Thursday, December 29, 2005

Prior Felony Information Requirement of 21 U.S.C. § 851 Not Jurisdictional

Sapia v. United States, Docket No. 03-2087 (2d Cir. Dec. 28, 2005) (Winter, Straub, Lay (by desig'n)): Section 851 of Title 21 provides that the enhanced penalties set forth in § 841(b) for defendants who commit a drug offense after sustaining prior drug convictions are triggered only if the Government files, before trial or the entry of a guilty plea, an information "stating in writing the previous convictions to be relied upon." In this decision, the Court holds that the prior felony information requirement is not jurisdictional, and thus that an argument, raised in a collateral attack, that the sentencing court erred in imposing an enhanced sentence in the absence of a § 851 information is subject to procedural default analysis. And because Sapia could not satisfy the cause-and-prejudice inquiry, the Court dismisses his § 2255 petition.

The essential facts are simple. Sapia was indicted for conspiring to distribute 5 or more kilograms of cocaine under § 846 & 841(b)(1)(A). He had a prior drug conviction and thus faced a mandatory minimum of 20 years (rather than 10 years) under § 841(b)(1)(A). He entered into a plea agreement with the Government, acknowledging that the applicable Guidelines range was 240 to 293 months' imprisonment. The range would've been 235 to 293 but for the 20-year minimum.

Sapia was thus fully aware that he faced a 20-year minimum. However, the Government somehow failed to file a § 851 information until the day after Sapia pleaded guilty.

The judge eventually sentenced Sapia to 270 months' imprisonment, well above the 20-year minimum. There was no appeal.

A year later, Sapia filed a § 2255 petition claiming that his sentence was erroneously imposed because the Government failed to comply with § 851's requirement. Because this claim was not raised on direct appeal, it was procedurally defaulted. Therefore, the claim could only be addressed on the merits in the § 2255 petition if (1) Sapia could show cause & prejudice for his failure to raise the claim on the direct appeal, or (2) the claim went to the district court's "jurisdiction," since jurisdictional errors cannot be procedural defaulted or otherwise waived or forfeited.

The Circuit ruled that § 851's requirement was not jurisdictional, and that Sapia could not show cause & prejudice. First and foremost, the Court adopted the "prevailing view" that "§ 851 does not implicate a court's subject-matter jurisdiction; it simply constitutes a condition precedent to a court's authority to impose a statutorily authorized sentence." Op. at 7-8. "The essential point," the Court explained, is that "'jurisdiction' . . . refers to a court's statutory or constitutional power to adjudicate the case, and § 851 simply has nothing to do with a court's subject-matter jurisdiction over a criminal case or a court's general power to impose a sentence." Op. at 8. "Whether or not the prosecution files a timely section 851(a) information, a federal district court plainly possesses subject-matter jurisdiction over drug cases. Once subject-matter jurisdiction has attached, courts may exceed their authority or otherwise err without loss of jurisdiction." Id. Sapia's failure to raise the § 851 error on direct appeal is thus subject to procedural default analysis.

Second, Sapia could not satisfy the cause and prejudice inquiry by claiming that counsel was ineffective for failing to file a direct appeal raising the § 851 claim. The Court went straight to the prejudice prong of the Strickland inquiry and concluded that, even if counsel's failure to file an appeal on this issue fell below objective norms, Sapia could not show prejudice given the sentence imposed. As noted, the district court imposed a 270-month sentence even though the erroneous minimum was only 240 months. And nothing in the record shows that the court would have imposed a different sentence had it known that the enhanced minimum was not triggered, and thus that Sapia faced a Guidelines range of 235 to 293 rather than 240 to 293.

Thus, there was no "reasonable probability" that the error in failing to file a § 851 information prior to Sapia's plea affected the outcome. And since Sapia had no other way to circumvent the procedural default problem, the Court dismissed the petition.

Wednesday, December 28, 2005

Circuit Vacates Conviction Based on Defendant's Uncorroborated Admissions Made in Personal Journal

United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant's conviction on most counts, but reverses on two counts that were based solely on the defendant's admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving's home was not based on stale information even though most of the facts cited in the supporting affidavit were several years old, because there is a "kiddie porn exception" (the cynic's take) to the staleness rule: "When a defendant is suspected of possessing child pornography, the staleness determination is unique because it is well known that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes." Op. at 30. The opinion also discusses issues regading the propriety of a border search (summary: "Right of privacy? Please. It's a border!") and whether the fine statute, 18 U.S.C. § 3613(a), overrides ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1) (summary: "Yes! Fine away!").

This Blog will discuss only the corroboration issue. (Which also happens to be the sole issue mentioned or identified in the first 17 pages of the opinion. While brief writers must of course provide a context and roadmap to subsequent discussions, no strictures on effective writing apparently apply to sacred texts decreed by the Blessed.)

Irving was charged with traveling to Mexico in 1998 for the purpose of engaging in sex with underage children. He was also charged in separate counts with traveling to Honduras for the same purpose in 1999.

The evidence underlying the Mexican counts was strong. It included testimony by a cooperating co-conspirator and by an eyewitness, for instance. The Court upheld Irving's conviction on the Mexican counts.

In contrast, the Honduran counts were based almost entirely on Irving's own musings in his personal journal, apparently kept contemporaneously during a one-week trip to Honduras in 1999. In the journal -- found during the 2003 search of his apartment -- Irving described his activities in unfortunate detail, including his seduction and molestation of a 12-year-old street boy.

Apart from the journal, the Government offered only evidence showing that Irving was present in Honduras during the relevant period. For instance, it showed that someone withdrew money from Irving's bank account using an ATM located in Honduras during this time. Irving's employment records and passport further confirmed his presence in Honduras.

This, the majority held, was insufficient to sustain Irving's conviction on the Honduran counts. The Court acknowledged the federal rule that a conviction can be based on the defendant's statements alone, so long as they are reliable. Op. at 12-13. But it concluded that Irving's writings in the journal were neither reliable per se (in contrast to, e.g., statements made to a co-conspirator or made prior to the commission of the crime) nor corroborated by independent evidence, and thus could not support the jury's verdict.

First, the Court concluded that the journal "does not fall into any of the previously existing categories of self-corroborating statements. Nor does its nature and context suggest that we should consider it self-corroborating." Op. at 14. Without more, the Court explained, "the [journal's] narrative of child molestation may as easily be a record of fantasies as of events that actually transpired." Id.

Second, because the statements were not self corroborating, the "prosecution had to produce substantial independent evidence which would tend to establish the trustworthiness of the statement." Op. at 14. The Court then crucially added that the required "substantial independent evidence" must establish the statement's reliability "specifically with respect to those portions relating to the elements of Irving's crime -- traveling with the intent to engage in sexual acts with minors." Op. at 14 (emphasis added). And while the Government offered evidence supporting the reliability of the journal's claim that Irving traveled to Honduras during the relevant period, it offered no evidence supporting the reliability of the journal's discussion of his seduction of the underage boy. Op. at 15-16. As the majority explained:

"If the crime charged was travel to Honduras, the government's proffered corroborative evidence might well have been sufficient because it would have corroborated the essential elements of that hypothetical crime. However, the crime charged was traveling to Honduras with intent to engage in sexual activities with minors. The government failed to present any evidence corroborating the essential elements of this crime that were admitted in the journal."

Op. at 16. The majority then suggested how the evidentiary gap could have been filled:

"If the government offered corroboration of most of the journal, or corroborated critical parts of Irving's writings about children -- for example, by offering the testimony of hotel managers whom Iriving wrote objected when they found he had brought children to his hotel room -- we might conclude that a reasonable jury could find the defendant's journal entries trustworthy."

Op. at 17 (emphasis in original).

Judge Cabranes's dissent is, despite this Blog's orientation, worth a look. He emphasizes that the two elements of the crime charged are that the defendant (1) traveled to Honduras (2) for the purpose of engaging in sexual acts with underage children. Dissent at 1. Crucially, "the government was not required to prove that defendant engaged in particular sexual acts with children in Honduras, or indeed, in any specific acts in Honduras." Id. (emphasis in original).

Looked at this way, it is a bit difficult to dispute Judge Cabranes's point that "[a]s a matter of common sense, the journal, filled as it is with copious details about defendant's attempt to engage in sexual activity with prepubescent male street children, is a reliable guide to the purpose of his trip to Honduras." Dissent at 2 (emphasis added). Given moreover that independent evidence corroborated the other element of the offense (Irving's travel to Honduras), perhaps the dissent has a point. But what do we know.

Tuesday, December 27, 2005

Evidentiary Errors Found Harmless, and Acquitted Conduct Properly Used in Role Enhancement

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant's plea allocution at the defendant's trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the "overwhelming" evidence of the defendant's guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant's attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant's behavior "as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt tguilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged." Op. at 8 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). And a trial court should allow the Government to use such evidence (and also to ask the jury to infer the defendant's guilt from such evidence) only where "each link in the chain of inferences leading to that conclusion is sturdily supported." Op. at 8.

The Court also upheld a 2-level role enhancement based on the defendant's supervision / recruitment of a co-defendant (his father) who was acquitted at the same trial. While the enhancement can be triggered only if the defendant supervised / recruited a "participant" -- i.e., another criminally culpable party -- that participant need not be convicted. And the Court held that despite the father's acquittal, there was sufficient evidence to find that he was a knowing participant in the criminal venture. Op. at 13. The Court's sanction of this practice should hardly come as a surprise, given its decision earlier this month sanctioning the use of acquitted conduct to elevate the defendant's offense level.

Tuesday, December 13, 2005

A Good Decision on Mootness and Appeal Waivers

United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision -- yet another in the criminal realm by Judge Sotomayor -- has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of his sentence, imposed pre-Blakely (and thus pre-Booker), because the length of the sentence "probably" would affect Hamdi's ability, at a future date, to enter the U.S. on a non-immigrant visa. See Op. at 4-10. Second, a simple declarative statement in a plea agreement that the "[t]he defendant's sentence is governed by the United States Sentencing Guidelines" does not prohibit the defendant from raising on appeal a claim that his sentence, imposed under the then-mandatory Guidelines regime, is invalid in light of Booker. See id. at 10-20. We will focus on the second issue.

Hamdi's plea agreement did contain an explicit appeal waiver provision barring him from appealing his conviction or sentence "in the event that the Court imposes a term of imprisonment of 21 months or below." Op. at 11. However, this provision did not come into play because the district court sentenced Hamdi to 24 months' imprisonment.

Undaunted, the Government grasped at an earlier part of the plea agreement -- Paragraph 2 -- which states declaratively that "The defendant's sentence is governed by the ... Sentencing Guidelines." Op. at 11. The Government argued that because the entire plea agreement began with the prefatory statement that the parties "agree to the following," and because Paragraph 2 is part of that "following," Hamdi has agreed that the Guidelines govern his sentence and thus cannot claim on appeal that, in light of Booker, the Guidelines do not govern his sentence.

The Court rejected this argument after closely parsing the wording and structure of the agreement. It concluded that despite the prefatory statement, not everything that followed constituted "a promise by one party or the other." Op. at 14. Rather, while some parts of the agreement are "covenants or promises to perform" by the parties, other parts are simply descriptive and create no obligations on either party. The "purely declarative" sentence in Paragraph 2 falls in the latter category, Op. at 15, as it "contains no language that even arguably creates on obligation on Hamdi." Op. at 16.

"Read as a whole," the Court concluded, "the paragraph has no apparent purpose other than to comply with our suggestion in Pimentel that the government provide a defendant in Hamdi's position with an informed estimate of his sentencing exposure under the Guidelines." Id. And even if there were any ambiguity on this point, the Court futher noted, "well-settled principles of construction of plea agreements . . . [require that] we resolve this ambiguity in Hamdi's favor and decline to read the sentence as a waiver of appeal rights with respect to Booker procedural error." Op. at 17.

Unfortunately, the decision goes to some length to distinguish itself from -- and thus affirms the continuing validity of -- the Court's earlier misguided decisions in Morgan and Haynes (holding that an appeal waiver entered into before Blakely bars a post-Booker challenge on appeal). See Op. at 18-21. As the Court explains, "our holding [here] turns on an interpretation of the plea agreement in light of the parties' reasonable understanding at the time the agreement was made, and not on the extent to which Hamdi could have anticipated subsequent changes in the law." Op. at 18. Morgan's "rule that an explicit waiver of appeal rights include even those rights not yet recognized at the time the parties entered into the plea agreement" is not disturbed by this case, which concludes only that "an arguably ambiguous plea provision not denominated as a waiver, and which would not have been understood as a waiver by the parties at the time they entered into the agreement, may not be so transformed ex post merely because the language logically relates to the newly recognized right and could plausibly be interpreted, in isolation and in light of current understanding, as a waiver of that right." Op. at 19.

Thursday, December 08, 2005

The Guidelines Grind Continues Unabated

United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig'n)): Many had hoped that Booker's demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after week. That hope has proven unfounded, as this decision again confirms.

The Court holds that unadjudicated juvenile conduct can constitute a predicate offense under a now-repealed version of the rarely seen enhancement under § 4B1.5(b), calling for a 5-level enhancement if the defendant, convicted of a qualifying sex crime, previously "engaged in a pattern of criminal activity involving prohibited sexual conduct." U.S.S.G. § 4B1.5(b) (2002 ed.). Those interested in how the Court came to this fascinating conclusion are on their own. See Op. at 9-17. Suffice it to say that the Court made no mention of the fact that this outcome contradicts the spirit of Apprendi, Blakely, Ring, and Booker, if not the letter of Breyer's ju-jitsu remedial opinion.

The decision also mysteriously remands for further fact-finding because the district court failed to "explicitly state which statutory offenses constitute the 'prohibited sexual conduct'" previously engaged in by Phillips. Op. at 20. This appears formalistic given that the Court has already (1) affirmed the district court's adoption as fact the PSR's finding that Phillips, when 15 or 16 years old, sexually molested a 7 or 8 year old boy, Op. at 19; and (2) noted that both 18 U.S.C. § 2243 and N.Y. Penal Law §§ 30.00, 130.50(1) & (2), criminalize such behavior, Op. at 12-13. The remand will surely be a complete waste of time -- but what is that when Justice so demands!

Tuesday, December 06, 2005

Further Fact-Finding Required on IAC Claim

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court's denial of a § 2255 petition, based on Zapata's IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on the critical question. The district court denied the petition on the theory that even assuming that counsel failed to consult with Zapata about an appeal, "petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal." Op. at 2-3. The Circuit didn't want to play this "assumption" game, however, because it would present the following Hobson's choice: (1) "[i]f we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined"; or (2) "[i]f we reject the assumption, we must make an independent factual determination -- an endeavor for which appellate courts are not optimally situated." Op. at 3. The Court thus remands for a definitive fact-finding concerning whether trial counsel consulted with Zapata about an appeal following sentencing.

The substantive issue involved in Zapata's case is gut-wrenching for those who practiced in the dark days before Apprendi and simply assumed that our clients (like Zapata) could be sentenced to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) even though drug quantity was neither alleged in the indictment, admitted by the defendant, nor found by a jury. Assuming that trial counsel did not consult with Zapata about the appeal, the IAC question becomes whether a reasonably competent attorney would have believed that there was a non-frivolous Sixth Amendment challenge to the 10-year sentence on appeal -- in 1999. That is indeed a question whose answer would involve "extensive legal reasoning".

Reasonableness Standard Governs Appellate Review of Upward Departure in Length of Supervised Release Term

United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such departures for reasonableness. The Court notes additionally, as it did in Crosby and Selioutsky, that "reasonableness has substantive and procedural dimensions," and thus that the Court will review "both the length of the sentence as well as whether the district court treated the Sentencing Guidelines as advisory and considered the applicable Guidelines range and the factors listed in § 3553(a)." Op. at 3.

Here, the district judge upwardly departed (presumably from a range of 3 to 5 years) and imposed a 7-year term of supervised release, citing among other things defendant's "recidivism, mental health needs, and substance abuse problems." Op. at 4. Unfortunately, the Circuit had no occasion to consider the "substantive" reasonableness of the sentence, since the only argument raised on appeal was whether the 7-year term was unreasonable because it was higher than the 3-year term recommended by the Probation Office. The Circuit appropriately gave short shrift to this odd argument. Id.

Yet Another Broad Reading of the "Public Safety" Exception to the Miranda Requirement, and a Thorough Discussion of Fed. R. Evid. 609(a)(1)

United States v. Estrada, Docket No. 02-1543-cr (L) (2d Cir. Nov. 29, 2005) (Winter, Sotomayor, Wesley): This decision (1) upholds evidence seized as a result of the defendant's response to post-arrest but pre-Miranda police questioning under the "public safety" exception first laid out in New York v. Quarles, 467 U.S. 649 (1984); and (2) finds that the district court erred (though harmlessly, of course) in blanketly limiting the impeachment of Government witnesses to the mere fact of their prior felony convictions while excluding the nature / name of those convictions under Rule 609(a)(1) of the Federal Rules of Evidence.

The holding on the Miranda issue is disturbing, though the Circuit's law on the public safety exception was bad to begin with. See Op. at 7-10. Here, police officers executed an arrest warrant for defendant DeJesus in his home, based on two probation violations. They were also aware that he had two priors for assault and heard rumors that he was a drug dealer. A female companion of DeJesus was in the apartment at the time. After handcuffing DeJesus and before administering the Miranda warnings, one officer asked him whether there were any weapons in the apartment. DeJesus said he had a gun in his jacket, which was across the room. Unfortunately for him, heroin was also found in the jacket.

The Circuit ruled that the pre-Miranda questioning was justified under Quarles. The Court announced "three principles" governing the public safety exception: (1) no warnings need precede "questions reasonably prompted by a concern for public safety or for the safety of the arresting officers, so long as the questioning relates to an objectively reasonable need to protect the police or the public from any immediate danger"; (2) the questioning "may not be investigatory in nature or designed solely to elicit testimonial evidence from a suspect"; and (3) pre-Miranda questioning is the exception, not the norm. Op. at 10-11 (emphasis in original). Under these principles and in light of the aforementioned facts, the Court held, the questioning of DeJesus was appropriate. Op. at 12. The Court especially noted that the police were aware of his prior assault convictions; that he was possibly a drug dealer (and guns are tools of that trade); and that another person was in the apartment at the time of arrest. Id.

The Court repeated several times in the opinion that the "exception must not be distorted into a per se rule as to questioning people in custody on narcotics charges," emphasizing that "the exception will apply only where there are sufficient indicia supporting an objectively reasonable need to protect the police or the public from immediate harm." Op. at 13. Cynics may snicker, though, at such high-minded language given the actual outcome.

Rule 609(a)(1): The district court prevented defense counsel from impeaching several Government witnesses with the nature / name of their prior felony convictions -- none of which were crimen falsi governed by Rule 609(a)(2) -- and permitted counsel to elicit only the existence of the prior convictions (and their dates) under Rule 609(a)(1). The judge described this as the standard practice in the District of Connecticut, noting that he was "not aware of any judge in this district that lets in the nature of the conviction rather [than] simply the fact and the date." Op. at 5.

The Circuit quickly condemned this practice. Rather, the "presumption" -- subject to Rule 403 balancing -- is that "the 'essential facts' of a witness's convictions, including the statutory name of each offense, the date of conviction, and the sentence imposed, are included within the 'evidence' that is to be admitted for impeachment purposes" under Rule 609(a)(1). Op. at 17. A district court should exclude evidence of the nature / name of a prior felony conviction for impeachment purposes only if, on the specific facts of the case, Rule 403 balancing so dictates.

And to aid trial courts in their Rule 403 analysis, the Court went on to discuss in some detail how "different felonies, even those that do not constitute crimen falsi [[which must be admitted under Rule 609(a)(2) without 403 balancing)], bear on credibility to varying degrees." Op. at 19. This "gradation among Rule 609(a)(1) crimes, in terms of their bearing on truthfulness," is important because it "lie[s] at the heart of the Rule 403 analysis." Op. at 23.

The Court offered some examples. On the one hand, crimes "ranking low on the scale of probative worth on credibility" include "crimes of violence," "drug crimes, and crimes involving public morality, such as prostitution." Op. at 21-22. On the other hand, crimes "falling outside Rule 609(a)(2) but nonetheless ranking high on the scale of probative worth on credibility" include "theft and escape crimes," "crimes of stealth (e.g., smuggling, burglary)," "crimes that involve evasion of responsibility or abuse of trust" (a "category that includes smuggling or failure to register or report when required" or "sometimes drug importation and even sexual abuse of children in [the witness's] care"), and "crimes requiring planning or preparation" (on the theory that "planning indicates deliberate and injurious violation of basic standards rather than impulse or anger" and "usually involves some element of deceiving the victim"). Op. at 21-23. Moreover, "the gravity of an offense may bear on truthfulness," on the theory that the commission of "more serious offenses indicates a stronger willingness to ignore the law." Op. at 22.

The opinion ends on an excellent defense point -- one we have made in the past but which have fallen on deaf district court ears. In concluding the Rule 609 discussion, the Circuit emphasized that different concerns are at play when it's the Government's witness who is being impeached (as in this case) rather than the defendant's. The Court noted that "the probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases." Op. at 24. This is so because "the behavior of the witness is not in dispute in most cases," and thus "little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence." Id. And while prior convictions of a Government witness may sometimes "inflame the jury or invite a propensity inference," the Court emphasized that "impeachment evidence relating to a government witness should be excluded under Rule 609(a)(1) only when there is a real danger that such prejudice substantially outweighs the probative value of a witness's felony convictions as they relate to his or her propensity for truthfulness." Op. at 25. As a result, "district courts must be skeptical when the government objects to impeachment of its witnesses with prior felony convictions and should be reticent to limit such impeachment in the absence of a demonstrable danger of prejudice to the government's interest in a fair trial." Op. at 27 (emphasis added).

Booker Changes Little Regarding Internal Operation of Guidelines: Preponderance Standard Governs, and Acquitted Conduct Can Be Considered

United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit's position on the calculation of the Guidelines range in the post-Booker world has now become quite clear: The same rules that formerly governed pre-Booker continue to govern post-Booker, the only difference being that the end result of those calculations (i.e., the Guidelines range) is merely advisory and only one factor among several to be considered under 18 U.S.C. § 3553(a) in imposing sentence.

The decision also quickly rejects an ex post facto / Due Process challenge to the use of the remedial portion of the Booker opinion to defendants who committed their crime before January 2005, and discusses the appropriate language to use in a jury charge concerning how to evaluate the credibility of a cooperating witness testifying as a member of Team America.

The essential facts are simple. The two defendants were charged with a § 841(b)(1)(B) drug conspiracy carrying a 5 to 40 year sentence. At trial, an alleged co-conspirator testified for the Government pursuant to a cooperation agreement. Defense counsel sought a detailed charge to the jury explaining how testimony from snitches should be viewed (i.e., with great suspicion given their strong motive to curry favor with The Man). The court denied the request and gave a more watered-down charge concerning the evaluation of a snitch's testimony.

Defendants were convicted. However, the jury indicated on a special verdict form that the Government proved only a § (b)(1)(C) quantity of drugs (carrying a 0 to 20 year sentence). At sentencing, the court found on a preponderance standard that defendants were responsible for distributing far more than what the jury found, and imposed sentences in accordance with that finding under the then-mandatory Guidelines -- 97 months and 121 months, respectively.

1. The Court disposed of the ex post facto argument quickly, noting that even before Booker, defendants had fair notice that distributing drugs carried at least a 20 year maximum. Op. 9-10.

2. The Court also quickly rejected the argument that the reasonable doubt standard should be used after Booker, pointing to Crosby's conclusion that "district courts remain statutorily obliged to consider the Guidelines in the same manner as before." Op. at 11.

3. The same back-o'-the-hand treatment was given to the defendants' argument that acquitted conduct can no longer be used to calculate the Guidelines range after Booker: "[D]istrict courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct." Op. at 13. This general proposition is subject to three qualifications: The district court may not, however, impose "(1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict." Op. at 14.

4. The only silver lining in the opinion concerns the jury charge issue. The Court ultimately upheld the defendants' convictions, finding that considered in light of the other components of the courts' charge as well as points made in defense counsel's summation and on cross of the snitch, "the issue of the cooperator's credibility" was "fairly put" to the jury. Op. at 6. The Court specifically cautioned, however, that "a more detailed accomplice or cooperating witness instruction . . . would have been prudent." Op. at 8. Indeed, "[t]he better course would have been for the trial judge to more specifically caution the jury to scrutinize the testimony of the cooperating witness with an eye to his motivation for testifying and what he stood to gain by testifying." Op. at 6. This should be excellent fodder to convince a trial judge to give a detailed "snitch credibility" charge.

Monday, December 05, 2005

A Defense Friendly Rule 33 Decision

United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court's grant of the defendant's Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal concerned the effect of the defendant's failure to timely file the Rule 33 motion in the district court -- that motion (1) was not filed within the 7-day period allowed by Rule 33 and (2) defense counsel sought an extension from the district court outside of that time period. The kick is that the Government did not object to defense counsel's extension request, nor did it oppose the Rule 33 motion on timeliness grounds in its initial response to the defendant's motion in the district court.

The dispute thus came down to this. If the time limit set forth in Rule 33 is considered "jurisdictional," then the Government's failure to timely raise the defendant's untimeliness is of no moment -- the motion must be dismissed because a court's lack of power to act is not subject to waiver or forfeiture. But if Rule 33 sets forth only an "inflexible claim process rule," then the Government's failure to raise a timely objection to the defendant's failure to abide by Rule 33's time limit means that it has waived the argument, and the court can consider the Rule 33 motion on the merits.

Those keeping track of the Roberts Court know, of course, that the Supreme Court recently answered this question in Eberhardt v. United States, 126 S. Ct. 403 (2005) (per curiam): Rule 33's time limits are merely claim-processing rules that can be waived (unlike true jurisdictional limitations). Here, therefore, the Government's failure to timely object to the untimeliness of the defendant's Rule 33 motion results in a waiver of such an argument on appeal.

The decision also upholds the merits of the district court's decision to grant the Rule 33 motion, finding no abuse of discretion. The gist of the facts concerning this issue is that although one witness identified the defendant as the shooter at trial (the sole witness to do so), the same witness (1) previously denied knowing the identity of the shooter on several occasions, and (2) benefitted monetarily and otherwise from his testimony against the defendant. The Circuit ruled that on these facts, the district court did not abuse its discretion in granting the new trial motion.