Monday, July 25, 2005

On Vacation . . .

This blog will be on hiatus until August 11th or thereabouts. Please check back again at that time.

Saturday, July 23, 2005

Thank Goodness for Booker

United States v. Tammy Brady, Docket No. 04-0729-cr (2d Cir. July 22, 2005) (Cardamone, Cabranes, Sotomayor) (Op. by Cardamone): This case is a good illustration of how the pre-Booker mandatory Guidelines regime often produced irrational and unnecessarily harsh results that fail to comport with our basic sense of justice. At a pre-Booker sentencing, Judge Gleeson -- no softie -- granted a relatively small downward departure from a range of 12 to 18 months and imposed a sentence of 5 years' probation with 3 months' home detention. The departure was made under U.S.S.G. § 5H1.3 -- as recommended by the EDNY Probation Office (also no bargain, as defense lawyers are well aware) -- to account for (1) the horrific abuse that Ms. Brady suffered throughout her childhood and adolescence, which (2) created a mental disease or condition that (3) in turn contributed to her commission of the instant offense (a conspiracy to steal money from her employer, Citibank). See generally United States v. Rivera, 192 F.3d 81 (2d Cir. 1999) (setting forth 3-part test). On the Government's appeal, the Circuit found that sufficient facts supported the district court's findings on (1) and (2), but concluded that the evidence was insufficient to support (3) -- the often-elusive causal connection prong -- and remanded for further fact-finding on this point.

On remand, of course, Judge Gleeson will be freed from the departure standards of the mandatory Guidelines regime; in the post-Booker world, he can simply impose the same sentence not as a downward departure but as a "non-Guidelines sentence" (in Crosby parlance) under 18 U.S.C. § 3553(a) (and especially 3553(a)(1), to account for the defendant's tragic history). And given the Circuit's relatively deferential reading of Booker's reasonableness standard of review, as well as the relevant facts, it is hard to imagine that such a sentence would be deemed unreasonable on a subsequent appeal (assuming the Government would even bother with one).

Indeed, the Court specifically cautions in concluding that the district court's error in granting the departure "would not necessarily render Brady's sentence unreasonable" under the Booker scheme. Op. at 19. As it explains, "Our conclusion [here] is based on the fact that we are reviewing a mandatory Guidelines sentence, and intentionally leaves open the possibility that a different analysis may be warranted upon review of a non-Guidelines sentence." Op. at 19-20; see id. at 13 ("[W]e note that it is not the case -- and could not be in light of Booker, see 125 S. Ct. at 794 (Scalia, J., dissenting -- that 'every sentence outside an applicable guideline' is per se unreasonable, Crosby, 397 F.3d at 115.").

Finally, and in any event, it has always puzzled this reader why a causal link between the defendant's horrific past experiences and her commission of the crime -- always difficult to demonstrate -- must be present to justify a lower sentence. Why isn't this simply classic mitigation evidence? In the death penalty context, for instance, a frequently proffered mitigator at the penalty phase is the physical and other abuse the defendant suffered as a child. No causal link to the offense of conviction is required; the idea being that maybe this person deserves a break because he's already suffered so much, or because the past experiences have somehow made him who he is now, without requiring a tight causal connection between those experiences and the crime of conviction. Similarly, a downward departures can be given on the basis of the defendant's past charitable works or other instances of good behavior. The animating idea is not that this past experience somehow makes the defendant less culpable in committing the offense of conviction, but that maybe this defendant deserves a break in his punishment because of the good that he previously did.

This case of course does not get rid of the causation requirement. But in overturning the district court's departure decision even in light of such compelling mitigating evidence, perhaps the Court has inadvertently done one better: It may have consigned the § 5H1.3 departure to the dustbin of history altogether. After this case, and in light of Booker, what district judge in his or her right mind would bother with justifying such a sentence by resort to the traditional downward departure mode of analysis, which is both difficult to satisfy and easily overturned on appeal, when the same outcome could be justified as simply a "non-Guidelines" sentence under Section 3553(a)? The latter approach is far simpler, more appeal-proof, and, yes, more reflective of our basic intuitions about fairness and justice.

Thursday, July 21, 2005

Obstructive Conduct during State Investigation Triggers Obstruction Enhancement upon Federal Conviction for Different but Related Offense

United States v. Marshall Ayers, Docket No. 04-0103 (2d Cir. July 21, 2005) (Sack, Raggi, Hall) (per curiam): Some of us cynically speak of the "Rule of Severity" occasionally applied in criminal cases, especially when ugly facts are involved. The Rule is simple: Where a statute or rule can reasonably be interpreted in one of two ways, the Court will adopt the interpretation that results in greater punishment for the well-deserving defendant. Unlike its much better known cousin, the Rule of Lenity, the Rule of Severity does not of course officially exist. Yet its force is well-known to those who practice in this field.

The issue in this case is whether the defendant's effort to obstruct the state's investigation of his crime, which preceded the federal investigation and prosecution of a different but related crime, triggers the obstruction enhancement of U.S.S.G. § 3C1.1 for purposes of the federal sentence. The governing language from Section 3C1.1 provides that the 2-level enhancement is applicable only where, inter alia, "the defendant willfully obstructed or impeded . . . the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction . . . ." (emphasis added). Despite this language -- and especially the focus on "the instant" case -- the Court affirms the application of the enhancement for obstructive conduct that occurred during a state investigation of a state case that long preceded the federal prosecution for a different offense.

The essential facts are simple. Ayers allegedly shot & killed someone in June 2001. During the state's investigation of the murder, Ayers told one of his friends to destroy the gun allegedly used in the shooting. The friend did as Ayers asked.

Ayers was eventually indicted and prosecuted in state court for murder and criminal possession of a weapon in the 2nd degree. A jury acquitted him of both counts. It found him guilty only of a misdemeanor possession charge.

Thereafter, the feds got involved and prosecuted Ayers under § 922(g)(1), as he had a prior felony conviction. Ayers pleaded guilty in federal court. He did nothing obstructive during the federal proceedings. Nonetheless, at sentencing, the district judge imposed the 2-level obstruction enhancement based on Ayers's effort to destroy the gun during the state's investigation, pointing out the obvious fact that Ayers willfully and knowingly attempted to destroy material evidence.

The Circuit affirmed, noting that Ayers's "conduct is clearly obstructive [since] the destroyed evidence was material to an official investigation or judicial proceeding involving the offense of conviction, i.e., possession of a firearm by a convicted felon." Op. at 4. As support, it cited SecondCircuit precedent upholding application of the enhancement for obstructive conduct during civil SEC proceedings that preceded the criminal prosecution, as well as cases from other courts allowing the enhancement for obstructive conduct during a state investigation that eventually led to a federal prosecution. Op. at 5-6.

The opinion makes no effort, however, to confront the actual language of the obstruction enhancement, and specifically the word "instant". Even granting the Court's point that because the state's investigation encompassed both murder and criminal possession of a weapon in the 2nd degree, it thus encompassed the § 922(g)(1) "offense of conviction" (even though it clearly does not -- CPW-2d is possession of a weapon with intent to use it against another, while felon-in-possession simply prohibits the possession of a gun by a felon; it's apples and oranges), the obstruction enhancement can be imposed only if the obstructive act occurred "during . . . the instant offense of conviction." The "instant" case, as used in the law, refers to this case -- the case currently before the court. And in this context, the "instant" case is clearly the federal § 922(g)(1) prosecution. Ayers certainly did nothing obstructive in this case.

At best, there is ambiguity in the Guideline. The Rule of Lenity should therefore come into play and award the tie to the defendant. Unfortunately, the ugly facts of Ayers's misbehavior triggered the application of the contrary, unacknowledged Rule mentioned earlier.

That defendants like Ayers who commit obstructive acts deserve greater punishment, as the Court points out, cannot be disputed. Yet it is also irrelevant to the precise question before the Court in the instant appeal (there, I said it).

An Interesting Decision Concerning Supervised Release

United States v. Germaine Robinson, Docket No. 04-6664 (2d Cir. July 20, 2005) (Jacobs, Pooler, and Hurd, D.J.) (Op. by Jacobs): This opinion contains some interesting discussion about several issues arising in the context of revocation of supervised release. First, it discusses the type of notice that a defendant (a "supervised releas-ee"?) must be provided with before revocation. Second, it quickly rejects a Booker challenge to the revocation scheme, but then adds some curious dicta that has piqued the interest of the blogosphere (see, e.g., Professor Berman's site). Finally, it discusses the difference between simple possession of drugs and possession of drugs with intent to distribute (or simply distribution) as it affects the advisory range upon revocation.

The essential facts are simple. Robinson was convicted in 1999 of possession of cocaine base with intent to distribute. His Guidelines range was 33 to 41 months, and he was sentenced to 33 months. He was also sentenced to 5 years' supervised release.

In 2004, Robinson was charged by the Probation Office with violating the terms and conditions of his supervised release. Specifically, Probation charged him with violating supervised release by committing a new crime -- i.e., "the crime of Possession of Cocaine Base." The petition did not specifically indicate, however, the particular statute -- i.e., which statutory section of either the U.S. Code or the N.Y. Penal Law -- that Robinson's conduct violated.

The violation petition noted that Robinson was in the front passenger seat of a car in which the police found several baggies of cocaine, and that upon his arrest by state authorities, Robinson admitted to the police that "he had been purchasing drugs on a weekly basis." Op. at 4.

After a hearing, the judge ruled that the Government had proved by a preponderance of the evidence that Robinson violated supervised release by possessing cocaine base, in violation of either 21 U.S.C. § 844(a) or N.Y. Penal L. § 220.03. It treated this conduct as a "Grade A" violation (rather than a Grade B one, as defendant urged) carrying a range of 12 to 18 months. (A Grade B violation would have carried only a 4 to 10 months range). It then imposed a sentence of 15 months.

Notice: Robinson complained on appeal that his Due Process right (as well his right under Fed. R. Crim. P. 32.1(b)(2)(A)) to have written notice of the alleged violation was violated because the petition failed to cite, line-and-verse, the particular statute he allegedly violated. Without such notice, Robinson argued, a defendant would not know "the elements of the crime against which he must defend."

The Court rejected this argument, concluding that the phrase used in the violation petition -- "possession of cocaine base" -- "gave adequate notice of the elements of the offense charged." Op. at 6-7. Although the Court acknowledged (and perhaps even approved of) the Ninth Circuit rule that "the Government should generally . . . provide a defendant with notice of the specific statute violated," it declined to adopt such a requirement in this particular case. This was so because "the petition [here] identified the offense ('crime of Possession of Cocaine Base') in terms sufficient to reflect its elements," and thus that any error in failing to provide the precise statutory section "was harmless." Op. at 7.

Booker Challenge: Robinson also argued that a jury under the reasonable doubt standard, rather than a judge under the preponderance standard, should have determined whether he violated supervised release. This was allegedly required because (1) the top of the original Guidelines range for the underlying offense was 41 months; (2) he originally received a sentence of 33 months; and (3) imposition of the 15-month sentence upon revocation resulted in a total sentence exceeding the top of the original Guidelines range. Op. at 7-8. He contended that "under Booker no [revocation] sentence . . . could exceed eight months." Op. at 8.

Judge Jacobs quickly rejected this argument, citing United States v. Fleming, 397 F.3d 95 (2d Cir. 2005), as dispositive on this point. Fleming, decided the same day as Crosby, ruled that supervised release "remains unaffected by Booker." Op. at 8.

Nonetheless, Judge Jacobs went on to acknowledge in 2 pages of tantalizing dicta that "the supervised release scheme is in some tension with the rationale of Blakely and Booker." Op. at 8. Among other things, the current law on supervised release allows the imposition of a sentence upon revocation that, when added to the original sentence, results in a total sentence that exceeds the true statutory maximum (literally, the maximum set forth in the statute) for the underlying offense. See, e.g., United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001). But if such a sentence could be imposed based solely on judge-made findings under a preponderance standard, the rule of Apprendi comes into play: Any fact that increases the statutory maximum must be found by a jury beyond a reasonable doubt.

Robinson's sentence is actually not a good example, since no true statutory maximum is implicated given Booker's remedy of treating the Guidelines range as merely advisory. Given Breyer's remedial legerdemain, the fact that the total sentence of 48 months (33 for the underlying offense plus 15 upon revocation) exceeds the top of the original range (41 months) encounters no Apprendi difficulty. But a different example could make the desired point.

Assume that a defendant is convicted of felon-in-possession of a firearm, which carries a 10-year statutory maximum. Assume further that he is sentenced to 9 years' imprisonment, along with 3 years of supervised release. Assume finally that following his release from prison, the judge finds on a preponderance standard that he violated supervised release by possessing drugs, and then sentences him to 2 years in prison upon revocation.

The total sentence of 11 years (9 for the underlying offense and 2 upon revocation) exceeds the 10-year statutory maximum. In such a situation, the Apprendi rule appears implicated: Surely the judge cannot, on his own findings on a preponderance standard, impose a sentence greater than the statutory maximum.

But, alas, that case is not this one. Nonetheless, Judge Jacobs's opinion is potent ammunition for defense counsel handling that next case.

Simple Possession vs. Possession with Intent to Distribute: The final issue concerns the applicable "Grade" when the violation conduct is simple possession of drugs, rather than possession with intent to distribute (or distribution of any kind). Though Robinson was only charged with simple possession, and though the judge only found that he possessed drugs, the judge sentenced him as if he had committed a "Grade A" violation (carrying a range of 12 to 18 months). This was error. Simple possession is only a Grade B violation, with a 4-10 months range.

This error -- which this reader has previously encountered -- likely arose from Chapter 7's poor drafting. A Grade A violation is described there as "a controlled substance offense . . . punishable by a term of imprisonment exceeding one year." One may think that, based on that definition, Robinson's offense qualified: After all, under § 844(a), even simple possession of crack, following a prior drug conviction, carries a maximum of greater than one year.

However, the Application Notes specifically point to § 4B1.2 for the definition of "controlled substance offense," and that Section defines such offenses to include only those that involve distribution. Therefore, simple possession is not a Grade A violation.

The Heck with the Ninth Circuit: Second Circuit Rules that Crime of Attempted Reentry Following Deportation Is Not a Specific Intent Offense

United States v. Daniel Rodriguez, Docket No. 04-4157-cr (2d Cir. July 20, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): Ladies and gentlemen, we have a circuit split. In this decision, the Circuit rules that the crime of attempted reentry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), is not a specific intent offense, and thus that the Government need not charge or prove that the defendant knew that his conduct was unlawful, knew that he needed the permission of the Attorney General to reenter, or knew that he did not have such permission when he intentionally attempted to reenter. Rather, the Government need only prove that the defendant intentionally attempted to reenter (as opposed to, e.g., being transported into the good ol' U.S.A. while in a comatose state against his will). This reading of the attempted reentry offense -- in accordance with that already accepted by the First, Fifth, and Eleventh Circuits -- conflicts with that adopted by the Ninth Circuit in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000).

This outcome should come as no surprise to anyone familiar with the Circuit's law concerning the reentry offense generally. In numerous cases arising in slightly different contexts, the Court has ruled that the "completed" reentry offense is a general intent crime in which the only mens rea required is the intent to return voluntarily, and no more. See, e.g., United States v. Champegnie, 925 F.2d 54 (2d Cir. 1991); United States v. Martus, 138 F.3d 95 (2d Cir. 1998). Ignorance of the law, or a good-faith belief in the legality of one's reentry, is no defense. And, indeed, Martus even stated -- albeit in dicta since the crime there was a completed reentry rather than an attempted one -- that "the government need only prove a voluntary act of reentry or attempted reentry by the defendant that is not expressly sanctioned by the Attorney General." 138 F.3d at 97 (emphasis added). The instant case adopts this dicta as its holding, and it thus becomes the law of the Circuit. Op. at 4-5.

Stop near Canadian Border Upheld; Reasonable Suspicion Found

United States v. Avtar Singh, Docket No. 04-3324-cr (2d Cir. July 19, 2005) (Walker, Cardamone, Jacobs) (Op. by Cardamone): This opinion breaks no new ground. It simply applies a well-established rule -- that vehicle stops by roving patrols near an international border must be justified under the familiar "reasonable suspicion" standard, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975) -- to a particular stop near the Canadian border. Those interested in the details can consult the opinion; suffice it to say that even to this defense-minded reader, the reasonable suspicion standard appears readily satisfied.

The opinion is otherwise of note only because it contains a folksy little map of the relevant geographic area (op. at 4), as well as a totally gratuitous mention of "the October 11, 1776 Battle of Valcour Island between the colonial Navy under General Benedict Arnold and a British squadron under General Sir Guy Carleton. See Harris Bird, Navies in the Mountains: The Battles on the Waters of Lake Champlain and Lake George, 1609-1814 196-213 (1962)." (Op. at 3). How very Judge Cardamone!

Tuesday, July 19, 2005

An Inoperable Gun Qualifies as a "Firearm" within Meaning of Felon-in-Possession Statute

United States v. Rivera, Docket No. 04-5480-cr (2d Cir. July 18, 2005) (Walker, Jacobs, Leval) (Op. by Walker): File this one under the category of "Gee, I sure hope the defendant didn't go to trial just to preserve this issue for appeal." In this short opinion, the Circuit concludes that an inoperable gun (specifically, one with both a broken firing pin and a flattened "firing-pin channel," whatever that is) qualifies as a "firearm" within the meaning of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Somewhat to our surprise, the Circuit had not previously answered this question. (Although, to our defense, several other Circuits -- as well as several district courts within the Second Circuit -- have answered it, and in the same way that the Court does in this opinion). The statutory language is unfortunately difficult to dispute: Section 921(a)(3) defines a "firearm" as "any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." (emphasis added).

A glimmer of hope remains. The opinion discusses the possibility of a gun that has been so radically altered from its original design that it no longer qualifies as a "firearm." As the Court hypothesizes: "For example, a gun with a barrel filled with lead, maybe for use as a theatrical prop, might perhaps no longer be deemed 'designed to' or 'readily be converted' to fire a bullet." Op. at 6. To support this proposition, it cites a case from the District of Oregon ruling that guns "deactivited or modified by, inter alia, drilling barrels and filling them with metal pins or rods were no longer 'firearms' . . . because it would be 'extremely difficult' to convert them into operable weapons." Op. at 6-7. Of course, since Rivera's gun was not so radically altered, he cannot avail himself of this argument: "The broken firing pin and the flattened firing-pin channel did not change the design of the weapon." Op. at 7.

Friday, July 15, 2005

Circuit approves of combining minority groups in a Batson challenge, but "race-neutral" justifications remain easily acceptable on habeas review

Green v. Travis, Docket No. 04-0426-pr (2d Cir. July 7, 2005) (Jacobs, Sotomayor, Hall) (Op. by Sotomayor): This case recognizes for the first time in this circuit that minority groups can be combined to form a “cognizable racial group” under Batson v. Kentucky. 476 U.S. 79, 86 (1986). Affirming the decision below, the Circuit found on habeas review that the state Appellate Division’s determination that Black and Hispanic venirepersons do not constitute a “cognizable racial group” was an unreasonable application of Batson.

During the defendant’s state trial for possession and sale of cocaine, defense counsel raised a Batson challenge after the prosecutor used three peremptory challenges to strike one Black man, one Black woman and one Hispanic woman during the first round of jury selection (leaving no minorities at the end of the round), and two peremptory challenges to strike one Black Man and one Hispanic woman during the second round of selection. The trial judge ruled that the defense had not made out a prima facie case under Batson because defense counsel had done no more than “refer[] to certain racial groups,” and the Appellate Division held that, “‘minorities’ in general do not constitute a cognizable racial group.” Op. at 4.

On habeas review, the Circuit agreed with Judge Weinstein of the Eastern District of New York that such a reading of Batson is unreasonable under 28 U.S.C. § 2254(d)(1). The Circuit relied on the Supreme Court’s holding in Powers v. Ohio that a defendant has third-party standing to raise a Batson challenge when venirepersons of a different race than the defendant are excluded from the jury. 499 U.S. 400, 416 (1991). The Circuit reasoned that because Powers established the right of individual venirepersons not to be excluded from a jury because of race (499 U.S. at 409), the equal protection clause is violated when “any and all venirepersons” are struck from a jury because of their race. Op. at 13. The Circuit determined that, “the only continuing relevance of Batson’s ‘cognizable racial group’ language is the requirement that a defendant… must demonstrate that a peremptorily excused venireperson was challenged by reason of being a member of some ‘cognizable racial group.’” Op. at 14 (emphasis in original).

However, the Circuit affirmed the district court’s denial of the defendant’s petition for a writ of habeas corpus, holding after a reconstruction hearing that Green failed to establish by a preponderance of the evidence that any of the challenges were based on race or ethnicity. While the prosecutor did not remember her reasons for the peremptory strikes independently, Judge Weinstein allowed her to recreate her reasoning in a reconstruction hearing after reading through her notes and the trial transcript. Based on her notes taken during voir dire and given her practice at voir dires, the prosecutor offered the following reasons for striking each of the five minority venirepersons: (1) for having a husband who had been arrested and prosecuted in the same county; (2) for having a family member who had been arrested on a drug offense and for having difficulty following the prosecutor’s questions; (3) for having a family member who had been mistreated by the police and for expressing hesitation regarding relying on witness testimony; (4) for having a history of negative interactions with the police and “generally appear[ing] confused;” and (5) for the prosecutor’s belief that at the time she must have concluded that the individual would have problems assessing witness credibility (although she lacked notes from voir dire to support this). Op. at 5-6. The district court credited the prosecutor’s testimony at the reconstruction hearing and ruled that Green failed to prove that the prosecutor’s challenges were race based. The Circuit agreed and noted that unfavorable demeanor and perceived bias against law enforcement have both been upheld as legitimate race-neutral justifications. Op. at 18, citing McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir. 1996); United States v. Rudas, 905 F.2d 38, 40-41 (2d Cir. 1990).

Ultimately, then, while the Circuit here clarified the scope of Batson by holding that a “cognizable racial group” can include multiple minority groups, this case reveals the feeble legs upon which any Batson challenge stands. The Circuit’s acceptance of the prosecutor’s explanations for striking one juror, derived not from her recollection or from her notes, but simply from reading the trial transcript, while not a new holding of law (See Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002)), is especially troubling. It underscores the ease with which “race-neutral justifications” proffered by prosecutors have been accepted by courts on habeas review.

(By Jocelyn Simonson, a rising 3-L at Harvard Law School).

Thursday, July 14, 2005

Another Advantage of a Less Detailed Affidavit in Support of a Suppression Motion

United States v. Luis Agudelo, Docket No. 04-2223-cr (2d Cir. July 13, 2005) (Pooler, Parker, and Castel, D.J.) (Op. by Parker): Defense lawyers are generally well aware of the tactical advantages of filing a less detailed affidavit, rather than a more detailed one, from a client in support of his or her suppression motion. After all, the only real goal of the affidavit is to put in enough facts to warrant an evidentiary hearing, and any additional details beyond the bare essentials just gives unnecessary notice to the prosecution as well as additional ammunition for its cross of the client. This case demonstrates an additional -- and especially important -- advantage that the less detailed affidavit has over the more detailed one: Your client is less likely to receive an obstruction enhancement even if the district judge buys the Government's story at the hearing and denies the motion. Fortunately for Mr. Agudelo, his affidavit was sufficiently vague: The Circuit ruled that the district judge clearly erred in finding the affidavit "knowingly false" and thus warranting a 2-level obstruction enhancement under § 3C1.1, because it was just as likely that the defendant simply "misremembered" the relevant events rather than lied about them. The decision also contains some great language warning district courts against applying the obstruction enhancement simply because they have denied the suppression motion.

The relevant facts are simple. Agudelo filed a pretrial suppression motion, supported by his affidavit. Among other things, he stated that "at one point, I told the agents that I wanted to speak to a lawyer but they did not cease their questioning. Instead, they told me, in substance, that I would be able to see a lawyer at a later point in time." Op. at 7.

Mr. Agudelo did not testify at the suppression hearing. The two agents who interrogated him did, however, and testified that Agudelo did not ask for a lawyer at this time. However, one of the agents admitted that "I may have described to [Agudelo] the process which would take place after he's brought down to the marshals and pretrial and all that stuff," and that he "would be able to have a lawyer with him for his initial appearance." Op. at 8.

The district judge credited the agents' testimony and denied the motion. At sentencing following Agudelo's conviction, the judge imposed the 2-level obstruction enhancement, concluding that his affidavit was "knowingly false." Op. at 5. (Note: the court also imposed the enhancement on an alternative ground, which was upheld by the Circuit).

On appeal, the Circuit ruled that the district judge's finding that Agudelo's statements were knowingly false was clearly erroneous. Crucially, the Court distinguished the case before it from an earlier case relied upon by the district court -- United States v. Lincecum, 220 F.3d 77 (2d Cir. 2000). In Lincecum, the defendant filed a detailed affidavit in support of a suppression motion in which he specifically stated that he requested to see a lawyer on three distinct occasions -- once at his house, once in the car with the agents, and once in the interrogation room. Agents testified at the hearing, however, that Lincecum never requested to speak with an attorney, and the court credited their testimony. It also imposed an obstruction enhancement, finding that Lincecum's affidavit was knowingly false. The Circuit affirmed, agreeing that he had made an "obvious lie."

Distinguishing Lincecum, the Court in this case pointed out that "Lincecum's three detailed statements reeked of fabrication because he could not have simply misremembered so much detail." Op. at 8. "On the other hand," however,

"Agudelo's two sentences averring that he had asked for a lawyer were far more vague. Moreover, his statement that, 'they told me, in substance, that I would be able to see a lawyer at a later point in time,' was actually supported by the cross-examination of one of the agents . . . [who] admitted having told Agudelo that he would be able to have a lawyer with him for his initial appearance."

Op. at 8. Under these circumstances, the Court concluded, "rather than willfully fabricating the affidavit in order to obstruct justice, Agudelo may well have simply misunderstood the agent's comments or misremembered the chronology of the conversation." Op. at 9. It thus found that "the District Court committed clear error in finding . . . that Agudelo submitted a knowingly false affidavit." Id.

The Court then threw in some very nice comments to explain why "extending Lincecum even to Agudelo's vague affidavit" carries "significant risks." Op. at 9. First, such an extension would mean that a defendant would "automatically be subject to an enhancement for obstruction of justice if the suppression motion is denied," which flouts the Supreme Court's command in United States v. Dunnigan, 507 U.S. 87, 94 (1993), that the enhancement is appropriate only where the defendant acts "with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Even better, the Court adds that "[e]xtending Lincecum to these facts would also raise the troubling prospect that future defendants might either be deterred from pressing arguably meritorious Fourth Amendment claims or unfairly punished when they do." Op. at 9.

Wednesday, July 13, 2005

Did the Circuit Overlook a Controlling Decision by Judge Friendly in Ruling that Purely Intra-State Phone Calls Are Sufficient under § 1958?

United States v. Perez, Docket No. 03-1445(L) (2d Cir. July 11, 2005) (Calabresi, Katzmann, Parker) (per curiam): In this very short per curiam opinion, the Circuit rules that even wholly intra-state phone calls (here, phone calls from one location in Connecticut to another) are sufficient to trigger federal jurisdiction under the federal "murder-for-hire" statute, 18 U.S.C. § 1958(a). This is so despite the fact that the relevant language in § 1958(a) states that "whoever ... uses ... any facility in interstate ... commerce ..." The Court ruled -- after noting a circuit split on this question -- that this language was trumped by § 1958(b), the "definitional subsection" of the statute, which describes (and then defines) a "facility of interstate commerce." Op. 6. And since the phone used by the defendant was part of an inter-state network (i.e., he could make long distance calls on it), even if the calls he actually made were purely intra-state, the jurisdictional element had been met.

Shockingly to this reader, the opinion describes this as an issue of "first impression" in the Circuit. Op. at 1. Not so -- or not nearly so. In United States v. Archer, 486 F.2d 670 (2d Cir. 1973), not mentioned anywhere in the per curiam opinion, Judge Friendly ruled in a bribery prosecution under the Travel Act, § 1952 -- § 1958's predecessor statute, and which contains the identical phrase "facility in interstate commerce," see infra -- that the evidence was insufficient to support the defendants' convictions because the sole inter-state phone call was one manufactured by Government investigators. Although the facts are somewhat convoluted, essentially what happened is that, after a series of purely intra-state phone calls, the federal prosecutor instructed the undercover agent to travel to a hotel in New Jersey to call one of the defendants in New York, "for the sole purpose of having [the defendant] talk in an interstate phone call." Id. at 674.

As Judge Friendly explained, the question before the Court was "whether the defendants here have used a facility in interstate or foreign commerce, for the purposes listed in § 1952(a)(3), in a sufficiently meaningful way to subject themselves to liability under the statute." 486 F.2d at 680. Looking to legislative history, case law, as well as the rule of lenity, Judge Friendly concluded that the manufactured inter-state call did not suffice to satisfy the interstate element of the Travel Act. As he wrote for the Court:

"Whatever Congress may have meant by § 1952(a)(3), it certainly did not intend to include a telephone call manufactured by the Government for the precise purpose of transforming a local bribery offense into a federal crime. . . . [I]t is immaterial that Klein returned the call rather than receiving it as the Government had plotted."

Id. at 681 (emphasis added). The Court continued, explaining that

"When Congress responded to the Attorney General’s request to lend the aid of federal law enforcement to local officials in the prosecution of certain crimes, primarily of local concern, where the participants were engaging in interstate activity, it did not mean to include cases where the federal officers themselves supplied the interstate element and acted to ensure that an interstate element would be present."

Id. at 682 (emphasis added).

Archer's holding obviously assumes that purely intra-state calls are insufficient to establish jurisdiction under § 1952: If a manufactured inter-state call is insufficient, surely purely intra-state calls are also insuffient. Archer has not been overruled and remains binding law in the Second Circuit.

Section 1958 -- the murder-for-hire statute at issue in Perez -- is "modeled after the Travel Act, 18 U.S.C. § 1952, and the legislative history indicates that Travel Act precedent should be considered relevant to interpretation of this provision." 3 Leonard B. Sand et al., Modern Federal Jury Instructions at 60-37 (2002). Indeed, the present § 1958 was originally enacted as part of the Comprehensive Crime Control Act of 1984 as new § 1952A. (Congress re-designated § 1952A as the present § 1958 in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7053(a), 102 Stat. 4181 (1988)). And as the House Report accompanying the statute stated,

"Section 1952A follows the format of present section 1952. Section 1952A reaches travel in interstate or foreign commerce or use of the mails or of a facility in interstate or foreign commerce with intent that a murder be committed in violation of State or Federal law."

H. Rep. No. 1030, 98th Cong., 2d Sess. 306, reprinted in 1984 U.S.C.C.A.N. 3182, 3485; see United States v. Riccardelli, 729 F.2d 829, 833 (2d Cir. 1986) (using murder-for-hire statute to interpret Travel Act). As the Fifth Circuit explained, Travel Act jurisprudence is a proper referent for the interpretation of § 1958 because "the obvious purpose" of the murder-for-hire statute is "to supplement" the Travel Act. United States v. Edelman, 873 F.2d 791, 794 (5th Cir. 1989); see United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996) ("In interpreting 18 U.S.C. § 1958, it is entirely appropriate to look at case law construing the Travel Act.") (emphasis added). Archer’s definition of the interstate element of the Travel Act is therefore directly applicable to the interstate element of § 1958.

Indeed, at least one other Circuit -- the Fourth -- explicitly relied on Archer and its interpretation of § 1952 to reverse a § 1958 conviction on precisely the same ground. United States v. Coates, 949 F.2d 104 (4th Cir. 1991). In Coates -- also not mentioned in the per curiam opinion in Perez -- defendant Coates "wanted to have his step-brother killed" and "called York to arrange a murder-for-hire." Id. at 105. Both parties resided in Maryland.

York was a police informant and eventually introduced Coates to an undercover officer posing as a hit man who would do the actual killing. The three men met and discussed the killing on numerous occasions. They settled upon using a bomb to kill Coates’s brother in law. Id. All of the meetings occurred in Maryland.

The undercover, needing to be absent for some time to conduct an unrelated investigation, falsely told Coates that he had to go to Kentucky. The court’s opinion describes what next occurred:

"The Kentucky trip, however, was just a ruse and the agent never went there. Instead, he made a much shorter trip in order to place an interstate phone call.
Knowing that they needed a jurisdictional basis in which to prosecute Coates for a federal crime, [the informer and the undercover] agent went just over the Maryland line into Virginia, concededly for the sole purpose of making an interstate telephone call to Coates. Once in Virginia, the agent called Coates in Maryland and discussed with him the details of the bomb and the murder scheme."

Id. at 105. Coates was eventually arrested and charged with violating 18 U.S.C. § 1958.

The Fourth Circuit reversed Coates’s conviction. It relied primarily upon Archer and began by noting that "the Travel Act is directly analogous to § 1958." Id. at 106 (emphasis added). The court then held that because "the government agent drove to Virginia for the sole purpose of making a telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to discuss the scheme," such "‘manufactured jurisdiction’ cannot form the basis for a federal prosecution." Id. at 105-06. As it concluded, the count charging Coates with violating the federal murder-for-hire statute "was not based upon cognizable federal jurisdiction and should have been dismissed." Id. at 106.

Coates, like Archer, obviously assumes that purely intra-state phone calls are insufficient to satisfy § 1958's jurisdictional predicate. Yet neither case is mentioned in the per curiam opinion in Perez.

Inquiring minds would like to know why. Are we missing something?

Saturday, July 09, 2005

Venue for Offense of Advertisting to Receive Child Porn, Placed on Internet Chat Room, Is Proper Wherever Advertisement Is Accessed or Viewed

United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly § 2251(c)(1)(A)), venue is proper wherever the advertisment is actually seen or accessed. Here, the defendant put up a notice soliciting others to trade kiddie porn with him on an Internet chat room. Although he physically did so from his computer in Kentucky, the (in)famous detective Shlomo Koenig (of the equally famed Rockland County Sheriff's Department) accessed the site and defendant's ad while sitting at his computer in Rockland County. The Court ruled that venue was proper in the Southern District of New York.

The other notable point about this opinion is its concluding, and ultimately puzzling, discussion of the sentence to be imposed on remand. Since Rowe was convicted under the prior version of this statute (18 U.S.C. § 2251(c)(1)(A)), his sentence is governed by the Circuit's decision earlier this year in Pabon-Cruz, which famously held that a defendant convicted of this offense may be sentenced either to a fine, or to a mandatory minimum of 10 years' imprisonment, or both -- but nothing else. Because the district court in this case sentenced Rowe before the decision in Pabon-Cruz, it mistakenly believed that it had to impose a 10-year mandatory minimum. The court thus imposed a 10-year sentence, all the while lamenting the harshness and unfairness of such a result. On appeal, the Court vacated the sentence and remanded the case for resentencing in accordance with Pabon-Cruz.

The odd thing is that the Court also added that, on remand, "the district court must resentence Rowe under a regime of advisory Sentencing Guidelines," and that "the sentencing judge must consider" the § 3553(a) factors, "including the applicable Guidelines range and available departure authority . . . [and] may then impose either a Guidelines sentence or a non-Guidelines sentence." Op. at 24.

But how is such a sentence possible, given Pabon-Cruz's reading of § 2251(c)(1)(A) -- that a sentencing court can only sentence the defendant to a fine, a minimum 10-year sentence, or both? The Court quotes Pabon-Cruz for the proposition that "we 'remand the cause to the District Court for resentencing consistent with our opinion here and with such Sentencing Guidelines as may be applicable in the circumstances presented.'" Op. at 23 (quoting Pabon-Cruz, 391 F.3d at 105). But the critical difference is that Pabon-Cruz was convicted of both § 2251(c)(1)(A) and a simple possession of kiddie porn count, which carries no mandatory minimum. Thus, an "in-between" sentence could be imposed on the simple possession count. Rowe, in contrast, was convicted only of a single § 2251(c)(1)(A) count.

Perhaps readers can provide further enlightenment on this point. But it appears that, on remand, the district court's only choices are to sentence Rowe to (1) a fine, (2) 10 years in prison, or (3) both. The possibility of a more rational sentence appears precluded by Congress's poor drafting of the statute, despite what the Court believes.

Even If It Existed, Right to Counsel at Second-Tier State Appeal, after Grant of Leave to Appeal, Would Be Non-Retroactive New Rule under Teague

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. Actually, the question is even narrower than that, since it arises on habeas review: If such a right existed, would its recognition constitute a new rule within the meaning of Teague, and, if so, can it be retroactively applied on collateral review? We will spare you the details, but the Court holds that even if such a right exists -- which the Court highly (and rightly) doubts in light of the relevant Supreme Court cases -- its would constitute a new rule that does not fall under either of the Teague exception. Therefore, since the right, even if existent, cannot be applied retroactively to the petitioner, the habeas is denied.

Thursday, July 07, 2005

Defendant Need Not Be Told at Plea That His Sentence Will Run Consecutively to an Undischarged Sentence

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner's claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that case would run consecutively to another sentence he was already serving. The question turns on whether the consecutiveness of this sentence is a "direct" or merely "collateral" consequence of the defendant's guilty plea, since the Supreme Court has held that a plea of guilty is voluntary and intelligent only if the defendant enters the plea "with full awareness of its 'direct consequences.'" Op. at 7, quoting Brady v. United States, 397 U.S. 742, 748 (1970). The Circuit has defined "direct" consequences as those that have a "definite, immediate and largely automatic effect on the range of the defendant's punishment." United States v. United States Currency, 895 F.2d 908, 915 (2d Cir. 1990).

The Circuit concludes that the consecutiveness of the instant sentence was not a direct consequence of Wilson's guilty plea. This is somewhat surprising, given that under New York law, the judge essentially had to impose a consecutive sentence given the prevailing circumstances. Under N.Y. Penal Las § 70.25(2-b), a sentence imposed after a violent felony conviction "must run consecutively to a sentence imposed on an earlier felony where the violent felony was committed while the defendant was out on bail . . . on the earlier conviction [] but before sentence was imposed for that earlier felony." Op. at 4 (emphasis added). Wilson fell squarely within this provision. And while there is a "limited discretionary exception" to the requirement of consecutiveness, Wilson apparently did not qualify for it. See § 70.25(2-b) (court may run sentence concurrently if there are "either mitigating circumstances that bear directly upon the manner in which the crime was committed or . . . the defefendant's participation was relatively minor"). When Wilson pled guilty, therefore, it was "largely automatic" that he would receive a consecutive sentence. It follows that the consecutiveness of the sentence qualifies as a "direct" consequence of the plea.

The Court rejected this line of reasoning, relying on the fact that New York law gives the sentencing judge some wiggle room in not imposing a consecutive sentence. Op. at 11. However, since there seems to be no dispute that Wilson did not qualify for such largess from the sentencing judge, this rejection appears formalistic.

Wednesday, July 06, 2005

Does the Circuit's Grant of a COA Foreclose a Subsequent Anders Motion?

Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It's hard to know what to make of this very short opinion, since it's very light on the relevant facts. The gist of it is that the Court denies appointed counsel's motion (filed pursuant to Anders v. California) to be relieved as counsel on appeal on the ground that there are no non-frivolous appellate issues, because the Court disagrees that there are only frivolous issues to appeal. As the Court concludes, counsel's argument (in support of his Anders motion) shows only "that the appeal is likely without merit, not that it is frivolous." Op. at 6. Because the opinion is short on facts, however, it's hard to evaluate who's right (even assuming that a line can be drawn between a merely meritless appeal (which appointed counsel must prosecute) and a frivolous one (which appointed counsel must not prosecute)).

The only interesting thing about the opinion is its suggestion that because the Circuit itself earlier granted a Certificate of Appealability to the formerly pro se petitioner (after the district court denied it), it has already concluded that the appeal is non-frivolous, and thus that an Anders motion is not appropriate. The Court does not come right out and say this, but suggests this point by citing Lucidore v. New York Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) , for the proposition that a COA that has already been issued is treated as "presumptive[ly] legitimate." Op. at 6-7.

This presumption makes intuitive sense, since a COA can be issued only if the habeas petitioner has made a "substantial showing of the denial of a constitutional right." Barefoot v. Estelle, 463 U.S. 880 (1983). By granting a COA and allowing the appeal to proceed, therefore, the Circuit has already concluded that the appeal is not frivolous. An Anders motion filed after a COA has issued represents, in a way, an attempt to re-litigate the question of whether the appeal is frivolous. And in Love, perhaps, the Circuit is telling appointed counsel not to bother wasting its time relitigating the issue of frivolousness.

Of course, no firm rule is established in this case. Surely, the Circuit will consider each case -- and each Anders motion -- in light of the particular facts, and grant or deny the motion accordingly. Nonetheless, Love is at least a warning to appointed counsel to be particularly diligent in supporting his or her Anders request in an appeal where the Court has already issued the COA.

Finally, whether the same rule / warning applies when the COA was issued by the district court rather than the Circuit is anybody's guess ....

Even Better Language Limiting the Reach of the Almendarez-Torres Exception

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant's criminal history do not fall within the Almendarez-Torres exception to the Apprendi-Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from "the conclusive significance of a prior judicial record to fall within that exception." Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

"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."

When this Blog noticed yesterday that an amended opinion had been issued in Weisser, our fear was that the Court recognized this great dicta and decided to get rid of it. Fortunately, the Court did not do so, and in fact did the very opposite -- it expanded upon and clarified its discussion concerning the limits of the Almendarez-Torres exception.

The critical addition is found in the same footnote previously discussed, footnote 10 on page 27 of the slip opinion. This footnote, with the new addition in red, now states:

"Specifically, 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.' Although certain facts of prior conviction are not subject to the Sixth Amendment's protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 543 U.S. ___, 125 S. Ct. 1254, 1262 (2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser's previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are 'too far removed from the conclusive significance of a prior judicial record' to fall within the exception. Shepard, 125 S. Ct. at 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relyin on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same)."

The take-away from the amended portion is that there are indeed facts, ostensibly concerning a defendant's criminal history, that are "too far removed from the conclusive significance of a prior judicial record" to be covered by the Almendarez-Torres exception. Amended Op. at 27 n.10. Those facts include the facts listed in the 2nd and 3rd categories relied upon by the district court to horizontally depart: the defendant's "repeated failure to register as a sex offender" and his "'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.'" Id. One would assume that other "criminal history" facts of a similar variety likewise would not be covered by the Almendarez-Torres exception, though which facts would so qualify is unclear. Indeed, the amended opinion does not even answer whether the first category of facts relied upon by the district court -- Weisser's prior repeated parole violations -- falls within or outside of the Almendarez-Torres exception, noting only that this question "is open to debate." Id.

At the very least, the amended opinion in Weisser should serve as a clarion call to all defense counsel: Raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum!