Monday, June 19, 2006

First Amendment Does Not Bar Sentencing Court from Considering Defendant's Writings to Rebut His Claims about His Character and Chance of Recidivism

United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006) (Meskill, Straub, Katzmann) (per curiam): This opinion primarily holds that while a sentencing court may not rely on a defendant's abstract beliefs (or writings) for the purpose of demonstrating that those beliefs / writings (and by extension the defendant) are "morally reprehensible" (and thus deserving of greater punishment), Op. 5, a court may properly consider such beliefs and writings when they rebut the defendant's mitigating evidence. Following Fernandez, the opinion also holds that the Circuit has jurisdiction to review a claim that the defendant's below-the-range sentence (of 24 months, down from the 30 to 37 months advisory range) was unreasonable. Finally, the opinion quickly upholds that sentence against an unreasonableness challenge, quoting Fernandez for the proposition that "reasonableness review does not entail the substitution of our judgment for that of the sentencing judge" and is akin to review for abuse of discretion. Op. 7. (One only wishes that the panel in Rattoballi (see below) similarly respected Fernandez's holding that deference, rather than searching scrutiny, is the correct posture on appellate review for substantive unreasonableness).

Regarding the principal issue on appeal, the essential facts are these. Kane pleaded guilty to defrauding the FHA and HUD through sham real estate transactions. Seeking a probationary sentence (the advisory range was 30 to 37 months), he claimed in his sentencing submission that he was, inter alia, an honest and charitable man who is genuinely sorry for his misconduct. These claims were supported by over 35 letters from family members and friends. Kane sought a probationary sentence on the basis of these claims, and also on the ground that he needed to remain at liberty in order to care for his ailing wife and that there was no real likelihood of reoffending.

To rebut these claims, the Government introduced excerpts from books that Kane had earlier published. We quote the opinion's rich description of these writings:

"In those excerpts, Kane penned how-to advice on topics ranging from wife 'training' to illegal real estate transactions. Specifically, he described how to convert 'single-family dwellings into rooming houses without it being legal,' a scheme that generated enough cash to fund his annual purchase of a new Cadillac Eldorado. He also gave advice on how to manipulate financial records so as to appear to qualify for subsidized housing, described running a fraudulent mail order scheme . . . , provided tips on how to avoid a sexual harassment suit while displaying photographs of topless women in the office, and in a work entitled 'Mastering the Art of Male Supremacy: Training Techniques for the Home Front,' set forth his philosophy of 'training a wife,' which eschewed real violence but endorsed use of 'a rolled up newspaper on the rump once in awhile.'"

Op. 3. Kane claimed that these writings were "jokes" made solely for entertainment purposes, but the sentencing court rejected this characterization. The court then looked to the writings and found that they contradicted Kane's claims regarding his honesty, desire to help his ailing wife, and unlikelihood to reoffend. As the opinion puts it, "the [district court] concluded that Kane's published advice on running real estate and mail order schemes undercut his professed honesty, and his guide to 'mastering the Art of Male Supremacy' tempered the sincerity of his spousal devotion." Op. 3-4.

The Circuit upheld the sentencing court's consideration of Kane's writings against a First Amendment challenge. While a court cannot consider a defendant's expressive activities for the purpose of determining that greater punishment is appropriate because the defendant is "morally reprehensible," Op. 5, quoting Dawson v. Delaware, 503 U.S. 159, 165 (1992), it may consider such activities "so long as it is relevant to the issues involved in the sentencing proceeding." Op. 4. "Among other possible uses," the Circuit explained, "a particular piece of evidence may be relevant to show motive, analyze a statutory aggravating factor, illustrate future dangerousness or potential recidivism, or rebut mitigating evidence that the defendant proffers." Op. 4-5.

Here, the sentencing court properly considered Kane's writings, since they undercut his claim that he is honest, charitable, and devoted to his wife. Moreover, since "much of Kane's writings concerned illegal real estate schemes, which related directly to his offense of conviction, the writings also 'may indicate the increased likelihood of recidivism or lack of recognition of the gravity of the wrong.'" Op. 5.

And as noted earlier, the Circuit upheld the 24-month sentence (below the 30 to 37 months advisory Guidelines range) against Kane's challenge that it was still unreasonably long. The Court deferred to the district court's considered judgment of the appropriate sentence, explaining that it will not "substitute [its] judgment for that of the sentencing judge." Op. 7. The Court thus upheld the sentence after noting only that "[t]he Judge considered the relevant sentencing factors in careful and reasoned fashion, premised his conclusion on a sound view of the facts, and understood the applicable legal principles." Op. 8. The Court described Kane as "merely renew[ing] the arguments he advanced below -- his age, poor health, and history of good works" -- in his challenge to the 24-month sentence, and rejected this effort as "ask[ing] us to substitute our judgment for that of the District Court, which, of course, we cannot do." Id.


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