Monday, November 28, 2005

The Digital Deadline Is Fast Approaching

Today, the Circuit posted a reminder that new Local Rules 25 and 32(a) will be going into effect this Thursday, December 1st. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies of the brief already required. Rule 32 also requires counsel to submit a certification, both in writing (to be filed with the paper copies of the brief) and electronically (in PDF format, along with the PDF version of the brief), that the brief has been scanned for viruses and that it is virus free. A sample "Anti-Virus Certification" can be found on the Court's website.

New Rule 25 additionally requires that for all papers filed with the Court, including briefs, motions, letters, and appendices, counsel must submit in addition an unbound copy of the same. (This is intended to facilitate the Court's effort to scan these documents, if it so desires). The only exception to this rule is that counsel need not submit an unbound paper version of a brief that has been submitted electronically, in PDF format, pursuant to new Rule 32.

We applaud the Circuit for finally taking this step, despite the initial confusion that is sure to ensue. Once implemented, we presume that litigants will be able to view and download briefs and other documents electronically, simply by accessing the docket sheet for a particular appeal. Though we too regret the additional work involved, especially during the transition period, the end result will hopefully be a better system for all.

Sunday, November 27, 2005

Year-Long Flight from Arrest, even when Coupled with Use of Alias, Not Sufficient to Justify Obstruction Enhancement

United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant's flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. See U.S.S.G. § 3C1.1 comment. (n.5). Moreover, the enhancement is not automatically triggered even when flight is coupled by the defendant's use of aliases. Rather, the enhancement is warranted only where the Government shows, additionally, that the defendant engaged in conduct that "actually resulted in a significant hindrance to the investigation or prosecution of the instant offense." Id. § 3C1.1 comment. (n.5(a)). Where a lengthy delay in arrest or the expenditure of significant resources by law enforcement cannot be attributed to the defendant's actions, the enhancement is not appropriate.

The essential facts are such. Acting on the complainant's claim that Bliss sexually molested her numerous times, police executed a search warrant at Bliss's mother's home, where he resided. Bliss was not there, but the police seized videotapes and other evidence of his guilt. When Bliss arrived home the next day, his mother informed him of what had occurred. Bliss then borrowed his mother's car, drove it to Hartford, rented a car under his own name, and drove that car to Los Angeles. He then obtained a job in L.A. under his own name, even filing a W-2 form under that name. He eventually used an alias, however, convincing his employer to pay him under the assumed name.

Bliss was not arrested until one year later. The reasons for the delay are not clear. At sentencing, the Government showed only that after Bliss's photo appeared on the TV program "America's Most Wanted," it expended significant resources tracking down false leads. The Government did not show that this expenditure was attributed to Bliss's flight or use of an alias.

Under these facts, the Circuit held that the obstruction enhancement could not be applied. First, Application Note 5 specifically exempts "avoiding or fleeing from arrest" as conduct triggering the enhancement. Second, since giving a false name to law enforcement agents upon arrest is also exempted, id. § 3C1.1 comment. (n.5(a) & (b)), Bliss's use of an alias during his flight cannot, in and of itself, warrant the enhancement. And while a defendant's flight "due to its duration or acts occurring in the course thereof, [may] ripen[] into a willful attempt to impede [] the administration of justice," United States v. Stroud, 893 F.2d 504, 508 (2d Cir. 1990), the Government must still show that (1) significant resources were expended, and that (2) this expenditure resulted from the defendant's conduct in avoiding arrest. Op. 16-17. "There must be some showing," the Court held, "that the defendant's obstructive conduct resulted in the delay in his apprehension." Op. at 20 (emphasis in original).

Here, the Government failed to show that Bliss's "use of an alias 'actually resulted in a significant hinderance to the investigation or prosecution of the instant offense." Op. at 18-19 (quoting U.S.S.G. § 3C1.1 comment. (n.5(a)). As noted, the "bulk of [the Government's] resources were spent pursuing false leads provided by 'America's Most Wanted' viewers -- not following Bliss on a wild goose chase of his own making." Op. at 20. Without a showing that Bliss's "use of an alias actually prejudiced the investigation," the obstruction enhancement was not warranted. Op. at 21.

Friday, November 18, 2005

En Banc Rehearing Denied in Candyman Cases

To our disappointment and surprise, the Circuit today declined to grant en banc rehearing in the two "Candyman" cases. See here and here for our discussions of Martin, and here and here for our discussions of Coreas. Two opinions were filed in connection with the denial of en banc rehearing -- one by Judge Wesley concurring in the denial, and the other by Judge Pooler dissenting in the denial.

We have already stated our views of these cases, and will add no further words of our own -- other than that we agree with Judge Pooler's final sentence: "I urge the defense attorneys in these cases to seek certiorari, and, in the meantime, I caution the residents of New York, Connecticut, and Vermont to be careful which websites they visit because a few clicks of the mouse could subject their homes to search." Op. 7.

Thursday, November 17, 2005

The Federal Consequences of a Conditional Discharge Disposition in State Court

Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit's decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also discuss some practice pointers for both state and federal defense attorneys confronted with the conditional discharge issue in light of Ramirez. A must-read!

United States v. Raoul Ramirez, 421 F.3d 159 (2d Cir. 2005): State practitioners regularly seek conditional discharge sentences in New York criminal/city/village/town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. Conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New York city, town and village court dockets, and are regularly accepted as a way to quickly resolve a case and to avoid incarceration. A conditional discharge sentence is one of the most lenient sentences permissible under New York law.

Statistical evidence confirms that conditional discharge sentences are given in the overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000 in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include the greater number of defendants who received conditional discharge sentences for violation/petty offenses. Compare these numbers to those receiving probation - less than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000 and 2001 at (last accessed Nov. 15, 2005).

Practioners should beware of taking them any more, however. For clients who may one day end up in federal court, Ramirez makes the one year conditional discharge for violation offenses count for federal criminal history purposes under USSG §4A1.2(c)(1)(A).

Petty Offense Sentences Are Presumptively Not Counted under
USSG §4A1.2(c)(1)

USSG §4A1.2(c)(1) excludes the scoring of criminal history points for the fifteen listed prior petty offense convictions, and offenses "similar to them," unless:

"(A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense."

USSG §4A1.2(c)(1) (emphasis added). The fifteen offenses include, inter alia, careless or reckless driving, disorderly conduct, driving without a license or with a revoked or suspended license, fish and game violations, insufficient funds check, local ordinance violations and trespassing, as well as, in most circumstances, the unlisted offense of second degree harassment involving garden variety harassment conduct.

In 2003, some (but not all) of the Western District judges, at the urging of the federal probation office, began counting New York State conditional discharge sentences, finding them akin to a sentence of probation. That is what the sentencing judge did in Ramirez. This came after nearly 15 years (1987 to 2002) in which one year conditional discharges were never counted for criminal history purposes.

In June 2003, Ramirez pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to possess heroin with the intent to distribute. The applicable Guideline range under the Plea Agreement's calculations was 27 to 33 months' imprisonment. Prior to sentencing, the Probation Office issued a PSR that suggested Ramirez had been involved in past criminal conduct unaccounted for in the plea agreement. The PSR disclosed two violations in New York state court for which Ramirez received "conditional discharge" sentences under N.Y. Penal Law § 65.05: a 1996 plea to one count of non-criminal/violation disorderly conduct, and a 1997 plea to one count of non-criminal/violation driving without a license. The PSR recommended adding one criminal-history point for each of these convictions under U.S.S.G. § 4A1.1(c). The addition of these points pushed Ramirez to a higher criminal history category and resulted in a recommended Guidelines range of 46 to 57 months' imprisonment.

Over objection, the sentencing judge agreed with the Probation Office, finding that a one-year conditional-discharge sentence under New York law "is [the] equivalent of a one-year term of probation for purposes of [U.S.S.G. § 4A1.2(c)(1)(A) ]" because the statute describing conditional discharge, N.Y. Penal Law § 65.05, provides that such a sentence can be modified or revoked if the terms of the discharge are violated.

The Circuit's Decision

On Ramirez's appeal, the Second Circuit agreed with the district court. The panel was unpersuaded by New York States' distinction between probation and conditional discharge sentences and by its prior precedents that bore on the issue:

"The section of the Guidelines dealing with criminal history is designed to account for convictions "in the federal system, fifty state systems, the District of Columbia, territories, and foreign, tribal, and military courts," and to accommodate "jurisdictional variations in offense definitions, sentencing structures, and manner of sentence pronouncement." U.S.S.G. § 4A1.1 cmt. background. Thus, the terminology of punishment employed by a particular state is of limited value in interpreting the meaning of the guideline."

Finding that supervision is not a necessary component of federal probation, the Circuit found that "probation" as that term is used in the Guideline section is a broader concept. Id. at 164 (citing Black's Law Dictionary 1220 (7th ed.1999)) (defining probation as "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison."); Webster's Third New International Dictionary 1806 (1981) (defining probation as "the action of suspending the sentence of a convicted offender in such a way that the offender is given freedom after promising good behavior and agreeing to a varying degree of supervision, to the usually imposed condition of making a report to a particular officer or court at stated intervals, and to any other additionally specified conditions") (emphasis added).

One concern with the Court's decision is that probation can only be imposed following a defendant's conviction for a "crime" under New York law; it cannot be imposed, as can conditional discharge, following conviction for a "violation" or traffic infraction. See N.Y. Penal Law §§ 65.00, 65.05. But that too made no difference to the Circuit court. Id. Nor was the fact that when a court imposes probation, it must require that the defendant report to a probation officer and remain within the jurisdiction of the court, see N.Y. Penal Law § 65.10(3), while a court is not obliged to include these requirements when imposing a sentence of conditional discharge, see id. § 65.10. Nor for that matter, was the Court persuaded by the fact that these violation offenses carry a maximum of only fifteen days in jail (far short of the thirty day or more exception built into the guideline). This can be fairly seen as part of a greater circuit trend – exemplified by the Court's decisions in Guideline treatment of New York youthful offender adjudications, see – of effectively ignoring New York State law and focusing solely on a Sentencing Guideline "common law", if you will, in interpreting New York state sentencing provisions where the substance of the state provision at issue is key.

En banc review was denied. However, there are options to mitigate or avoid the later consequence of a one year conditional discharge, both in state court in the first instance, and at a federal sentencing if a one year conditional discharge has already been imposed.

Options at Original Sentencing in State or Local Court

What does this mean for state practitioners? First and foremost you will need to have a rather frank discussion with your state client before accepting a conditional discharge, if there is any indication that this brush with the law will not be your client's last. The client needs to understand that such a sentence, despite not counting in state court, may subject him/her to a higher criminal history category in federal court should they be charged with a federal offense in the future. Your client does have options, including one unpleasant one, to avoid the potential federal sentencing implications of a conditional discharge.

One of them is jail time. Since USSG §4A1.2(c)(1) excludes sentences of imprisonment up to thirty days from inclusion in the criminal history category, your state client can serve a sentence of up to 29 days (keep in mind the statutory maximum on violations are 15 days) before the sentence gets counted federally. It goes without saying that this may be a hard sell to your client. This is precisely the anomalous result which the Second Circuit was urged to avoid, but seems to embrace by its decision.

Another option may be to seek an unconditional discharge. There are two reasons for this. First, unconditional discharges surely cannot be found to be equivalent to probation under USSG §4A1.2(c)(1). Second, even if they were, you may be able to avoid the two additional points under USSG §4A1.1(d) (points that will be added when the federal offense was committed during the conditional discharge period). While conditional discharges will constitute a "criminal justice sentence" for purposes of two additional points – so long as they are revocable (United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir. 1996)) – unconditional discharges do not constitute a "criminal justice sentence" because they are not revocable, and points cannot be added under USSG §4A1.1(d). United States v. Sanders, 205 F.3d 549, 552 n.8 (2d Cir. 2000) (per curiam).

Third, while by operation of New York law, a conditional discharge is one year in length, you can still ask the local judge to make the conditional discharge for some period less than one year – say, one month or six months. If that is what the local criminal judgment entry provides, the conditional discharge cannot be counted by the federal judge under USSG §4A1.2(c)(1).

Options at Federal Sentencing

If you are considering a plea or approaching a federal sentencing and the one year conditional discharge has already been imposed in the local court, and there is no basis under which you could get the client resentenced in the local court (to something other than a one year conditional discharge) or get the local conviction vacated, there are still two major options that can mitigate the effect of the one point.

First, USSG §4A1.3(b)(1) which provides for the possibility "that a defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes," and authorizes the sentencing court to consider a downward departure to rectify any injustice created by faithful application of the Guidelines. See id.; § 4A1.1, cmt. background ("In recognition of the imperfection of the [method used in the Guidelines to calculate criminal history] ... § 4A1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances."). The Second Circuit in Ramirez specifically recognized that this provision can be properly used in the appropriate case where including the conditional discharge would produce anomalous results. (The Second Circuit's discussion of such a departure as a basis supporting its decision was curious, given that at Ramirez's sentencing he asked for just such an overrepresentation departure, and that departure was denied.)

Second, you should continue to seek a non-guideline sentence per United States v. Booker, 543 U.S. --, 125 S.Ct. 738 (2005). The skewed result of including a conditional discharge can be added in the 3553(a)(2) mix in making your sentence request for a sentence below the advisory Guidelines range. Indeed, Ramirez's case has been returned by the Second Circuit to the District Court for reconsideration of whether to resentence under Booker and the Second Circuit's seminal Crosby decision. Continue to ensure that you preserve your ability to ask for a non-Guideline sentence in any plea agreement that your client enters.

(By Tim Hoover and MaryBeth Covert, Federal Public Defenders Office, Buffalo, New York)

Conviction for Depraved-Indifference Murder Vacated Where Evidence Showed, at Best, that Defendant Committed Intentional Murder

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed -- Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson's grant of habeas based on the insufficiency of the evidence presented at Policano's New York state trial for murder. Essentially, the evidence showed that Policano, who had a serious beef with the victim, walked up to this unarmed individual, pulled out a 9 mm pistol, and shot him three times in the head and neck at close range. Policano was charged with two counts of second-degree murder under New York law -- one charging him with depraved-indifference murder, in violation of N.Y. Penal Law § 125.25(2), and the other charging him with intentional murder, in violation of N.Y. Penal Law § 125.25(1).

At his trial, the judge refused to grant the defense motion to dismiss the depraved-indifference count, and then told the jury that if it convicted on that count, it should not consider the intentional murder count. The jury convicted Policano of the depraved indifference count and did not reach the other count.

Policano eventually filed a § 2254 petition in the E.D.N.Y. arguing that the evidence was insufficient to support his conviction for depraved-indifference murder since, at best, the evidence showed that he intentionally murdered the victim. Judge Gleeson, and now the Circuit, agreed.

An element of depraved-indifference murder is that "the defendant was indifferent to whether his or her acts would result in the victim's death." Op. at 16. The defendant must act recklessly and must consciously disregard the substantial risk that death may result from his actions. Here, Policano -- at close range -- fired a gun four times at the defendant, including three times at his head and neck. In so doing, the court pointed out, "Policano was not recklessly creating a grave risk of death, but was creating a virtual certainty of death born of an intent to kill." Op. at 14. He acted to cause the victim's death intentionally, not recklessly. His conviction for depraved-indifference murder therefore could not stand.

Given this decision, and given the Double Jeopardy Clause, see Op. at 23 n.6, Policano will be "set free because he meant to kill his victim." Op. at 23. A strange result, to be sure, but also the correct one. The "fault," if any, lies with the state prosecutors and the state judge. Kudos to the Circuit for applying the law despite the unpopular outcome.

Protective Sweep Exception to Warrant Requirement Extended to Non-Arrest Context

United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme Court authorized police officers who were lawfully in a suspect's home to execute an arrest warrant to conduct, in addition, a limited sweep of the premises -- "a cursory inspection of those places where a person may be found" -- if they possess "articulable facts which . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334. The Circuit now holds that a protective sweep is justified whenever the police are lawfully on the premises (e.g., to execute a protective order (as in this case) or with a resident's consent), so long as they have a reasonable suspicion that an individual present in another area of the home poses a threat to the officers.

This case resolves an issue that the Circuit has twice dodged in recent years. See United States v. Gandia, 424 F.3d 255 (2d Cir. 2005); United States v. Moran Vargas, 376 F.3d 112 (2d Cir. 2004). It aligns the Second Circuit with the majority of the Circuits that have confronted this issue, see Op. at 9-10, though the Ninth and Tenth Circuits have rejected such an extension of Buie, id. at 10.

Regardless of this decision, it is important to keep in mind that the Buie exception to the warrant requirement is still a narrow one. Police officers must be on the premises lawfully. They must "possess 'articulable facts which . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the . . . scene.'" Op. at 8, quoting Buie, 494 U.S. at 334. And the sweep authorized is a limited one that "may extend only to a cursory inspection of those spaces where a person may be found," 494 U.S. at 335, and may "last[] no longer than is necessary to dispel the reasonable suspicion of danger," id. at 335-36.

Tuesday, November 08, 2005

An Excellent Supreme Court Summary from the Criminal Defense Perspective

Our colleagues in the Federal Public Defenders Office in Portland, Oregon, have once again prepared an excellent summary of the past Supreme Court term from the criminal defense perspective. To tantalize readers, here is Steve Sady's summary introduction:

"Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."

Click HERE for the full document in pdf format.

Wednesday, November 02, 2005

Prior Drug Convictions, Resulting in Mandatory Life Sentence under § 841(b)(1)(A), Need Not Be Charged in Indictment or Proved to a Jury

United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit's decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a kilogram of heroin, which ordinarily carries a mandatory minimum sentence of 10 years and a maximum sentence of life under 21 U.S.C. § 841(b)(1)(A). However, both defendants had sustained at last two prior drug felonies before committing the instant offense. This fact dramatically altered their sentence: Upon conviction, they would face a mandatory life sentence.

Prior to trial, the Government filed a prior felony information pursuant to 21 U.S.C. § 851 for each defendant, listing their prior drug felonies. These priors were not alleged in the indictment, however, nor were they presented to (or found by) the jury at trial. After the jury convicted the defendants of the "simple" § 841(b)(1)(A) offense, the judge sentenced both defendants to a mandatory life term.

On appeal, the defendants argued that the life sentences violated their Fifth and Sixth Amendment rights, contending that the Government must charge the prior convictions in an indictment and prove them to a jury beyond a reasonable doubt.

The Circuit affirmed the sentences on two independent grounds. First, the Court found that Harris controlled, since the fact of the prior convictions did not increase the statutory maximum, but only the statutory minimum (given that defendants faced a 10 to life sentence upon their conviction for distributing more than a kilo of heroin). See Op.5-6 ("[T]he statutory maximum remains constant, having been determined by the drug quantity found by the jury."). Second, and independently, the Court found that Almendarez-Torres controlled: Even if the Apprendi / Blakely rule were implicated, the prior conviction exception to that rule, set forth first in Almendarez-Torres, governed and thus the Government was not required to charge the priors in the indictment or present them to the jury. Op. 6-7. While recognizing Almendarez-Torres's tenuous status as precedent in light of cases such as Shepard, 125 S. Ct. 1254 (2005), the Circuit concluded that Almendarez-Torres "nonetheless remains the law." Op. 8.

The opinion thus breaks no new ground, simply following Harris and Almendarez-Torres. Both decisions rest on shaky ground, however, and perhaps the Supreme Court will use this case as a vehicle to, once and for all, settle the uncertainties.

Extortion Conviction Vacated Because Property Was Not Taken from Victim with His "Consent"

United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim by force (indeed, at gunpoint), they were not guilty of extortion (the sole offense with which they were charged in connection with this particular victim) because they did not give the victim the choice of refusing to turn over the property. The "element of consent" by the victim in turning over money or property, the Court explains, "is the razor's edge that distinguishes extortion from robbery," which involves taking money or property from a person "against his will." Op. 15. And because the evidence was insufficient to show that the victim was given the Hobson's choice of either turning over his property or be shot, the Court vacated the defendants' extortion convictions.

Defendants were charged with committing numerous acts of armed robbery in NYC's Chinatown during a six-month spree. Regarding one particular incident, however, the Government charged them with extorting (and conspiring to extort) money and property under the Hobbs Act, rather than robbery. Several Section 924(c) counts were also included in the indictment, one corresponding to each count of robbery or extortion. Defendants were convicted on all counts and they appealed.

The Circuit affirms their conviction on all counts except the extortion count, the related conspiracy count, and the corresponding § 924(c) count. Regarding the alleged extortion incident, the evidence showed that one of the conspirators called the victim on the phone, identified himself as being associated with "Vietnamese Boy" (VB), and said that VB would come by later that day to pick up $10,000, which the victim should place in a red envelope. The victim responded that he had no money and hung up. And while the victim testified that he vaguely knew who VB was, no evidence showed that VB had a reputation for violence or that the victim feared VB in any way.

Later the same day, four of the conspirators, including the two appellants, showed up at the victim's (illegal) gambling parlor and tried to get inside. When they couldn't, they asked to see the victim (one of the parlor's managers) outside. And when the victim came outside, the four conspirators pointed their guns at him and demanded $10,000. When the victim again said he had no money, the conspirators hit him on the head and in his stomach area with their guns. They then took a necklace worn by the victim and fled from the scene.

The Court held that these facts failed to prove the crime of extortion, which "means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear." 18 U.S.C. § 1951(b)(2) (emphasis added). Based on this language, and noting that "[c]hoice on the part of the victim is a common theme in all extortion cases," the Court ruled that an essential element of the crime of extortion is that the defendant gives the victim the option of either turning over his property, or not turning over the propety and face dire consequences. The Court explains:

"'[T]he legislative history of the [Hobbs] Act makes clear that its proponents understood extortion to encompass situations in which a victim is given the option of relinquishing some property immediately or risking unlawful violence resulting in other losses, and he simply chooses what he perceives to be the lesser harm. . . . In order to foreclose any argument by an extortionist that the relinquishment of property in such circumstances was [truly] voluntary, [however,] the Hobbs Act definition of extortion simply prohibits the extortionist from forcing the victim to make such a choice.'"

Op. 15 (emphasis in original) (quoting United States v. Arena, 180 F.3d 380, 394 (2d Cir. 1999)). Regardless of "however much of a Hobson's choice that may be," the true extortion victim "always retains some degree of choice in whether to comply with the extortionate threat." Op. 15. The "victim's consent -- however forced -- to the transfer of the property" is an essential element of the crime of extortion. Op. 16.

Where such choice on the part of the victim is absent, the defendant is guilty not of extortion, but of robbery. As the Court puts it, "this element of consent is the razor's edge that distinguishes extortion from robbery." Op. 15; see id. 27 ("[I]t is this notion that the victim of extortion consents to the taking -- albeit through threat or force -- that separates extortion from robbery.").

In this case, there was no indication in the record that appellants "thought, or sought, to obtain property from [the victim] . . . by means of a forced consent." Op. 24. Rather, the evidence showed only that appellants and their co-conspirators tried to rob the victim. See id. ("It seems inescapable that this incident was nothing more nor less than a classic robbery."). The Court thus vacated their extortion convictions.

Query: Does this case mean that a defendant who takes money from someone at gunpoint while saying "your money or your life" is guilty not of robbery but of extortion? It would seem so, since the victim is given a choice -- "albeit through threat or force" -- of either turning over his money or not turning over his money (with resulting dire consequences). Even such Hobson's choices count under the extortion statute, however, as this case explicitly holds. See Op. 15. But can this be right?

Tuesday, November 01, 2005

Circuit Finds No Right to Cross-Examine at Batson Hearing

Abdul Majid and Bashi Hameed v. Leonard A. Portuondo, Robert Kuhlmann, Docket Nos. 03-2608, 03-2610 (2d Cir. October 26, 2005)(Oakes, Kearse, Sack, op. by Sack). In a very long opinion that doesn't really say much, the Court found no constitutional right to cross-examine witnesses at a Batson hearing.

In 1986, Majid and Hameed, represented by William Kunstler and our own Mark Gombiner, were convicted of murdering a New York City police officer. During jury selection, the prosecutor exercised perempetory challenges against twelve of the fifteen African-American members of the venire (and against two African-American alternates), and six of the thirty-six others. During the trial, the Supreme Court decided Batson v. Kentucky. On appeal, the defendants successfully argued that the prosecutor's conduct raised an inference of purposeful discrimination, and the Appellate Division remitted the case to the trial court for a hearing.

The hearing took place in 1992, some six years after the verdict, and before a different judge, since the original trial judge had retired. The judge who conducted the hearing allowed both sides to call witnesses, but held, over objection, that only the court would be permitted to cross-examine them. The prosecutor testifed as to his reasons for striking the 14 African-Americans, giving detailed explanations that he said were based on his notes of the voir dire and his recollection of the trial. As the hearing progressed, the court invited the defense attorneys to submit cross-questions to the court, but the defense attorneys declined, fearing that this would deprive them of the "benefit of the adversary system." In the end, the prosecutor was cross-questioned by the judge, but not by defense counsel.

In a written opinion, the judge held that the prosecutor had testified truthfully and had provided credible, race-neutral reasons for his challenges. The Appellate Division affirmed, and the New York Court of Appeals granted leave and also affirmed. In that that case, People v. Hameed, which was decided in 1996, the court held that the trial court's denial of cross-examination at the Batson hearing was within its discretion and did not violate the Confrontation Clause.

The defendants' 1997 habeas corpus petition was denied by Judge Weinstein in 2003, who held that there was no clearly established Supreme Court law giving a defendant the right to cross-examination at a Batson hearing, and that the state court's "quasi-inquisitorial" approach was a full and fair way of determining the facts.

The Circuit had no trouble affirming. It noted that there was no "Supreme Court case law suggesting that an individual has a right to cross-examination in a Batson hearing, either as a result of the Confrontation Clause" or through the Batson decision itself. More disturbing, perhaps, is the Court's dicta that "there also remains doubt whether the defense enjoys the even more rudimentary right to be allowed access to the prosecution's race-neutral explanations in the first place," language that is accompanied by an approving reference to a Fourth Circuit decision upholding an ex parte Batson examination.

The Court also rejected the defendant's fall-back position that requiring cross-examination would be necessary to effectuate Baton's own holding that there be a "meaningful inquiry" into the prosecutor's reasons. Here, the Court concluded that the "bar" is "low[]" when it comes to trial courts setting their own Batson procedures.

Lastly, the Court rejected a claim that the state court's fact-findings were unreasonable, absent "clear and convincing evidence" that this was so.

There is one thing about this case that does stand out however -- the persistence of Mark Gombiner, who has been representing Mssrs Majid and Hameed for more than twenty years. Keep up the good work, Mark!