Misinformation about Mandatory Nature of Guidelines Does Not Render Plea Unknowing

United States v. Jose Saldana et al., Docket No. 03-1452 (L) (2d Cir. August 26, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): This hard-to-read opinion holds -- I think -- that a defendant who pleaded guilty before Blakely and was misinformed by the court at his plea that sentence would be imposed pursuant to mandatory Guidelines cannot withdraw his guilty plea based on a claim that, due to this misinformation (in light of Booker), his plea was not knowing and intelligent. The qualification results from the opinion's muddled discussion, and especially its collapsing of two distinct issues: Whether the plea itself was knowing and voluntary, and whether an appellate waiver provision contained in a plea agreement is enforceable.

These are distinct issues, yet the opinion treats them interchangeably. Here's a typical passage:

"The issue presented to us here is whether a defendant who, prior to January 12, 2005, entered into an otherwise enforceable plea agreement, which included a waiver of right to appeal a sentence, may seek to withdraw his plea based on an alleged mistake as to the mandatory nature of the United States Sentencing Guidelines."

Op. at 5 (emphases added); see also op. at 8 ("Saldana's plea and waiver were also knowing and intelligent."). There's some serious confusion here. First, who cares that there's a plea agreement with an appellate waiver? The law is clear that even enforceable appellate waivers do not bar an appeal claiming that the plea itself is invalid. E.g., United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000). Even Morgan, 406 F.3d 135 (2d Cir. 2005), the case upon which this opinion rests (and no model of clarity itself), recognized this point. Whether a plea agreement or an appellate waiver exists has nothing to do with whether the defendant's plea was knowing and intelligent -- which is apparently the argument raised by the defendant. The defendant's argument (presumably, since the opinion says nothing about it) is that his plea is invalid because, had he been told correctly that the district judge (ex-Judge Martin, no less) would not be bound by the Guidelines range even if he went to trial, and that he could impose a sentence far below that range regardless of whether he pled or was found guilty after trial, he would not have pleaded guilty. Whether a plea agreement or an appellate waiver exists is irrelevant to the determination of this question.

Second, why "alleged" mistake (as to the mandatory nature of the Guidelines)? How's it "alleged" -- surely there's no dispute that when the judge told the defendant that he would be sentenced under mandatory Guidelines, this was a mistake -- given Booker. It wasn't a mistake then, of course, but it surely is one now.

In any event, as a result of this confusion, the opinion relies heavily on Morgan, enforcing an appellate waiver entered into pre-Blakely, to reject Saldana's attempt to vacate his plea. Yet in describing its holding, the opinion speaks not of whether the plea itself is valid, but whether the plea agreement and appellate waiver are enforceable: We "hold that an otherwise valid plea agreement and waiver of right to appeal sentence, entered into before January 12, 2005, is enforceable even if the parties, at the time they entered into the agreement, erroneously believed that the United States Sentencing Guidelines were mandatory rather than advisory." Op. at 12. But this is what Morgan already held -- so what does this opinion add? Oy.

Apprendi Applies to Mandatory Minimum Provisions of 21 U.S.C. § 841(b); Harris Distinguished

United States v. Manuel Gonzalez, Docket No. 03-1356 (2d Cir. August 22, 2005) (Sack, Sotomayor, Raggi) (Op. by Raggi): This is a significant opinion that is long overdue. The Court finally clarified that, in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its own en banc decision in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), drug quantity is always an element of 21 U.S.C. § 841, regardless of whether the actual sentence imposed exceeds the 20-year maximum for offenses involving an unspecified quantity of drugs under § 841(b)(1)(C). This decision thus puts an end to the Government's nonsensical, schizophrenic interpretation of § 841 -- that quantity sometimes is, but sometimes is not, an element (depending post-hoc on whether the actual sentence imposed exceeds 20 years). The takeaway is that in order for a district judge to impose a mandatory minimum sentence under one of the aggravated provisions of § 841(b), a jury must find beyond a reasonable doubt -- or the defendant must admit -- the triggering quantity.

In this particular case, Gonzalez was charged with conspiring to distribute 50 grams or more of cocaine base, thus triggering the severe mandatory minima of § 841(b)(1)(A). Because he had a prior state drug felony, he was subject to a mandatory minimum of 20 years' imprisonment and a maximum of life imprisonment based on the quantity. Gonzalez entered a guilty plea prior to Apprendi, but disputed the quantity alleged in the indictment. After Apprendi was decided, he moved to withdraw his guilty plea on the grounds that (1) he was misinformed by the district judge that the quantity issue would be resolved by the judge rather than the jury, and that (2) there was no factual basis for his plea, since he did not admit to the 50+ grams "element". The court denied the motion and sentenced Gonzalez to the 20-year minimum.

The Government argued on appeal that the 20-year sentence (imposed as a mandatory minimum) was proper despite Apprendi and despite the lack of either a jury finding or an admission regarding drug quantity because this sentence did not exceed the 20-year maximum authorized by § 841(b)(1)(C) for drug offenses involving an indeterminate quantity of narcotics. The Court resoundingly rejected this mix-and-match reading of § 841: The "sentencing range [provided by § 841(b)(1)(C] and the higher ones provided in § 841(b)(1)(A) and -(b)(1)(B) for quantified crack offenses operate as unified and independent wholes, [and] cannot be deconstructed . . . so that drug quantity operates as an element for purposes of determining an applicable sentencing maximum but as a sentencing factor for purposes of determining the applicable mandatory minimum." Op. at 5. Among other things, the Court rightly pointed out the unworkability of the Government's reading, in which the question of whether drug quantity is an element depends in each case on what happens at sentencing, after the trial or guilty plea:

"[J]ustice would hardly be well served by a rule that delayed the identification of one or more elements of a crime until sentencing. Prosecutors, who must draft indictments and develop evidence to meet their burden of proof; defendants and their counsel, who must decide whether to challenge the sufficiency of the Government's case or pursue plea negotiations; and trial judges, who must rule on the relevancy and sufficiency of evidence, prepare jury instructions, and ensure the factual bases for guilty pleas, all need to know long before sentencing which facts must be proved to a jury and which ones can be reserved for resolution by the sentencing judge. Thomas reconstrued § 841 to provide a clear answer to this question in light of concerns raised by Apprendi, and we repeat the court's response today: drug quantity is an element that must always be pleaded and proved to a jury or admitted by a defendant to support conviction or sentence on an aggravated offense under § 841(b)(1)(A) or -(b)(1)(B)."

Op. at 35. For emphasis, Judge Raggi notes that the opinion in Gonzalez was circulated to all active members of the Circuit for review before it was filed. Op. at 37 fn.18.

The crux of Gonzalez is its reading of the Apprendi rule as applying to any fact that potentially exposes the defendant to a greater sentence even if the actual sentence imposed, without a jury-finding on the disputed fact, does not exceed the statutory maximum without that fact. The Court relied heavily upon the following passage from Apprendi (with its own emphasis): "It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Op. at 26-27. Gonzalez also relied on the Supreme Court's recent decision in Shepard v. United States, 125 S. Ct. 1254, 1262 (2005), in which a plurality of the Court ruled that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury." Op. at 31 (emphasis in original).

This reading of the Apprendi rule also served to distinguish the case at hand from Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court, distinguishing Apprendi, held that facts that increase the mandatory minimum under 18 U.S.C. § 924(c) are not elements that need to be proved to a jury but are mere sentencing factors that can be found by a judge. Judge Raggi rightly criticizes Harris -- "The logic of the distinction drawn in Harris between facts that raise only mandatory minimums and those that raise statutory maximums is not easily grasped," op. at 25 -- but concludes simply that Harris is distinguishable. This is because under § 924(c), a fact (e.g., the brandishing of a firearm) increases only the statutorily required minimum but does nothing to alter the maximum (presumed to be life for all § 924(c) offense). In contrast, § 841(b) "does not use a fact (drug quantity) simply to identify increasing minimum sentences within a penalty scheme with a fixed maximum. Instead, when drug quantity raises a mandatory minimum sentence under § 841, it simultaneously raises a corresponding maximum, thereby increasing a defendant's authorized sentencing range above what it would have been if he had been convicted of an identical unquantified drug crime." Op. at 26. And because the Apprendi rule applies to any fact that "increases the prescribed range of penalties to which a defendant is exposed," it applies to drug quantity under § 841(b).

The Second Circuit joins the 4th, 9th, and D.C. Circuits in adopting this reading of § 841(b). Arrayed in the opposing camp are the 1st, 5th, 6th, 8th, and 10th Circuits, which agree with the Government that whether drug quantity is an element or a sentencing factor varies in each case and is "revealed only at sentencing." Op. at 33-34. Given the clear split, and given that prosecutions under § 841(b) constitute a significant portion of the federal criminal docket, review by the Supreme Court seems well warranted.

Loansharking Conviction Upheld

United States v. Madori, Docket No. 03-1526 (2d Cir. August 19, 2005) (Op. by B.D. Parker): No new ground is broken in this fact-intensive opinion, which principally affirms a loan-sharking conviction against sufficiency and Brady/Giglio challenges. It is worth reading only for the richness of the background story: A Mob-connected lender; a loan made at 150% interest; meetings at the Diamond Club, a local strip joint; a co-defendant clandestinly cooperating with the FBI on an unrelated case (thus generating the Brady dispute); and threats involving the "twist[ing]" of the late-paying borrower's "nuts". Who needs "The Sopranos"! (But does anyone know when the new season starts?)

A False Statement Made on One Document, even if Not Material to that Document, Can Be Material When Considered against the Overall Process

United States v. Shitian Wu, Docket No. 03-1503 (2d Cir. August 18, 2005) (McLaughlin, Pooler, Wesley) (Op. by Wesley): Because this case was litigated by attorneys from this Office, we will refrain from commentary and stick to description.

Essentially, the majority held, with a dissent from Judge Pooler, that a false statement made in one immigration document, though immaterial to the purposes of that particular document, is nonetheless material under 18 U.S.C. § 1546(a) -- prohibiting the making of "any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder" -- because that document "is part of a larger application process . . . and the statute is best understood as encompassing misrepresentations of material facts in that process no matter how many documents that may include." Op. at 4. While Wu's false statements were immaterial to the particular document in which they appeared (an affidavit of financial support), they were unquestionably material to the "overall process" within which this particular document was submitted -- i.e., Wu's attempt to convince the INS to grant immigration visas to his relatives. This was good enough to sustain his conviction, Judge Wesley concluded, because "the materiality of a falsehood should be assessed not against a preliminary or partial determination within a process, but instead against the 'process as a whole.'" Op. at 7.

Judge Pooler disagreed, reading the statute more narrowly and measuring materiality not against the larger, overall process, but simply against the document itself (in which the false statement appears). As she wrote, "Because Congress has directed us to determine the materiality of the false statement in the context of the 'document required by the immigration laws or regulations," and because those laws and regulations and the instant document itself all relate solely to the self-contained determination of whether the sponsored immigrant is inadmissible as a public charge, I conclude that Wu's false statements here were not material." Op. at 15. Judge Pooler also points out that even if there is some ambiguity concerning the scope of § 1546(a), the rule of lenity would require her narrower reading rather than the majority's. Op. at 15-16.

Time for a Candyman en Banc?

United States v. Willie Coreas, Docket No. 03-1790-cr (2d Cir. August 18, 2005) (Jacobs, Calabresi & Rakoff, D.J.) (Op. by Rakoff): Our faith in the rule of law has been restored. In this opinion, Judge Rakoff of the SDNY, writing for Judges Jacobs & Calabresi as well (thus covering the political spectrum from the Federalist Society to the ACS), concluded that the now-infamous "Operation Candyman" affidavit, excised of the Government agent's fabrications, was insufficient to support the issuance of numerous search warrants, including that leading to Coreas's arrest and prosecution for possession of child pornography. Unfortunately, because a prior panel of the Circuit reached an opposite conclusion on the same issue two weeks earlier in Martin (click here for our less-than-subtle critique of Martin), the panel in Coreas nonetheless upheld the search warrant.

The opinion in Coreas is highly recommended. Some examples to entice the reader: A powerful beginning ("Child pornography is so repulsive a crime that those entrusted to root it out may, in their zeal, be tempted to bend or even break the rules. If they do so, however, they endanger the freedom of all of us." Op. at 2); a powerful invocation of the Constitution ("The notion that, by this act of clicking a button [to join a listserve / e-group], [Coreas] provided probable cause for the police to enter his private dwelling and rummage through various of his personal effects seems utterly repellent to core purposes of the Fourth Amendment." Op. at 11.); and much deservedly harsh language heaped upon Martin ("The Martin majority not only effectively dispenses with th[e] requirement [that probable cause be backed . . . by evidence particularized to the target of the search,] but substitutes for it the rule that if you simply web-join an e-group whose 'primary' purpose is the unlawful distribution of pornography, that is enough to warrant the search of your home -- even if there is no evidence that you knew this was the group's 'primary' purpose or that you actually intended to use the group for such a purpose rather than for the other, lawful purposes that it also provided. Such a rule, by focusing on the ordering of the purposes of the group, rather than the activities of the person whose home is to be searched, not only violates the First Amendment protection against guilt by association but also makes a mockery of the Fourth Amendment's focus on particularity and on protection of the privacy of the individual to be searched." Op. at 14). Also worth reading is the opinion's flailing of "Special" Agent Binney (though, shockingly, no perjury prosecution is apparently on the horizon) and its thorough exposure of the full extent his deceit -- essentially glossed over by the majority opinion in Martin. Op. at 2-7.

A simple headcount reveals that there are now 3 active judges of the Circuit who believe that the Candyman warrants are invalid (Judges Calabresi & Jacobs in Coreas, and Judge Pooler dissenting in Martin), and only 2 who would uphold the warrants (Judges Walker & Wesley, the Martin majority). En banc rehearing seems warranted, and perhaps likely, given the numbers . . . .

A Great Victory for the White Collar Bar

United States v. Kenneth Jaeggi, Docket No. 04-4543-cr (L) (2d Cir. August 17, 2005) (Op. by Winter): The private white collar bar owes an enormous debt of gratitude to Judge Winter, as well as to the fine folks at Sullivan & Cromwell (representing Jaeggi), for this astounding decision. Lawyers for well-to-do securities fraud defendants can now rest assured that they will be paid for their work from the defendant's sizable assets, even if the Government is able to prove, after securing the defendant's conviction, that those assets are the proceeds of the fraud in question. That's because this decision holds that 28 U.S.C. § 2461(c), generally authorizing criminal forfeiture as a punishment for any act for which civil forfeiture is authorized, does not authorize pretrial restraint of assets. The result, therefore, is that the indicted fraud defendant will continue to be able to spend his hard-earned bucks however he chooses, even if the indictment alleges forfeiture allegations regarding those assets. And, really, is there a better use of one's ill-begotten gains than securing the services of a fine criminal defense attorney? Of course not.

Those interested in the Court's parsing of the relevant statutes should consult the opinion. Suffice it to say that even this defense-sympathetic reader thinks that the relevant statutory language is far from decisive, and that the Government's point that "the enactment of a criminal forfeiture statute without a restraining order provision [would be] oddly incompletely and uniquely deficient" is well taken. And, of course, the fact that 5 other Circuits have come to the contrary conclusion concerning a very similarly worded statute adds further doubt to the correctness of the Court's decision.

Judge Winter's back-of-the-hand dismissal of the other Circuits' decisions -- "This fact gives us pause, albeit a short one," because "none of them has addressed the arguments presented in this case" -- is refreshing, even if rarely seen in ordinary criminal cases. The same can be said about the Court's quick rejection of the Government's claim that "it would have made no sense for Congress to enact a statute authorizing the use of criminal forfeiture but to omit a pretrial restraint provision, for which actual forfeiture might never be possible": "[T]his is a complaint that should be addressed to Congress." Op. at 13.

In any event, the law of the Circuit is now that while defendants facing RICO, drug trafficking, obscenity, and child pornography charges continue to be subject to pretrial restraint of their forfeitable assets, Op. at 9 (citing relevant statutes), defendants in cases governed by § 2461(c) -- which I believe includes all fraud defendants -- will not face this "severe remedy" ("dubbed [by the Supreme Court] as a 'nuclear weapon' of the law", Op. at 7). In cases not falling in the above categories, the law is unclear. See footnote 2 of the Op. However, if the language of the relevant forfeiture statute tracks that found in § 2461(c), then the same result should obtain -- no pretrial restraint is permitted.

A Grim Day for the Fourth Amendment: False "Candyman" Affidavit Nonetheless Sufficient to Support Search Warrant

United States v. Joseph Martin, Docket No. 04-1600-cr (L) (2d Cir. August 4, 2005) (Op. by Walker): Chills ran down this reader's spine while reading the majority opinion. If the Government can ransack one's house and papers based on such barebones evidence -- essentially, joining a listserve / e-group discussing illegal activity -- what will it not be allowed to do? Judge Pooler's spirited and thorough rebuttal of the majority's faulty analysis warms the heart somewhat; perhaps it will spur the rest of the Circuit to order en banc rehearing. Her claim that "today the majority announces a dangerous precedent" is right on the mark. At least for now, those on the NAMBLA or NORML listserve should make sure to cancel their membership a.s.a.p.!

This case arises from the infamous "Operation Candyman" investigation, in which a Government agent lied -- OK, made a false statement that clearly appears to be intentional -- about a crucial fact in his affidavit supporting the issuance of numerous search warrants throughout the country. Apparently, while some courts (including at least one S.D.N.Y. judge) have suppressed evidence resulting from these warrants, finding that the probable cause standard could not be satisifed without the false statement, the majority of courts have concluded to the contrary -- that probable cause existed even if the falsehood were excised. The Circuit agrees with the latter courts in Martin.

The essential facts are thus. Martin joined an "e-group" called "girls12-16", an off-shoot of the original Candyman e-group. (The opinion defines an "e-group" as an "internet forum through which persons with similar interests can interact by e-mail and online "chat," and by posting messages, pictures, and videos to the group's website." It thus sounds like any ol' "listserve" to this luddite). This group included the following "welcome message." It is quoted here at some length to illustrate the majority's distorted reading of it, upon which it relied heavily in upholding the search of Martin's home:

"Hi all, This group is for all those [w]ho appreciate the young female in [t]he[ir] finest form. Watching her develop and grow is like poetry in motion, to an age where she takes an interest in the joys and pleasures of sex. There is probably nothing more stimulating than watching a young teen girl discover the pleasures of the orgasm. The joys of feeling like she is actually coming into womanhood. . . . This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship (apparently not - ed.) You can share all kinds of other information as well regarding - your current model . . . [,] [w]here the best place to meet girls is . . . The choice is all yours. . . . Post videos and photographs . . . Membership is open to anyone, but you will need to post something. M[a]ybe a little bit about yourself / what your interests are (specifically), your age, location . . . and a pic or vid would be good to[o]."

Op. at 6. Joining this e-group allowed a member to access the following features of the site: a "Chats" section allowing real-time conversations with other members; a "Files" section allowing members to post images and videos, posted by others, that can be viewed or downloaded; a "Polls" section allowing members to answer survey questions; a "Links" section permitting members to post links to other sites; and a "E-mail list," allowing a member -- if he so chooses -- to receive emails sent by other members.

The agent's lie concerns this last feature. In his affidavit, "Special" Agent Binney swore that anyone who joined this e-group automatically received all emails sent by other members. He further swore that after joining this group, he received about 193 e-mails, 14 of which contained attachments of child pornography.

As later revealed, however, the statement about automatic receipt of emails was false. (For evidence that this was an intentional falsehood, see pages 8-9 of the opinion). Indeed, there is no evidence that Martin received any emails from the group.

In any event, based on these facts and the fact that Martin was listed as a member of this e-group, a search warrant was issued for his home & computer. Child pornography was found and he was indicted for possession of child pornography. The district court denied his motion to suppress and sentenced him to 27 months' imprisonment.

The Circuit affirmed, finding that probable cause existed even without the false statement. Primarily, it relied upon the highly questionable claim that "the girls12-16's welcome message unabashadly announced that its essential purpose was to trade child pornography." Op. at 14. As the majority stated, "[t]he affidavit included evidence that an occupant of Martin's house . . . was a member of the girls12-16 e-group, whose raison d'etre, or primary reason for existence, was the trading and collection of child pornography -- a wholly illegal endeavor." Op. at 16 (emphasis added). And as it further adds, "The concern that a person who innocently joins an organization with a mixed purpose might be subjected to an unnecessary and unconstitutional search is not present here because the girls12-16 e-group and its technological feature served primarily as a means for effecting illegal activity. At its core, the modus operandi of the girls12-16 website was criminal, and that is determinative in this case." Op. at 20 (emphasis in original).

This is a grossly strained reading of the group's "welcome message." Though surely a listserve filled with weirdos and pervs, nothing in that distasteful message indicates that the group's "raison d'etre" or "essential purpose" was "the trading and collecting of child pornography" (which is of course the sole illegal activity alleged). Rather, the group seems simply to be a forum for those sexually interested in teenage girls to electronically "meet" others with a similar proclivity, and to chat, fantasize, or just B-S about their perversions. And although some illegal activity surely took place within the site, there is no evidence whatsoever that "the modus operandi" or "core" of this group was "criminal". Indeed, the Agent stated that while he received 193 emails, only about 7% contained illegal content. Thus, the majority of the emails sent by members of the group did not involve any illegal activity. Moreover, no evidence was presented that messages or links posted on the site primarily concerned the trading of kiddie porn.

The majority's blithe assurance notwithstanding, this decision indeed causes grave concern that "a person who innocently joins an organization with a mixed purpose [will] be subject to an unnecessary and unconstituational search" of their hearth and home. The girls12-16 group is clear one with a "mixed purpose". While some may join it to facilitate the illegal acquisition of child porn, others may join it simply to chat or fantasize or role-play. Indeed, at least with respect to the emails sent by members, 93% of the activity on the site was entirely lawful. And what about the parent who joins the group because she wishes to learn about the behavior of those who may prey on her children?

Finally, what distinguishes this listserve joined by Martin from one sponsored by NAMBLA or by NORML? Or the U.S. Marxist-Leninist Organization? Not much, it seems.

As already noted, Judge Pooler's dissent punctures the majority's reasoning at every point. It deserves reading and notice.

Counsel's Failure to Recall Reason for Not Presenting Certain Evidence Not Ineffective When Reasons for Counsel's Decision Are Clear from the Record

Greiner v. Wells, Docket No. 04-2809-pr (2d Cir. August 8, 2005) (Op. by Wesley): This opinion, reversing the lower court's grant of habeas, contains a very thorough discussion of the relevant facts as well as the law governing ineffective assistance of counsel claims on habeas review. It breaks no new ground, however, in concluding that trial counsel's decision not to introduce certain evidence at trial constituted objectively reasonable strategy, given the obvious downsides of introducing the evidence in question, despite the fact that trial counsel, seven years later, could not recall why he ultimately decided not to introduce this evidence.

Perhaps the only point worth noting is the Court's decision to discuss counsel's subjective reasons for not introducing the evidence, even after concluding that the record amply demonstrated an objectively reasonable basis for counsel's decision. Thus, while Strickland's "performance" prong is indeed an objective one, a court evaluating an IAC claim must go beyond merely finding that counsel's conduct was objectively reasonable. That conclusion, as the Circuit explains, merely "sustains the initial presumption of effective assistance" but "does not end the matter." Op. at 25. Rather, a court "must also examine counsel's [actual] decision-making process so that if [it] discovers, for instance, that counsel's decisions resulted from incompetence, negligence, or pure serendipity, [it] might reconsider any assumption that a 'choice' made by counsel was strategic." Id.; see also Op. at 33 ("[W]here a habeas petitioner establishes that counsel's choices were not the result of a 'conscious, reasonably informed decision made by an attorney with an eye to benefitting his client,' courts may question such choices.").

In this case, the habeas petitioner demonstrated only that trial counsel (as he testified during a hearing ordered by the habeas court, seven years after the underlying trial) could not recall the reasons for his decision not to introduce the evidence. Petitioner did not show that counsel failed to present the evidence out of laziness, misunderstanding, or ignorance. And a mere failure in memory, the Circuit found, fell far short of "overcom[ing] the presumption that [counsel] rendered effective assistance, a presumption sustained by the transparent logic in avoiding a defense that might actually strengthen the prosecution's case." Op. at 33.

Mandamus Granted: Trial Judge Prohibited from Bifurcating Prior Felony Element in Felon-in-Possession Trial

United States v. Amar Amante, Docket No. 05-3067-op (2d Cir. August 9, 2005) (Op. by Walker): There is little new in this opinion, disappointing and wrong-headed though it is. It simply follows upon three bad cases in the Circuit -- United States v. Gilliam, 994 F.2d 97 (2d Cir. 1993), United States v. Belk, 346 F.3d 305 (2d Cir. 2003) (yours truly for appellant), and United States v. Chevere, 368 F.3d 120 (2d Cir. 2004) -- holding generally that, except in an "extraordinarily unusual case" (and not merely an "ordinarily unusual case"?), bifurcation of the prior felony element in a felon-in-possession prosecution under 18 USC § 922(g)(1) is error. Amante merely clarifies that such an error is a mandamus-able one. Thus, in the future, if a trial judge should order bifurcation, the Government will be able to seek and obtain a writ of mandamus from the Circuit to prevent the bifurcated trial.

Amante specifically holds that "[w]hile it is possible that bifurcation of a single-count felon-in-possession trial might be appropriate in an 'extraordinarily unusual case,' Belk, 346 F.3d at 311, such as where the facts of the prior felony would be admitted into evidence and are of such a heinous nature as to overwhelm the trial on possession, this is not such a case." Op. at 6. Thus, Amante narrows Belk's already narrow exception for properly bifurcated trials (limited to "extraordinarily unsual cases") to (1) cases in which the Government, despite the Supreme Court's decision in Old Chief, is somehow permitted to introduce the facts underlying the prior felony, and those facts are particularly "heinous" or inflammatory; and (2) cases involving multiple counts, in which the felon-in-possession count itself may be bifurcated from the trial of the other counts, see Op. at 11 n.2 (citing United States v. Jones, 16 F.3d 487, 492-93 (2d Cir. 1994)). Apparently, in every other instance, a district judge is barred from ordering bifurcation.

Make Sure You Check Out Those Old Convictions!

United States v. Jimmy Glen, Docket No. 04-2394-cr (2d Cir. August 10, 2005) (Op. by Winter): This is a great little case that serves as further reminder that counsel must always check out the details of prior convictions used to enhance a current sentence. Here, defendant pled guilty to a 21 USC § 841(b)(1)(A) charge (involving more than 50 grams of cocaine base). The Government also filed a prior felony information, alleging 2 prior drug convictions (in 1977 and 1996). The effect of these priors was a mandatory minimum life sentence on the current charge, which the district judge imposed.

The Circuit vacated the sentence on appeal, finding that the 1977 conviction was not yet "final" as required under § 841. (There were actually two 1977 convictions, but that is of no moment as neither was "final"). This was so because Glen filed timely notices of appeal from the 1977 convictions. And although he never perfected those appeals, "they have not been dismissed and are still pending." Op. at 9.

Looking to New York State law, and specifically the rules of the Appellate Division, 4th Department, the Circuit pointed out that an appellant in that court has 60 days to perfect an appeal after filing a notice of appeal. If he does not do so, then the state can move to dismiss the appeal. If the state so moves, the appellant still has the opportunity to prevent dismissal by "demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time." New York R. App. Div. 4th Dept. § 1000.13(e). Here, the state never moved to dismiss Glen's unperfected appeals.

As a result, "an avenue of direct appeal from [Glen's] 1977 convictions remain open to him." Op. at 10. First, "[w]ere the state ever to move to dismiss the appeals, appellant could seek to show a reasonable excuse for the delay; if that excuse were accepted . . . , appellant would then be permitted to perfect his appeals and have them heard." Id. Second, the Court opined that "[i]t may also be that, absent a motion to dismiss by the state, appellant could perfect his appeals at any time." Id. (citing a Fourth Department decision considering an appeal that was not perfected until 8 years after filing of notice of appeal). The 1977 convictions were therefore not final.

And because § 841 requires that the prior convictions be final before they could be used as enhancing predicates, the 1977 convictions did not qualify as such predicates. On remand, therefore, the mandatory minimum becomes 20 years rather than life (as a result of Glen's apparently final and valid 1996 conviction).

A Preserved Booker Error Will Almost Never Be Found Harmless on Appeal

United States v. Francisco Lake, Docket No. 04-3238-cr (2d Cir. August 15, 2005) (Op. by Newman): Judge Newman's monopoly in shaping Circuit law concerning appellate review of pre-Booker sentences in the wake of Booker continues. In this opinion, the Court confirms what Fagans implicitly held and what the Circuit's practice has been since that decision: Where a defendant, pre-Booker, objected to the use of mandatory Guidelines at sentencing, the result on appeal will almost inevitably be a remand for resentencing. Lake spells out what Fagans left unsaid: Remand for resentencing is required because the Government will almost never be able to meet its burden of showing that the Booker error was harmless.

Lake was sentenced to 540 months' imprisonment, a sentence neither at the bottom nor top of the applicable ranges. Since his sentencing occurred after Blakely but before Booker, he raised a Sixth Amendment objection to any enhancements based on facts not found by a jury. On appeal, he sought a resentencing pursuant to Fagans (rather than a remand for determination of whether to resentence, pursuant to Crosby) since he had preserved the Booker error.

The Court agreed with Lake and remanded for resentencing. In so doing, Judge Newman conceded that this need not occur if the "Government can sustain its burden of proving that the sentencing error was harmless." Op. at 5. He then explained, however, that this will almost never be possible:

"Once the Supreme Court fundamentally altered federal sentencing procedures by ruling in Booker that the Guidelines were no longer required to be applied, it became difficult for the Government to sustain its burden of proving that a Booker error was harmless. Although some sentences imposed under the pre-Booker regime would not have been different had the sentences been imposed under the post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge would have imposed the same sentence. We have recognized that a 'rare' case may arise where we can confidently say that a sentencing error was harmless, as occurs in circumstances where a statutory mandatory minimum prevents the sentencing judge from giving a lesser sentence after Booker than the one imposed pre-Booker."

Op. at 6-7. Apart from the example of a sentence that constitutes a statutorily required minimum, however, Lake leaves little room for a finding of harmlessness. Indeed, the district judge in Lake's case specifically explained that the 540-month sentence "is necessary for every reason that sentencing is necessary; for punishment, to incapacitate you . . ." Op. at 7. Even this statement was not sufficient to render the Booker error harmless, since (1) "the fact that a judge selects a sentence within a guideline range that the judge thought he was required to apply does not necessarily mean that the same sentence would have been imposed had the judge understood the Guidelines as a whole to be advisory"; (2) "although even before Booker, a sentencing judge was obliged to consider all the factors set forth in 18 U.S.C. § 3553(a), . . . consideration of the other section 3553(a) factors (apart from (a)(4), requiring imposition of sentence within Guidelines range) acquires renewed significance and might result in a different sentence"; and (3) "absent the strictures of the Guidelines, counsel would have had the opportunity to urge consideration of circumstances that were prohibited as grounds for departure." Op. at 7-8. Given that the same rationale can be invoked in every case involving a preserved Booker error, perhaps apart from those involving a statutorily required minimum sentence, the Fagans remedy should be be universally required.

Crawford Rule Not Applicable to Out-of-Court Statements Not Offered at Trial for Their Truth

United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered not for its truth need not satisfy the requirements of Crawford, which concerns only true hearsay (i.e., an out-of-court statement offered for the truth of the matter stated); and (2) § 844 does not violate the Commerce Clause when applied to the arson of a rented residence, in light of the Supreme Court's decision in Jones v. United States, 529 U.S. 848, 854 (2000) (explicitly re-affirming Russell v. United States, 471 U.s. 858, 859-60 & n.4 (1985) (holding that congressional power extends to regulation of rented residence)).

The essential facts are thus. Logan was indicted for conspiring with 2 fraternity brothers to burn down a rented residence. Shortly after the house burned down, Logan confessed his participation in the act to the police, though he denied knowing beforehand that the others wanted to commit arson when they broke into the house. Logan also told the police that, prior to the incident, his fellow participants had concocted an alibi that they would use after the house was burned down (a convoluted story about attending a Mets game that evening) in case of a police investigation. When the police later interviewed the 2 frat brothers, they told the alibi outlined by Logan. At Logan's trial (no others were indicted), the Government introduced the frat brothers' statements setting out the alibi to the police, apparently for the purpose of showing that they & Logan conspired to burn down the house. Logan was convicted.

The Circuit rejected Logan's claim that the introduction of the alibi statements violated his Confrontation Clause rights in light of Crawford. Indeed, Crawford itself explained that this "Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." 541 U.S. at 59 n.9. Here, the frat brothers' out-of-court statements "were not offered to prove that they had been at a Mets game on the night of the fire, but rather were offered to corroborate Logan's own statement . . . that [they] were planning to use the Mets game as an alibi." Op. at 11. There was, therefore, no Confrontation Clause violation.

A minor silver lining can be found in the opinion: The Circuit rejected the Government's alternative argument that Crawford was also not implicated because the statements in question were not "testimonial." Op. at 12. The Government claimed that the frat brothers' statements to the police were statements by co-conspirators in furtherance of the conspiracy, and that such statements are non-testimonial. There is support in Crawford for this proposition. 541 U.S. at 56 (noting that most hearsay exceptions "covered statements that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy.").

The Court agreed that the frat brothers' statements were made in furtherance of the conspiracy. However, it also found that they were "testimonial" within the meaning of Crawford. Op. at 13. As Crawford defined the term, testimonial statements "involve a declarant's knowing response to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." Id. And since the frat brothers "made their false alibi statements in the course of a police interrogation, and thus reasonably should have expected that their statements might be used in future judicial proceedings," these statements constituted testimonial ones within the meaning of Crawford. Id. The take-away is thus that even statements that are usually not considered testimonial, e.g., statements by co-conspirators in furtherance of a conspiracy, can become testimonial ones potentially falling within Crawford's reach given the correct context.

No IAC Claim Available When Counsel Acts Pursuant to Defendant's Foolish Wishes

United States v. Dennis Wellington, Docket No. 04-3198-cr (2d Cir. August 3, 2005) (Op. by Cabranes): The addage that a lawyer who represents himself has a fool for a client applies equally to a defendant who, though represented by counsel, insists that counsel abide by his every whim regarding trial strategy, regardless of how illogical or foolish. In this case, the defendant was charged with illegal reentry and, after several failed pretrial motions to dismiss the indictment, insisted on proceeding to a bench trial on stipulated facts. Counsel told the court that defendant wished to do so because of a desire to preserve certain issues for appeal without foreclosing the possibility of an acceptance-of-responsibility reduction at sentencing. Defendant executed a written waiver of his right to a jury trial, and then stipulated in writing to every element of the charged offense.

The court of course found the defendant guilty. Before sentencing, the PSR recommended denial of the acceptance reduction, to which counsel objected. Subsequently, however, counsel stated that he no longer objected to the PSR, based specifically on his client's wishes. Counsel told the court that he did not agree with the defendant's "reasons" for these wishes, but acted as defendant instructed. The court did not award the acceptance reduction.

Represented by new counsel, Wellington raised numerous issues on appeal. First, he claimed that trial counsel was ineffective for entering into a stipulated bench trial, with a view to obtaining the acceptance-of-responsibility reduction, and then waiving the right to seek an acceptance reduction at sentencing. The Court agreed that this "was an ill-advised and wholly ineffective trial strategy." Op. at 6. However, "defendant's counsel did not devise this strategy himself." Rather, he "entered the stipulation and waived defendant's right to seek an offense-level adjustment because defendant instructed him to do so." Id. at 6. This was critical, since the Supreme Court had held in Cronic that no IAC claim lies, even when counsel "entirely fails" to put on a defense at trial, where counsel's actions followed upon the defendant's specific instructions, counsel advised defendant of the probable consequences of such actions, and the defendant was competent to make such a decision. Thus, since Wellington "instructed his counsel to pursue a course of action that defendant now complains of, there was no abridgement -- constructive or otherwise -- of [his] Sixth Amendment right to effective assistance of counsel." Op. at 8.

Second, the Court rejected defendant's claim that a Rule 11 colloquy was required before the district court accepted his stipulation to each element of the charged reentry offense at the bench trial. The Court "join[ed] [its] sister circuits in recognizing that the full panoply of Rule 11 procedures are not necessary where a defendant stipulates to facts establishing guilt." Op. at 10. Rather, a district judge need only ensure "(1) that the stipulation is voluntarily made and (2) that the defendant understands the consequences of his stipulation." Op. at 11.

Some Restitution Issues for the Well-to-Do Defendant

United States v. Bernard Jaffe. Jr., Docket No. 04-1278-cr (2d Cir. August 2, 2005) (Winter, Katzmann, Raggi) (Op. by Winter): This case addresses a host of related issues concerning restitution. Jaffe pled guilty to making false statements in connection with securing a $20 million loan from a bank, and the district court ordered restitution in the full amount of the victim's loss, as required by the MVRA, 18 USC § 3663A et seq. Additionally, the district court imposed a schedule of restitution payments that, among other things, required a $1.5 million payment by September 2005 and subsequent payments of at least $150,000 each January. Jaffe objected to the schedule on numerous grounds, claiming inter alia that (1) the district court ignored his non-legal obligation to support a 43-year-old adult daughter; and (2) the schedule violated ERISA and Florida's homestead exemption law because the only way that he could meet the repayment schedule -- in particular the $1.5 million lump sum payment -- was by either liquidating ERISA-protected accounts or his $1.3 million condo in Florida.

The Circuit rejected all of these challenges. Primarily, it held that under the MVRA, which requires the court to consider the defendant's "obligations to dependents" in setting the schedule of repayment, the court need only consider "legal obligations" and not merely moral ones. Thus, the district court properly refused to consider the fact that Jaffe also financially supported an adult daughter, who suffered from depression and was in treatment for cancer, in setting the schedule. Op. at 8 ("[A] 'dependent' is someone that the defendant has a legal obligation to support.").

The Circuit also rejected Jaffe's ERISA and homestead law claims. Essentially, the Court held that because the schedule of repayment did not require the liquidation of any assets in particular, it did not intrude upon these laws. As the Court explained, the schedule "leaves the choices of assets to be tapped to appellant." Op. at 12. The Court suggests (facetiously, in this reader's opinion) that Jaffe -- convicted of lying to secure bank loans -- could somehow satisfy the payment schedule by securing "some other source of funds, such as a loan". Id.

Defendant in "Deadbeat Parents" Prosecution Cannot Collaterally Challenge Legitimacy of Underlying Child-Support Order, even on Jurisdictional Grounds

United States v. Clifford Kerley, Docket No. 04-4537-cr (2d Cir. 2005) (McLaughlin, Straub, Hall) (Op. by McLaughlin): This is a prosecution under the federal Deadbeat Parents Punishment Act, 18 U.S.C. § 228, and based on defendant's failure to comply with a child-support order issued by a New York state court. The district court granted the defendant's motion to dismiss the indictment, agreeing with Kerley that a state hearing officer did not have "subject matter jurisdiction" to enter the underlying order of support because he failed to, as apparently required by New York law, first enter a temporary order of support.

The Circuit reversed, on 2 grounds. First and foremost, the Court ruled that "defendants charged with violating the DPPA cannot collaterally challenge the subject matter jurisdiction of the state court that entered the underlying support order." Op. at 3. This ruling creates somewhat of a Circuit split, as the Seventh and Tenth Circuits have permitted such collateral challenges based on the state court's lack of personal jurisdiction. Second, the Court also ruled that, in any event, the district court misread state law and that the state hearing officer was not deprived of subject matter jurisdiction when he entered the final order of support underlying the federal prosecution without first entering a temporary one. Op. at 19-20.

Minor query: Does the Court's 2nd conclusion render its 1st merely dicta? The Court of course thinks it's the other way around -- it gives the 2nd conclusion only after explicitly pointing out that "we need not reach the question whether the Hearing Examiner did in fact lack jurisdiction" and explaining that it is doing so only "because of the importance of this issue to [the two parties]" who filed amicus briefs urging reversal (the City and State of New York). Op. at 16. But does this "ordering" bind subsequent panels -- e.g., can a subsequent panel read the opinion the other way around, with the first bit being dicta while the second bit as the holding, since either is sufficient to support the ultimate result? I assume not ...

Government Did Not Breach Plea Agreement Where Overall Circumstances Indicate that It Did Not Take Position Contrary to that Taken in Agreement

United States v. Allan F. Peters et al., Docket No. 03-1435-cr (2d Cir. July 26, 2005) (Walker, Leval, Katzmann) (Op. by Leval): This case primarily holds that so long as the Government's conduct, when looked at in light of all the circumstances, does not reasonably appear to constitute an effort to influence the sentencing court in a manner inconsistent with the plea agreement, there will be no finding of a breach. It also contains some encouraging dicta concerning the applicability of the sophisticated means enhancement where the defendant himself did not know about the use of such means by other participants in the scheme.

Here, the Circuit found no breach despite the fact that (1) the Government initially told the court erroneously that it agreed with everything in the PSR -- even though the PSR included 2 enhancements not included in the plea agreement; and (2) the Government's subsequent submissions to the court -- in response to the defendant's objections to the 2 enhancements recommended by Probation -- contained a discussion of the law governing these enhancements and included numerous citations to cases supporting application of the enhancements. The Government's conduct did not constitute a breach, the Circuit held, because (1) the Government quickly retracted its statement that it agreed with the PSR and then explicitly stated on numerous occasions that it was not advocating for the 2 enhancements, and (2) the Government had the right, even under the plea agreement, to "explain the law concerning" these enhancements so long as it did not advocate for them.

The Court did clarify, however, that it "does not mean to suggest that a government disclaimer, to the effect that it is not arguing for an adjudtment where prohibited by its agreement from doing so, will necessarily protect it from a finding that its commentary constituted an argument and thus a breach of its agreement." Op. at 6 n.2 (citing United States v. Vaval, 404 F.3d 144, 153 (2d Cir. 2005)). Rather, each case "must be carefully studied in context, and where the government's commentary reasonably appears to seek to influence the court in a manner incompatible with the agreement, we will not hesitate to find a breach, notwithstanding formal language of disclaimer." Id.

Finally, the Court suggests, but does not ultimately decide, that the 2-level enhancement for use of sophisticated means in a fraud offense (under U.S.S.G. § 2F1.1(b)(6)(C)) can be imposed only where the defendant himself personally employed sophisticated means, or else was aware of the use of such means by co-conspirators. In United States v. Lewis, 93 F.3d 1075 (2d Cir. 1996), the Circuit affirmed the imposition of a similar enhancement under the tax fraud statute (USSG § 2T1.1(b)(2)) despite the defendant's lack of knowledge as to the use of sophisticated means by others involved in the scheme. As the Court noted, however, this conclusion "rested in part on the government's vital interest in collecting taxes and the consequent need for a strong deterrent to the use of sophisticated tax fraud schemes which would make detection difficult and thus interfere with the process of tax collection." Op. at 11. Such considerations, however, "have no application to a Guideline covering the use of sophisticated means in an ordinary fraud unrelated to the effective functioning of government." Id. The Court thus "wonder[ed] whether our Circuit would adhere to the full breadth of the proposition asserted in Lewis, especially as applied to a different Guideline unrelated to the collection of taxes, if confronted with a minor participant who had neither awareness nor notice of the use of sophisticated means by others in committing the offense." Id.

The ultimate question did not need to be answered in this case, however, because there was no dispute that defendant Peters knew full well that sophisticated means were being used to conceal the scheme.