She testified further that Mr. Klimek's urine had been diluted by his drinking copious amounts of water before submitting the sample. Once "normalized" to account for dilution, cocaine metabolite would have been present at over 400 nanograms per millileter. Based on this testimony and Mr. Klimek's admitted history of drug use, the district court concluded that he had, again, violated the terms of his supervised release.

On appeal, David Lewis argued that the district court was precluded from finding that Mr. Klimek ingested cocaine, given that the confirmatory test fell below the cutoff level specified in the contract between the AO and the testing company. His position was premised on two statutes, 18 U.S.C. sections 3583(d) and 3608, which govern drug testing for defendants who face imprisonment and deny the accuracy of initial tests (section 3583(d)), and require the Director of the AO to establish drug testing programs for Federal offenders on post-conviction release which include "standards" and "guidelines" deemed necessary to ensure accurate test results (section 3608).

The Panel, however, rejected defendant's argument. The Panel held that the district court's ruling was supported in this case based on the totality of the evidence -- specifically (1) the defendant's long and uncontroverted history of supervised release violations (why it is kosher to rely on this type of 404(b) propensity evidence is left unexplained), and (2) the fact that the confirmation test, once normalized for dilution, would have reflected the presence of cocaine metabolite far in excess of the cutoff amount.

The Panel declined to decide whether supervised release could be revoked solely on the basis of a confirmatory test result that falls below the cutoff level, so that argument should still be preserved.

Thursday, June 09, 2005

New York Court of Appeals Upholds Persistent Felony Offender Law Despite Ring, Blakely, and Booker

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit's narrow decision upholding New York's persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss the New York Court of Appeals's decision, rendered today, upholding that law on direct review. (Our prediction of a contrary result was, alas, misguided). In Rivera, that Court ruled that N.Y. Penal Law § 70.10 did not violate either Apprendi, Ring, Blakely, or Booker. Of course, it did so only by interpreting the statue in a way that (1) flatly contradicts the plain language of the law itself, and (2) flouts years of case law and accepted practice in the New York courts.

Simply put, the Court upholds the statute by reading it to say that the two prior felony convictions "are both necessary and sufficient conditions for imposition of the authorized [enhanced] sentence for recidivism." Op. at 9; see op. at 6 ("[T]he prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender.") (emphasis in original); op. at 14 ("[N]o additional fact-finding beyond the fact of two prior felony convictions is required under Penal Law § 70.10 or under Criminal Procedure Law 400.20.") (emphasis in original). And because a judge is permitted to find these "facts" under Almendarez-Torres, there is no Sixth Amendment problem with § 70.10. Q.E.D.

This is an incredibly strained reading of New York law. As Chief Judge Kaye points out in her dissent, "under the statute a defendant's classification as a persistent felon does not in and of itself subject the offender to enhanced punishment. . . . Rather, an enhanced sentence is available only for those who additionally are found to be of such history and character, and to have committed their criminal conduct under such circumstances, that extended incarceration and lifetime supervision will best serve the public interest." Dissent at 4. Indeed, under § 400.20, a court can impose the enhanced sentence only "based on fact findings made after a hearing at which the People have the burden of proof by a preponderance of the evidence." Id. at 6. Where an enhanced sentence was imposed without such additional fact findings, Judge Kaye notes, the Appellate Division "has repeatedly vacated persistent felony offender sentences." Id. at 7. Finally, Judge Kaye points out that § 70.10 -- until today -- has always stood "in stark contrast" with § 70.08, which "requires that all three-time violent felons be sentenced to an indeterminate life term on the basis of the prior convictions alone." Id. at 4-5.

(Kudos to Judge Kaye for one final, self-serving reason: She -- as our blog entry on Brown v. Greiner also points out -- notes that while § 70.10 (even correctly interpreted) was likely (or at least plausibly) constitutional in light of Apprendi alone, it was no longer valid in light of Ring. See dissent at 3 ("Thus, inasmuch as Walton was not overruled until Ring, the decision in Rosen neither was contrary to, nor involved an unreasonable application of, Apprendi at the time it was decided." (citing Brown v. Greiner)).

Wednesday, June 08, 2005

A Very Narrow Decision on New York's Persistent Felony Offender Law

Brown v. Greiner, Docket No. 03-2242(L) (2d Cir. June 3, 2005) (Walker, Leval, and Katzmann) (Op. by Leval): Too much has been made of this exceedingly narrow decision in the press (see, e.g., yesterday’s front page article in the New York Law Journal) and in the blogsphere (see, e.g., Professor Berman’s description of it as a “major habeas ruling”). Contrary to some accounts, this decision did not rule that New York’s persistent felony offender law comports with the Sixth Amendment as construed in the line of cases beginning with Apprendi (2000), running through Ring (2002) and Blakely (2004), and concluding (at least for now) with Booker (2005). Rather, this case holds merely that the New York courts’ determinations in 2000 and 2001 – when only Apprendi had been decided – that this law did not violate the Sixth Amendment was not an “unreasonable” reading of Apprendi, and thus that the writ should be denied under the AEDPA. This case says nothing about whether the state court decisions are correct in light of the post-Apprendi cases listed above. Indeed, it seems clear that the New York statute violates the rule of both Ring (2002) and Blakely (2004), even if it is not “unreasonable” to conclude otherwise vis-à-vis solely Apprendi.

The essentials are as follows. The Circuit denied the habeas writ to three § 2254 petitioners sentenced to extended prison terms under the New York persistent felony offender statute, N.Y. Penal Law § 70.10. The defendants each argued in state court that their extended sentences violated the Sixth Amendment as construed in Apprendi. The New York courts rejected this argument in 2000 and 2001 – after Apprendi but well before either Ring, Blakely, or Booker. In an opinion by Judge Leval, the Circuit concluded that the state courts’ determination that the persistent felon statute did not violate the Sixth Amendment was not an “unreasonable” interpretation of Apprendi, the only “clearly established” federal law “as determined by the Supreme Court” at the time of the state court decisions.

Section 70.10 requires two findings by the judge before she may impose the enhanced sentence: [1] the defendant must have been “previously convicted of two or more felonies,” and [2] the judge must be “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.” New York Penal Law § 70.10(2). The defendants’ core challenge was that finding [2] violates the Apprendi rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). (Finding [1], of course, fits squarely in the Almendarez-Torres exception to the rule.). The state courts rejected this argument, and the defendants’ cases became final in 2000 and 2001.

The Circuit’s review of these decisions via the § 2254 petitions was necessarily deferential, restricted by AEPDA to upholding the decisions unless they were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d). Crucially, the reasonableness vel non of the state court decisions was to be considered only in light of the Supreme Court cases in existence at the time the state courts issued their decisions. And as noted, only Apprendi had been decided at this time.

The Circuit accepted the State’s argument that “the New York courts did not apply Apprendi unreasonably in concluding that the sentencing judge may make the determinations upon which persistent felony defender sentencing turns.” (p. 14). This was so because the “amorphous” finding that a persistent felon sentence is required “to serve the public interest” differed from the kind of fact-finding at issue in Apprendi.

As Judge Gleeson pointed out in granting habeas to one of the petitioners (only to be overturned by the Circuit), however, § 70.10 is functionally “identical” to the capital sentencing scheme struck down in Ring v. Arizona. Brown v. Greiner, 258 F. Supp.2d 68, 92 (E.D.N.Y. 2003). In the Arizona scheme ruled unconstitutional by Ring, a sentence of death – though theoretically authorized by a jury verdict convicting a defendant of first-degree murder -- was unavailable without a judge finding at least one aggregating circumstance and the absence of sufficiently substantial mitigating circumstances. See Ring v. Arizona, 536 U.S. 584, 592 (2002). Similarly, a Class A-1 felony-length sentence is unavailable for defendants under § 70.10 without finding [2], also made by the judge. For Judge Gleeson, this identity was diagnostic of the unreasonableness of the state court decision upholding the extended sentence under § 70.10: “[B]oth statutes require judicial findings, after a hearing, of at least one aggravating factor before the enhanced sentence is available, [and] both violate Apprendi.” 258 F. Supp.2d at 92.

This seems true enough – and the Circuit did not necessarily disagree with Judge Gleeson’s point. Rather, the Circuit side-stepped it by emphasizing (in a critical footnote) that under AEDPA and in light of the timing of the state court decisions challenged in the § 2254 petitions, “[t]he universe of ‘clearly established Federal law, as determined by the Supreme Court of the United States’” contains only Apprendi and the cases preceding it. Accordingly, Ring (as well as Blakely and Booker) was irrelevant to the determination at hand. The Circuit decided that it was reasonable for the New York court to conclude that the “vague, amorphous assessment” involved in finding [2] was “something quite different from the precise finding of a specific fact” in Apprendi. (p. 19) The idea is that finding [1] (the determination of prior convictions) sets the Class A-1 felony ceiling on the sentence, and finding [2] involves a court’s “traditional role” in deciding what sentence to apply below that maximum. (p. 20)

The Court’s reasoning is curious. Why is the vagueness of a factual finding sufficient to exclude it from the Apprendi rule? After all, a judge is still required to make factual findings, after a hearing, before she can impose an enhanced sentence under § 70.10. One is left wanting a more persuasive argument, particularly in light of Judge Gleeson’s point that Ring ultimately foreclosed the state courts’ reasoning. A better argument would have been that the Apprendi majority had flatly rejected a Ring-type argument in Apprendi itself. Recall that prior to Apprendi, Walton v. Arizona had upheld the capital sentencing scheme later overturned in Ring, and that Apprendi explicitly left Walton untouched. Over Justice O’Connor’s protests, Apprendi, 530 U.S. at 538 (O’Connor, J., dissenting), the Apprendi majority distinguished “state capital sentencing schemes requiring judges . . . to find specific aggravating factors before imposing a sentence of death.” Id. at 496 (opinion of the Court). Given the similarity between the Arizona scheme and § 70.10, Apprendi’s refusal to overrule Walton is compelling evidence that the New York courts’ determination that § 70.10 did not violate the Sixth Amendment was not an “unreasonable” reading of Apprendi.

Once the universe of review expands to encompass Ring, of course, the New York courts’ application of Apprendi becomes much less reasonable. Indeed, § 70.10 seems clearly to violate the rule of Ring. Moreover, Judge Leval’s attempt to distinguish the New York law on the basis of the “amorphous[ness]” of the finding required for an enhanced sentence founders in light of Blakely, which ruled that a state judge’s equally “amorphous” finding that the defendant had acted “with deliberate cruelty” in committing the offense cannot increase the statutory maximum. Accordingly, this decision is limited to cases that became final before any of the post-Apprendi cases had been decided.

A final note: The New York Court of Appeals has a case pending on direct appeal that raises the identical issue of whether § 70.10 violates the Sixth Amendment. In deciding this question on direct appeal, that Court must of course apply all the post-Apprendi cases and need not defer to any prior decisions (as AEDPA required in Brown v. Greiner). And according to the Court’s public summary of the issue, the defendants wisely base their arguments on both Ring and Blakely. One hopes the Court of Appeals will abide by these decisions in striking down § 70.10 as a violation of the Sixth Amendment.

(By James Darrow, a rising 3-L at Stanford Law School, and Yuanchung Lee).