Monday, October 31, 2005

Welcome to BOP Land, Where "54 Days" Does Not Mean 54 Days

Eliot S. Sash v. Michael Zenk, Docket No. 04-6206-pr (2d Cir. Oct. 26, 2005) (Sotomayor, Wesley, Brieant (by designation)): In this case, brought pursuant to 28 U.S.C. § 2241 by a prisoner in BOP custody and litigated by David Lewis of this Office, the Circuit upholds as "reasonable" the BOP's odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a "prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment." While Sash reads this statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP reads the statute to mean that Sash should receive up to "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). The tangible difference in Sash's case (he received a 27-month sentence) was he was entitled to 121 days' good-conduct time under his interpretation but only 105 days under the BOP's interpretation.

The Court concluded that § 3624(b) was ambiguous, but also that the rule of lenity did not apply because the "the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed." Op. at 4. Rather, traditional Chevron deference applied. And because the BOP's interpretation was a "reasonable" one, the Court must defer to its reading.

[A note about a typographical error. Judge Sotomayor writes: "The statutory ambiguity of § 3624(b) does result in any lack of notice to potential violators of the law of the scope of the punishment that awaited them, because the award or withholding of credit under § 3624(b) is not part of that punishment." Op. at 5. We are quite certain that the Judge intended to insert the word "not" between the words "does result".]

Thursday, October 27, 2005

Judgment of Acquittal in Securities Fraud Case Affirmed

United States v. John J. Cassese, Docket No. 03-1710 (2d Cir. Oct. 24, 2005) (Calabresi, Parker, Raggi): Oh what it must be like to be John Cassese -- lucky enough to draw Judge Sweet as his trial judge, and rich enough (and smart enough) to hire a former star of the SDNY USAO as his defense attorney. If we were he, we would spend the bulk of our next paycheck on the SuperLotto!

Cassesse was prosecuted for securities fraud in connection with his purchase, based on insider information, of the stock of a company two days before the announcement of a tender offer. His sale of the stock, made upon the announcement of the tender offer, resulted in a net profit of $149,000. Not bad for two days' "work"!

The jury returned a guilty verdict, but Judge Sweet granted the defendant's Rule 29 motion for judgment of acquittal. The Sweetest Judge of the S.D.N.Y. found that no reasonable juror could have concluded that Cassesse knew that his conduct was unlawful. The Circuit, in an opinion by Judge Parker, affirms. Judge Raggi dissents.

No legal ground is broken, and those interested in the details of the necessarily fact-specific opinion can consult it on their own. Two points are worth noting, however:

1. Judge Parker writes: "Following a jury verdict of guilty, we uphold a district court's judgment of acquittal on grounds of insufficient evidence if we determine that 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Op. at 9 (emphasis in original). Oops. We are quite certain the Judge meant that a guilty verdict will be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

2. Relatedly, given the oh-so-deferential Jackson standard, one wonders how the post-argument conference among these judges proceeded. Since one of the three believed (to paraphrase) that it was reasonable to convict Cassesse, and since that Judge is not irrational, isn't that disagreement itself proof enough that "any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt"? And if Judge Raggi's disagreement isn't sufficient to affirm the guilty verdict, does it then follows from Judge Parker's opinion that Judge Raggi is irrational?

Friday, October 21, 2005

IAC Claim Rejected, and Federal Drug Conspiracy Statutes Apply Extraterritorially

United States v. Shlomo Cohen, Docket No. 04-0983-cr (2d Cir. Oct. 20, 2005) (Meskill, Cabranes, Nevas (by designation)): The Court principally rejects an IAC claim, following Cohen's conviction for conspiring to import ectasy from Belgium and to distribute it in the United States, based on counsel's failure to (1) object to the prosecutor's off-hand reference, during summations, to the existence of unknown conspirators ("other people overseas") whose existence may or may not have been supported by the evidence, and (2) object to the court's charge, in which it may or may not have told the jury that a co-defendant was an actual co-conspirator rather than merely an alleged one. The Court found no error on either point, and thus no error in counsel's failure to object. Additionally, given that "the evidence of defendant's conspiracy with [a co-defendant who had pleaded guilty] was overwhelming -- a point that defendant's appellate counsel effectively conceded at oral argument" -- Cohen could not satisfy the prejudice prong of Strickland.

The sole point of note is the Court's response to a casual argument made in a footnote of Cohen's appellate brief, in which he claimed that "there 'may' be 'Due Process Clause, other Constitutional, or international law limitations on what Congress can make a crime regarding conduct outside the territorial jurisdiction of the United States.'" Op. at 6. Following the rulings of all the Circuits that have considered this issue, the Court rejected this "implied argument" and held that "21 U.S.C. §§ 846 and 963 may [] be applied extraterritorially." Op. at 7.

Thursday, October 20, 2005

Section 5G1.2 of Guidelines No Longer Mandatory

United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the "procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case," i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, "either the length of time to be served on each count or which portion of the sentence of a count was to run consecutively to the other." Op. at 8. This was error.

Under Section 5G1.2(c), the "formal sentence" should have been imposed as follows: 240 months on count 1 and 240 months on count 2, 120 months of which to run consecutively to the 240-month sentence imposed on count 1, with the remaining 120 months to run concurrently with the count 1 sentence. See, e.g., United States v. Fuller, 332 F.3d 60, 68 (2d Cir. 2003). In light of Booker, however, the Circuit recognized that Section 5G1.2 was no longer mandatory. A remand was nonetheless required, since the judge had to indicate the specific sentence she intended to impose on each count, given that the total sentence of 360 months exceeded the 240-month maximum on each count. Additionally, the court should consider on remand whether she would have imposed the same sentence in light of Booker and the Section 3553(a) factors.

Even if the judge determines on remand that the 360-month sentence remains appropriate, therefore, she need not follow Section 5G1.2's detailed procedures in imposing sentence. Thus, she could simply impose a sentence of 240 months on count 1 and a sentence of 120 months on count two, to run consecutively to the sentence imposed on count 2.

Tuesday, October 18, 2005

Counsel's Failure to Consult with or Call Expert Medical and Psychiatric Witnesses Requires Vacatur of Defendant's Child Molestation Conviction

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution's so-called experts. In a classic "he said, she said" case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel's complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant's conviction even under AEDPA's highly deferential standards.

The lengthy, fact-specific opinion breaks no new ground, principally following the Court's earlier decisions in Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), and Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), on the salient points. (Though the Court's blistering critique of trial counsel's performance, as well as the trial judge's affidavit submitted in connection with the habeas petition, is quite enjoyable.). The opinion is worth reading, if only to learn what not to do when representing a client on such charges.

Requiring Courthouse Visitors to Show Photo ID as Condition for Entry Implicates Sixth Amendment Public Trial Concerns

United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith's trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before they would be allowed to enter. Those without photo IDs (or refused to show IDs) would be denied entry. This was done because the "National Alert Level" (set by DHS) at that time was 3 (that's "yellow" to you and me), and the Marshals had a policy (adopted after 9/11/01) of requiring presentation of a photo ID as a condition for entry whenever the alert level was 3 or above (4 is orange and 5 is the dreaded red). The policy's stated justification is that "someone who is forced to identify themselves is less likely to pose a threat than someone who is allowed to walk into the building without any [ID] at all." Op. at 4-5.

When defense counsel learned of the policy, he moved for a mistrial on the ground that Smith's Sixth Amendment right to a public trial had been violated. He submitted an affidavit claiming that "upon information and belief, . . . members of Smith's family, members of counsel's investigative staff, and members of the general public had been prevented from attending his jury trial as a result of the photo identification policy." Op. at 3. The trial court denied the motion, concluding that the Sixth Amendment was not even implicated, given that "the district court itself had not denied anyone courtroom access." Op. at 6.

The Circuit affirmed Smith's conviction, but disagreed with the trial court's odd analysis of the Sixth Amendment question. Rather, any "measure that limit[s] the public's access to federal buildings with courtrooms where public trials may be occurring implicate[s] Sixth Amendment concerns," regardless of who implements the measure. Op. at 6-7. Applying the familiar four-part test of Waller v. Georgia, 467 U.S. 39, 45 (1984), however, the Court concluded that Smith's public trial right was not violated by the "partial closure" caused by the Marshals' photo ID policy. Op. at 8-12.

The Circuit nonetheless criticized the Marshals Service's unilateral decision to implement the photo ID policy without first consulting the district court. Op. at 14-15. "Going forward," the Court cautioned, "any such steps must be coordinated with, and approved by the courts." Op. at 14. "Control [of courthouse access measures] by the courts is essential," the Court explained, "because the judiciary is uniquely attuned to the delicate balance between defendants' Sixth Amendment rights to public trial, the public and press's First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms." Id. Thus, the Marshals Service must "consult with the courts before implementing general security measures that significantly affect court access." Op. at 15.

Monday, October 17, 2005

Remand for Resentencing Required even where Sentencing Judge, Acting Post-Blakely but Pre-Booker, Announced Alternative "Non-Guidelines" Sentence

United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, that she would impose the same sentence even if the Guidelines were subsequently held unconstitutional by the Supreme Court. There was dicta in Crosby to this precise effect, of course, see 397 F.3d at 118, and the Circuit simply adopts this dicta as its ruling in this opinion. Op. at 9. The Booker error was not harmless despite the judge's pronouncement of the "alternative sentence," the Court explained, because such an "alternative sentence is not necesssarily the same one that the judge would have imposed in compliance with the duty to consider all of the factors listed in section 3553(a)," nor is it "necessarily the same one that the judge would have imposed after presentation by the Government of aggravating circumstances or by the defendant of mitigating circumstances that existed at the time but were not available for consideration under the mandatory Guidelines regime." Op. at 8-9 (quoting Crosby, 397 F.3d at 118).

The Court also held, in a matter of first impression in the Circuit, that a district judge's failure to abide by § 3553(f)(2)'s requirement to provide a written statement of its reasons for departing from the Guidelines range (here, the judge upwardly departed) does not automatically warrant remand and resentencing. Rather, following the plain language of the statute as well as decisions in three other circuits, the Court concluded that "where a reviewing court determines that a departure is neither 'too high' nor 'too low' within the meaning of 18 U.S.C. § 3742(f)(2), a district court's failure to include in the written judgment an explanation for its departure does not provide an independent basis for remand." Op. at 19-20. (No harm no foul, in short.) The Court cautioned, however, that the "better practice is for the district court to record in its written order of judgment an explanation for all Guidelines departures." Op. at 20.

Trial Procedure Permitting Interim Summations, after Testimony of Each Witness, Constitutes Structural Error

United States v. Samuel Yakobowicz, Docket No. 04-0201-cr (2d Cir. October 14, 2005) (Winter, Sotomayor, Parker): Sometimes those visiting judges are more trouble than they're worth. Here, a visiting judge from the Northern District of Ohio, presiding over the defendant's E.D.N.Y. trial for filing false tax returns, sua sponte adopted a trial procedure we've never seen in a criminal case -- allowing the parties to make summations after the testimony of each witness. The Circuit ruled that even assuming that such a procedure is permissible in a particularly lengthy or complicated case, it was not warranted in this typical one. The Court also ruled, over Judge Sotomayor's dissent, that the court's error of allowing these "interim summations" constitutes a structural error requiring automatic reversal without harmless-error analysis.

The essential facts are thus. Yakobowicz was prosecuted for filing false excise tax returns and impeding the administration of tax laws. Before trial and over defense counsel's objections, the trial judge announced that he would allow the parties to "make a short statement to the jury" after the testimony of each witness. Op. at 4. Although the judge explained that these "comments [would be] limited to the statements of that witness and how that testimony fits in the overall scheme of the case," the reality turned out to be much different. Id. When given the opportunity, the prosecutor did not merely summarize the testimony of the witness and how it fit into the Government's case. Rather, as the Circuit described, "the Government used the interim procedure . . . to argue and reargue its theory of the case," and "[a]ny distinction between the content of the Government's interim summations and its final summation was all but invisible."

In total, the Goverment called 26 witnesses and delivered 10 "interim summations" over the course of 4 1/2 days of testimony. The defendant called no witnesses and was convicted.

On appeal, the Circuit, by Judge Winter, concluded that the trial judge abused his discretion in adopting this novel procedure (though, apparently, the same judge routinely uses it back home). Among other things, this procedure is (1) inconsistent with Rule 29.1 of the Federal Rules of Criminal Procedure (which contemplates that closing arguments are to be held after the close of evidence); (2) violates the traditional rule requiring jurors not to form their opinions before the close of evidence and deliberations; (3) gives an unfair advantage to the prosecution (since "the prosecution almost always calls more witnesses than the defense, which not uncommonly calls none," and thus allowing the prosecution to give summations after each witness "enable[s] [it] to argue repeatedly the merits of its theory of the case"); and (4) most importantly, undermines the presumption of innocence (since this procedure -- effectively requiring the defendant to say something before the close of the Government's case -- undercuts the defendant's right "to remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion," and to "see the prosecution's whole case before deciding on a defense.") . Op. at 10-11, 15-17.

Judge Winter allowed that "interim summations in some form have been permitted in lengthy and/or complex civil trials." Op. at 12 (emphasis added). However, there are many differences between civil trials and criminal trials. See Op. at 14-16. Moreover, even assuming that interim summations are permissible in some criminal trials, they should be used only "based on findings that the case at hand differs from the garden variety of cases." Op. at 13. And "[t]hese differences exist, if at all, in the length of a trial or the complexity of the issues, and most commonly in a combination of the two." Id. The instant case "involved no length, no complexity, and [thus] no need." Id. Finally, the Court cautioned that even in the rare case in which interim summations are appropriate, "[t]he model for such procedures . . . is to be found in opening statements which, as noted, are generally limited to statements of expectations as to the evidence rather than arguments." Op. at 20.

The Court further concluded that "[a]llowing interim summations in this case was a structural error requring reversal" without consideration of harmlessness, since the "entire conduct of the trial from beginning to end is obviously affected by a procedure that systematically allowed argumentative summations after each witness without any showing of particularized need based on length of the trial or complexity of the issues, without authorization in a rule of criminal procedure, and without any attempt to limit the argumentative aspects of the interim summations." Op. at 19.The problem, the Court explained, was "not that any particular interim summation was unduly preducial." Rather, it is that "the repetitive and cumulative summations altered and undermined the defense's use of the presumption of innocence as a defense and had indeterminable effects on defense strategy and tactics." Op. at 19. Thus, the Court vacated Yakobowicz's conviction despite his failure to show specifically how the interim summations given by the prosecution prejudiced him.

Judge Sotomayor dissented solely on this point, arguing that the error here constitutes a typical "trial error" subject to harmless error analysis. And because the defendant made no attempt to show how his defense was prejudiced by the procedure, Judge Sotomayor would have affirmed the conviction.

Sunday, October 16, 2005

They Sure Didn't Make Video Games Like This When We Were Kids!

Apologies for this diversion, which has nothing to do with criminal law in the Second Circuit. But here's a great gift idea for that rare teen (or the teen in all of us) with aspirations to become a member of This Great Profession. (Click HERE).

Thursday, October 13, 2005

Time to Clean Up the Candyman Mess!

United States v. Coreas, Docket No. 03-1790-cr (2d Cir. Oct. 12, 2005) (Jacobs, Calabresi, Rakoff) (per curiam): Yesterday, the Circuit denied defendant Coreas's petition for rehearing, thus adding to the confusion surrounding the legality of the Candyman search warrants. To recap the relevant events, in chronological order, for those not keeping score at home:

(1st) In United States v. Martin (click here for our discussion), the majority upheld (over a dissent by Judge Pooler) a search warrant based primarily on the defendant's membership in the "girls12-16" e-group.

(2nd) In United States v. Coreas, (click here for our discussion), the Court was confronted with essentially the same affidavit at issue in Martin (containing the same false statements by the same agent) but concerning the Candyman e-group rather than the girls12-16 e-group. The panel found the differences between the two groups to be immaterial and concluded, contrary to Martin, that the search warrant was not supported by probable cause. The panel nonetheless affirmed Coreas's conviction, given the earlier ruling in Martin and the well-established rule that a later panel is bound by the decision of an earlier panel.

(3rd) On October 4th, the majority in Martin denied the defendant's petition for rehearing. (click here for our discussion). Among other things, the majority (once again over a dissent by Judge Pooler) explained that the Coreas panel erred in believing that no material difference existed between the Candyman e-group and the girls12-16 e-group.

(4th) Finally, on October 12th, the panel in Coreas denied the defendant's petition for rehearing, once again concluding that it was bound by the original Martin decision (with which it once again disagrees on the substantive question) and disagreeing with that majority's opinion, found in its own denial of rehearing, that the two e-groups were distinguishable.

Oy - what a mess. One can hardly imagine a more suitable circumstance for en banc rehearing.

Wednesday, October 12, 2005

Counsel Erred in Failing to Inform Client that Statements Made during Proffers Could Be Used Against Him, but Error Did Not Prejudice Client

Davis v. Greiner, Docket No. 04-4087-pr (2d Cir. Oct. 11, 2005) (Calabresi, Cabranes, Pooler): The Circuit affirms the district court's denial of Davis's § 2254 petition, based on a Sixth Amendment IAC claim that Davis's attorney failed to warn him that statements he made during proffer sessions with prosecutors could be used against him at trial if the plea deal collapsed. Although the Court agreed with Davis that his attorney's conduct fell below professional norms, it upheld (with some reservations) the district court's largely factual finding that Strickland's prejudice prong was not satisfied because Davis would have participated in the proffer sessions even if his lawyer had told him that his statements could eventually be used against him.

The essential facts are sad and simple. Sixteen-year-old Davis and his half-brother were recruited by their foster sister to attack the sister's ex-boyfriend, who died as a result. All three were arrested and charged with second degree murder, which carries a 25-year to life sentence.

The prosecution approached Davis's lawyer and offered Davis a chance to plead guilty to manslaughter and to be adjudicated as a youthful offender. In exchange, Davis would have to meet with the prosecution and agree to testify against his siblings.

Counsel told Davis the terms of the deal and encouraged him to take it. Counsel did not tell Davis, however, that any statements he made during meetings with prosecutors could be used against him at trial if the plea deal fell through.

Davis followed his attorney's advice. He met with prosecutors on several occasions and divulged his role in the offense. Davis then pled guilty to manslaughter.

By this time, Davis's half-brother had pled guilty. However, his foster sister went to trial. The prosecution put Davis on the stand to testify against her. Davis testified for 45 minutes but then refused to continue. He later explained that he could not continue because he saw his foster sister crying during his testimony.

Davis withdrew from the plea agreement, and the court allowed him to withdraw his guilty plea as well. At his trial for second degree murder and over objection, the prosecution introduced Davis's proffer statements against him. Davis was convicted and sentenced to 25 years to life.

After exhausting his state appeals, Davis filed a § 2254 petition in the E.D.N.Y, raising an IAC claim based on counsel's failure to inform him that statements made during proffers could be used against him at trial. The district court denied the petition, finding that Davis failed to meet either the performance or the prejudice prong of the Strickland test. The Circuit affirms.

The most notable portion of the opinion concerns its disagreement with the district court -- the Circuit's conclusion that counsel's performance fell below professional norms. As the Court saw it, given Davis's age (16), inexperience with the criminal justice system, and obvious attachment to his siblings, counsel should have made sure that his client understood not only the benefits of cooperation, but also its potential pitfalls -- including the consequences that may follow if Davis's effort to cooperate failed. The Court explained:

"Counsel failed to fulfill his professional duty to assist Davis in making an informed decision [about whether to plead or go to trial] because he neglected to apprise Davis of a crucial aspect of the agreement -- that anything Davis said during the proffer session[s] could be used against him if he did not satisfy all of the conditions of the plea offer . . . . We consider this to be a crucial aspect of the plea bargain, in part, because it essentially constituted a waiver of Davis's right against self-incrimination -- an important constitutional protection."

Op. at 14; see also id. at 15 ("By failing to warn Davis of this crucial aspect of the plea offer, Nash deprived Davis of the ability to make a fully informed decision for himself.").

Ultimately, however, the Court upheld the district court's denial of the writ because it could not conclude that the lower court's primarily factual determination that Davis would have participated in the proffer sessions anyway (i.e., even if he had been informed that his statements could later be used against him) was clearly erroneous. The district court conducted an evidentiary hearing at which several participants, including Davis, testified. And while Davis claimed that he would not have met with prosecutors had he been properly advised by counsel, the district court rejected this as "purely 'self-serving, post-conviction testimony.'" Op. at 17. It thus concluded that Davis failed to satisfy the prejudice component of Strickland.

The Circuit admittedly "harbor[ed] some doubts about this factual finding." Op. at 17. However, because "[o]ur doubts . . . are not sufficient to permit us to conclude that the district court's factual determination was clearly erroneous," given the "highly deferential" nature of appellate review over that court's factual findings," the decision below was upheld. Op. at 17-18.

Thursday, October 06, 2005

Refusal to Depart for Diminished Capacity Upheld

United States v. Felix Valdez, Docket No. 04-3811-cr (2d Cir. Oct. 5, 2005) (Walker, Cardamone, Parker): There is little of interest in this largely fact-specific opinion, discussing the well-established contours of the diminished capacity departure under U.S.S.G. § 5K2.13. Valdez argues on appeal that the district court (Judge Duffy) "incorrectly applied the Guidelines by using the wrong legal standard when it denied a downward departure for dimished capacity." Op. at 10. After reviewing the record of the sentencing proceeding, the Circuit disagrees and concludes that Judge Duffy, despite some questionable grumblings to the contrary, understood the nature of his departure authority under § 5K2.13.

The Court remands for a Crosby proceeding, however, since the sentencing occurred before Booker. (At which proceeding, one assumes, Valdez will simply convert his unsuccessful pitch for a § 5K2.13 departure into an equally unsuccessful argument for a below-the-Guidelines sentence pursuant to Booker and the Section 3553(a) factors. But one can always hope; the good Judge may enjoy a fine breakfast that morning and deliver rare leniency from the bench that afternoon).

The only legal issue of note is the Court's conclusion that "a district court is not required to accept evidence concerning a defendant's mental and emotional states offered by a defendant's own expert, but rather may rely on its own assessment of defendant's mental state based on its own assessment of the defendant's mental state based upon its observations, even when they conflict with those of the expert." Op. at 15. Judge Duffy thus did not err as a matter of law when he concluded, despite a psychiatrist's report & testimony that Valdez had an IQ of 55 and a host of other mental ailments, that Valdez did not suffer from a "significantly reduced mental capacity" within the meaning of § 5K2.13. The judge's factual finding on this point was also not clearly erroneous, the Circuit concluded, supported as it was by Judge Duffy's observations of Valdez's behavior in court as well as by the nature of the offense of conviction (a relatively sophisticated ruse ripping off the phone company).

Tuesday, October 04, 2005

Rehearing Denied in Candyman Case

United States v. Martin, Docket No. 04-1600-cr (L) (Petition for Rehearing Denied, Oct. 3, 2005) (Walker & Wesley) (Pooler, dissenting): In a published decision, Chief Judge Walker sticks to his guns and denies the defendant's petition for rehearing in this controversial case involving a Fourth Amendment challenge to a search warrant issued in connection with the infamous "Candyman" investigation. (Click here for the original opinion by the Chief, and click here for our criticism of it). Judge Pooler again dissents, as she did originally. Given this continuing disagreement, and given in addition the directly contrary views of the panel in United States v. Coreas (click here for our over-the-top praise of Judge Rakoff's critique of the Martin majority opinion), we suggest once more that en banc rehearing is appropriate.

We add only one additional point in this post, concerning the majority's continuing insistance that, somehow, the "welcome message" to the "girls12-16" E-group / chatroom confirmed that the "primary purpose" of the group was "to facilitate the generation, inventory, and exchange of child pornography." Op. at 6. Because the majority admits that its peculiar reading of the welcome message constitutes "an integral component of our probable cause determination," and because of our (and Judge Pooler's) continuing disagreement with the majority's assessment that the welcome message "unabashedly announced that the group's essential purpose was to trade child pornography," id., we will let the reader decide. Here is the entirety of the E-group's "welcome message" (Warning: Not for the faint-of-spelling, those sensitive to poor writing and grammar, or anyone offended by very slimy- / sleazy-talk):

"Hi all, This group is for all those ho appreciate the young female in here finest form. Watching her develop and grow is like poetry in motioon, 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. It's an age where they have no preconditions about anything, just pure opennes. What a joy to be a part of that wonderful experience and to watch the development of this perfect form. 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 (Ed.: well, maybe not) . You can share all kinds of other information as well regarding - your current model: if you are a photographer. Where the best place to meet gitls is. The difficulties you experience in your quest. The best way to chat up. Good places to pick girls up. Girls you would like to share with others. The choice is all yours. Welcome home! Post videos and photographs . . . and how about your true life experiences with them so that other viewers can paint a mental picture andin some way share the experience with you. You could connect with others from the same country as you and get together sociall if you wish. The choice is all yours. How about a model resource for photographers? It's all up to you and is only limited by your own imagination. Membership is open to anyone, but you will need to post something. Mybe a little bit about yourself / what your interests are (specifically), your age, location . . . and a pic or vid would be good to. By doig this other members (or potential members) with the same interest may then contact you if you wish them to."

Op. at 3-4 fn.1. As noted, the majority reads this passage as "unabashedly announc[ing] that the group's essential purpose was to trade child pornography," Op. at 6, and upholds the search of Martin's home and computer based principally on this reading.

We will let the reader judge for herself, but we simply do not read the same words as conveying the same "primary purpose" as the majority does. We agree with Judge Pooler's reading, as well as the other points she makes in the following passage from the dissent:

"It is far from clear, based on either the welcome message or other aspects of the group, that the "primary purpose" of girls12-16 was to trade illegal visual depictions. Defining an organization's "primary purpose" is difficult given that any given member may understand that purpose differently, and is particularly difficult in this case because of the unstructured nature of E-groups. The welcome message of girls12-16 actually emphasizes many of the legal functions of the group. It suggests, among other things, that the group be used to "share experiences with others, share your views and opinions quite freely without censorship," "connect with others ... and get together sociall [sic]." While it also suggests posting pictures or video, there is no way to know whether this was intended to include child pornography, or simply child erotica, which while distasteful, is not illegal. In fact, child erotica constituted almost eighty five percent of the pictures emailed to Agent Binney while he was a member of the group, making it far more prevalent on the site than illegal child pornography. Berglas Aff. at 24.*7 The mixed uses described by the welcome message are confirmed by the fact that a number of legal and constitutionally protected activities could and did take place within the E-group. The group supported surveys, chatting, and textual postings. Berglas Aff. at 19. As discussed above, many of the pictures posted on the site were child erotica, not child pornography. Since child pornography was contained in less than eight percent of the emails sent to members of girls12-16, exchanging child pornography can hardly be considered the primary purpose of the group. The majority argues that the text based emails, which made up the majority of the emails, were merely a means to alert users that new pictures had been posted, majority op. at 8-9, but, even considering only the pictures that were emailed to users, the vast majority were legal child erotica, not illegal child pornography. Berglas Aff. at 24. It is therefore stretching the facts to conclude that the primary purpose of the group was to exchange illegal visual depictions. Despite this, the majority fails to even acknowledge the legal uses of girls12-16 and the very narrow nature of the crime at issue here."

Op. at 16-17 (emphases added). Kudos again to Judge Pooler for sticking to her guns and sticking up for the Fourth Amendment even when it means being on the side of a very distasteful group of people.

Crawford Error Found Not Harmless!

United States v. Rodriguez et al., Docket No. 03-1639 (2d Cir. Oct. 3, 2005) (Calabresi, Pooler, Parker): How does that line go -- "Oh what a tangled web we weave, when we first practice to deceive"? Here, the defendants' "practice to deceive" -- a rather inspired scheme to rip off a drug dealer (who turned out to be an actual, undercover DEA agent posing as a drug dealer) by pretending to be DEA agents themselves -- led not only to a tangled web, but also to a federal indictment for conspiracy to commit a Hobbs Act robbery. The defense at trial was that although the defendants conspired to take drugs from the (fake) drug dealer by trickery (i.e., the ruse of being DEA agents "confiscating" the dealer's drugs), they did not conspire to take the drugs by force (an essential element of the Hobbs Act robbery charge).

All 4 defendants were convicted at trial, and 3 complained on appeal that the trial court's admission of a post-arrest statement by the 4th defendant -- the sole piece of direct evidence indicating that the conspirators may have intended to use force, rather than mere trickery, to obtain their goal -- violated their Confrontation Clause rights in light of Crawford. The Government conceded the Crawford error, but argued that the error was harmless. The Circuit disagreed, finding that the error was not harmless as to all 3, and ordering new trials for 2 (the other defendant did even better -- the Court ruled that without considering the Crawford-barred hearsay, the evidence was insufficient to sustain the conviction, and thus dismissed the charge against this defendant).

The opinion is well written but breaks no new legal ground. Those interested in harmless error analysis as applied to a Crawford error in particular may find it useful. The opinion also cleanly illustrates the difference between harmless error analysis and sufficiency-of-the-evidence analysis, as it concludes with respect to 2 defendants that although the Crawford error was not harmless (thus warranting a new trial), the evidence apart from the improperly admitted hearsay statement was sufficient to sustain their convictions. In any event, it is always refreshing to see the Court actually impose a remedy for a Crawford violation.