Friday, January 27, 2006

Error in Precluding Non-Hearsay Testimony as Hearsay Found Harmless

United States v. Song, Docket No. 05-1802-cr (2d Cir. Jan. 27, 2006) (Cabranes, Sack, Amon (by desig'n): The Circuit upholds Song's conviction for transporting illegal aliens in this short opinion. The Court agreed with Song that the district court erred -- badly, badly erred -- when it precluded him from testifying about certain statements made to him by persons "who had allegedly hired [him] to serve as a tour guide after he had responded to a [Korean language] advertisement seeking 'drivers' for unspecified purposes." Song wanted to use these statements to "demonstrate the motivation behind [his] actions," -- i.e., to show that he did not knowingly transport illegal aliens. Since Song was not offering these statements for their truth -- indeed, his defense was that these false statements induced him to believe that he was driving some tourists around -- they should not have been barred as hearsay. (Query: Isn't this something that even a 1-L knows?)

The Circuit found the error harmless, however, because (1) Song's basic defense was otherwise adequately presented to the jury, and (2) "the Government presented overwhelming evidence that Song had acted with 'reckless disregard' of the undocumented or illegal status of his alien passengers." Op. 4.

Thursday, January 26, 2006

Eligibility for Safety Valve Unaffected by Booker

United States v. Holguin, Docket No. 04-5277-cr (2d Cir. Jan. 26, 2006) (Winter, Straub, Raggi): In this opinion, the Circuit finally and unsurprisingly slams the door on Booker-based challenges to the district court's determination of a defendant's eligibility for the safety valve under 18 U.S.C. § 3553(f). Here, Holguin argued inter alia that in light of Booker, the fact that the district court determined that he was an organizer or leader within the meaning of U.S.S.G. § 3B1.1 did not disqualify him from safety-valve relief under 18 U.S.C. § 3553(f)(4) because this provision itself "should be deemed advisory after Booker because the Supreme Court struck down the mandatory nature of the Guidelines" in its entirety. Op. 3. The Circuit rejected this argument, concluding that neither Booker nor the Apprendi-Blakely line of cases was implicated because "judicial fact-finding as to whether a defendant was a supervisor or leader (and thus barred from or entitled to safety valve relief) does not permit a higher maximum sentence to be imposed; the only effect of the judicial fact-finding is either to reduce a defendant's sentencing range or to leave the sentencing range alone, not to increase it." Op. 11 (emphases in original).

The only bright note in the opinion is the Government's concession that once a defendant satisfies the safety valve, the district court should treat the Guidelines as advisory in light of Booker. Though this contradicts the plain language of Section 3553(f) (district court "shall impose" a sentence "pursuant to" the Guidelines if defendant qualifies for safety valve), and though Booker itself did not "excise" this provision, the Government conceded that this provision "should be interpreted to mean that a district court [need only] 'consider' the Guidelines in an advisory fashion" once the mandatory minimum is no longer, er, mandatory. Op. 3-4.

The Court did not ultimately reach this issue since Holguin failed to qualify for the safety valve. However, the opinion strongly suggests that the Court agrees with the Government on this issue and that once a defendant satisfies the conditions for safety-valve relief, the district court should consider the Guidelines as only advisory in imposing sentence. Op. 6.

UPDATE: Professor Berman has once again beaten us to the punch in our own backyard (early morning mixed metaphor) -- click here for his discussion of the case (which mentions the opinion's use of an odd neologism -- "a condition of the guilt of the crime" -- for the far simpler term "element").

Friday, January 20, 2006

Bribery Conviction Requires Proof that Recipient Accepted Thing of Value with Intent to Be Influenced by Bribe

United States v. Ford, Docket No. 03-1774 (2d Cir. Jan. 19, 2006) (Winter, Katzmann, Raggi): "[R]estraint must be exercised in defining the breadth of the conduct prohibited by a federal criminal statute." Op. 14. Hallelujah -- we just wish this maxim were applied more frequently in non-white collar cases.

In this case, the Circuit vacates Ford's conviction for accepting a bribe under 18 U.S.C. § 666(a)(1)(B) -- punishing those who "corruptly . . . accept . . . anything of value . . . intending to be influenced . . . ." in the performance of their duties -- because the trial court's instructions to the jury failed to properly convey the intent requirement of the statute, at least as it applies to recipients of a bribe. Specifically, the instructions "appear to have told the jury that [§ 666's] intent requirement was fully satisfied by the recipient's knowledge of the donor's intent and omitted any reference to the recipient's intent in accepting the thing of value." Op. 13. For instance, the trial court told the jury that "if the recipient accepts anything of value with awareness that one of the purposes for which it is given is to influence her . . . , the recipient has acted with intent to be influenced." Op. 15; see also Op. 12. This was error.

While a recipient's knowledge "of the donor's intent to arrange a quid-pro-quo or to seek special consideration" may constitute evidence of the requisite mens rea, the Court held, "such knowledge is insufficient, by itself, to prove the Section 666 violation." Op. 14-15. Under the plain language of the statute, "the recipient must have accepted the thing of value while 'intending to be influenced.' . . . [T]here must be a quid-pro-quo." Op. 16. It is "the recipient's intent to make good on the bargain, not simply her awareness of the donor's intent, that is essential to establishing guilt." Op. 17. Because the trial court's instructions "failed to spell out the specific state of mind requirement of a bribery charge under Section 666 -- the defendant's intent to be influenced in awarding [her union's] business in return for a thing of value" -- the Court vacated Ford's conviction and remanded for a new trial. Op. 17.

Trial Judge's Clear Acceptance of Prosecutor's Peremptory Strike Suffices as Adequate Batson Ruling

Messiah v. Duncan, Docket No. 04-5311-pr (2d Cir. Jan. 19, 2006) (Cabranes and Sack) (Jacobs, concurrence): The Circuit rejects a § 2254 petitioner's Batson challenge to his state murder conviction. Petitioner Messiah claimed principally that the trial judge failed to rule on his Batson challenge with respect to the prosecutor's strike of an African-American juror named Woodbury. The record showed that at the first round of jury selection, the prosecution used peremptories against 5 panelists, including Woodbury. Defense counsel objected, claiming that the striking of Woodbury was racially motivated. The court then asked the prosecutor to explain why he struck Woodbury, and he responded that he removed Woodbury because he was a social worker and had a wife who worked for a law firm. After a brief exchange between defense counsel and the court on a somewhat unrelated topic, the court announced, "That's five, five by the People," and moved on with jury selection.

The Circuit concluded that on this record, the trial court sufficiently ruled on Messiah's Batson claim. The third step of the "BatsonThree Step," Op. 10, "requires a trial judge to make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances." Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). This generally "requires that the trial judge explicitly adjudicate the credibility of the non-moving party's race neutral explanation for peremptorily striking potential jurors." Id. However, a judge need not engage in "a talismanic recitation of specific words in order to satisfy Batson," Galarza v. Keanne, 252 F.3d 630, 640 n.10 (2d Cir. 2001), and "must simply make clear whether he credits the non-moving party's race-neutral explanation for striking the relevant panelist." Op. 16.

The Court thus concluded that an "unambiguous rejection of a Batson challenge will demonstrate with sufficient clarity that a trial court deems the movant to have failed to carry his burden to show that the prosecutor's proffered race-neutral explanation is pretextual." Op. 17. Although the "prefer[ence]" is for the "trial court to provide express reasons for each credibility determination" at the 3rd Batson stage, "the trial court is not compelled to make intricate factual findings in connection with its ruling in order to comply with Batson." Id. Thus, "[a]s long as a trial judge affords the parties a reasonable opportunity to make their respective records, he may express his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a clear rejection or acceptance of a Batson claim." Id. And reading the trial judge's statement that "That's five, five by the people," to mean that he accepted all five of the prosecution's strikes (including that against Woodbury), the Court rejected petitioner's argument.

Judge Jacobs concurred in the result, but did not join the majority opinion because he believes that a trial judge must "explicitly adjudicate the credibility of the non-moving party's race neutral explanations for peremptorily striking potential jurors" at the 3rd Batson stage, Concurrence 2 (emphasis in original), and that this particular judge's barebones acceptance of the prosecution's peremptories did not satisfy this standard. Judge Jacobs concurred in the dismissal of Messiah's § 2254 petition, however, because he found that defense counsel "failed to object to the prosecutor's non-discriminatory rationale, and thereby failed even to precipitate a step-three Batson adjudication under New York law." Id.

In People v. Allen, 86 N.Y.2d 101, 111 (1995), the New York Court of Appeals held that "the ultimate burden of proof [borne by the party claiming a violation of Batson] is not satisfied if he raises no claim of pretext" after the adverse party "proffers a race-neutral reason for the relevant strike at step two of the Batson inquiry." Op. 12. A similar rule exists in this Circuit for federal trials. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) ("Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.").

Judge Jacobs explained that on this record, Messiah failed to abide by Allen's "preservation" requirement because defense counsel did not directly respond to the prosecutor's race-neutral explanation for striking Woodbury. His petition should therefore be dismissed on this ground.

Wednesday, January 18, 2006

Alien Smuggling Conviction Upheld

United States v. Kim, Docket No. 05-1605-cr (2d Cir. Jan. 18, 2006) (Calabresi, Parker, Wesley) (per curiam): The Circuit affirms Kim's conviction for smuggling aliens into the United States (from Canada) "for the purpose of commercial advantage or private financial gain," rejecting his sufficiency challenge to the jury's verdict. Kim's principal argument was that the evidence was insufficient to show that he committed the offense for the purpose of financial gain because "the Government failed to adduce any evidence that [he] received, was promised or indeed asked for any money or anything of value for his part in the [smuggling] operation." Op. 5.

The Court rejects this argument on the ground that the evidence showed that each of the other 3 participants in the smuggling operation "either had received or expected to receive some sort of financial gain." Op. 5. In light of this evidence, the Court concludes, "a rational jury could certainly infer that a similarly situated defendant working as a smuggler for the same group did so for the purpose of commercial advantage or financial gain." Id.

Two minor curiosities: (1) Why would anyone want to be smuggled from Canada to the U.S. -- isn't the exodus now the other way? (2) The "financial gain" expected by one of the other conspirators was a promise by the ringleader "to show him where he could buy lobsters at a reasonable price in Nova Scotia." Op. 5.

Hmm. Maybe cheap lobsters are harder to find in NOVA SCOTIA than one might think. Now, if the promise were to show where a rare half-blue lobster could be bought on the cheap, we might understand . . . .

Friday, January 13, 2006

Circuit Closed Monday, but the Met Is Open

Well worth a look; some say it compares to Leonardo's "La Gioconda". At the Met until March 2006.

Never Mind -- Good Anti-Harris Dicta Eliminated in Amended Opinion

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Amended Jan. 13, 2006) (Sotomayor, Meskill, Kaplan (by desig'n)): When the Court issued the original version of this decision last week, we pointed out that it included dicta seemingly undercutting the Supreme Court's decision in Harris v. United States, 536 U.S. 545 (2002). (Click here for our earlier discussion). As the Court originally stated, "So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant's Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment." Op. at 4.

Alas, that anti-Harris dicta is no more. The Court today amends its decision to clarify that when it refered to "a mandatory minimum sentence," it really meant "a mandatory minimum sentence that simultaneously raises a corresponding maximum." Op. at 2 (emphasis added). This language brings Sheikh in line with the Circuit's earlier decision in United States v. Gonzalez (click here for our discussion), holding that a fact that trigger a mandatory minimum that also raises a corresponding maximum must be proved to a jury or admitted by the defendant. This distinguishes it from Harris, in which the relevant fact (found only by the judge) triggered a mandatory minimum but did not alter the statutory maximum.

Friday, January 06, 2006

Martha Stewart Conviction Upheld

United States v. Martha Stewart and Peter Bacanovic, Docket Nos. 04-3953(L) (2d Cir. Jan. 6, 2005): Yet another reminder of the White Album's timelessness:

Don’t forget me martha my dear
Hold your head up you silly girl look what you’ve done
When you find yourself in the thick of it
Help yourself to a bit of what is all around you
Silly girl.

Martha Stewart's troubles began when she helped herself to a bit too much information regarding Sam Waksal's sale of his ImClone stock. And when she found herself in the thick of an SEC investigation into the questionable timing of her sale of that stock, she (allegedly) concocted a ridiculous story instead of just telling the truth. We all know the end result.

The Circuit today affirms her conviction in a 74-page opinion rejecting each argument raised by Stewart and co-defendant Peter Bacanovic. Having labored through the well-reasoned opinion, we now know why EIGHT attorneys were required for Martha's appeal (poor Peter could only manage five for his): No stone was left unturned by these zealous advocates, alas to no good end.

The flood of commentary on the opinion has already began (see White Collar Prof's discussion here and Professor Berman's comment here) and more are sure to follow. For that reasons, and because it is now near quittin' time on friday, we will say no more.

Immigration Issues in the Criminal Context

Our colleague Steve Sady over at the Ninth Circuit Blog has once again written a great resource for criminal defense lawyers -- this time concerning immigration-related issues that arise in criminal cases. (Click here for Steve's discussion). Steve focuses in particular on how to use the Supreme Court's decision in Leocal to fight the Government's aggressive and continuing effort to expand the definition of "aggravated felony." Steve also provides information on and links to immigration-law resources for the criminal defense lawyer.

For those who finds immigration law to be a realm of poorly drafted statutes, incoherent regulations, and unprincipled decisions, Steve's discussion is well worth a look.

Thursday, January 05, 2006

A Curious Decision Containing Excellent Anti-Harris Dicta

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Jan. 5, 2006) (Meskill, Sotomayor, Kaplan (by desig'n)): We were puzzled by why the Court decided to publish this very short opinion, in which the Court rejects the defendant's claim that "the district court violated his [Fifth and Sixth Amendment] rights by enhancing his sentence on the basis of a fact -- the loss amount -- not alleged in the indictment," even where the sentence did not exceed the statutory maximum for the offense of conviction. Our puzzlement stems both from the fact that this argument was essentially rejected in Booker, and the fact that the Court simultaneously issued an unpublished summary order rejecting other arguments raised by Sheikh -- thus evidencing a conscious choice to publish this decision on a well-settled issue.

Readers, if there are any, are invited to offer speculations as to the Court's motive. This Blog's best guess is that the Court felt it necessary to address the indictment issue as it relates to Booker, though that seems an argument long lost.

Another guess is that Judge Sotomayor so dislikes the Supreme Court's decision in Harris -- holding that a mandatory minimum sentence can be triggered by judge-found facts -- that she decided to inject some anti-Harris dicta into this simple case. There are two key passages, one in the opinion's introductory paragraph and the other in its concluding paragraph:

"[We] hold that, after United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), district courts may continue to calculate Guidelines sentences and sentence defendants based on facts not alleged in the indictment, as long as those facts do not trigger a mandatory minimum sentence or increase the penalty beyond the prescribed statutory maximum sentence, without violating the Fifth and Sixth Amendment."

"So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant's Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment."

Op. at 2 & 4 (emphases added). Advocates faced with a Harris issue should pounce on this language!

Wednesday, January 04, 2006

A Good Decision on When a State Court's Finding of a Procedural Bar Is "Inadequate" to Preclude Federal Habeas Review

Monroe v. Kuhlman, Docket No. 03-3703 (2d Cir. Jan. 3, 2006) (Winter, Feinberg, Straub): This is somewhat of a rare bird: The Circuit concludes that the New York Court of Appeals improperly applied the state's own contemporaneous objection rule and thus that its finding of a procedural default on direct appeal was "inadequate" to bar federal habeas review of the same question. Monroe claimed that his right to be present at all critical stages of the trial, as well as his right to "judicial supervision" of the trial, were violated when the state trial judge allowed the jury to view previously admitted evidence outside the presence of the judge and the parties during adjournments of the trial. Unfortunately, trial counsel did not object to the procedure. These claims were rejected on direct appeal. The N.Y. Court of Appeals found that (1) Monroe's right to be present was not violated because the jury's viewing of the evidence was merely an "ancillary proceeding"; and (2) his right to judicial supervision could not be considered on the merits because no contemporaneous objection was lodged.

On habeas review, the district court (Judge Weinstein) found that (1) the state court's determination of the right-to-be-present claim was not an "unreasonable application" of federal law, and thus that the writ could not be granted on that basis. It also found that (2) the state court's determination that Monroe failed to lodge a contemporaneous objection and thus forfeited his right to appellate review of the judicial supervision claim constituted an "independent and adequate" state-law ground to support its decision on this claim, and thus that federal habeas review was barred as well.

The Circuit agreed with Judge Weinstein on point 1, but reversed on point 2, concluding that the New York Court of Appeals misapplied the state's own contemporaneous objection rule to bar review of the judicial supervision claim. Impressively canvassing New York case law over the last 70 years, the Court concluded that New York did not require a contemporaneous objection to preserve a claim that the defendant's right to judicial supervision of the trial had been violated. As early as 1934, for instance, the state's highest court held that "it was irrelevant under the circumstances that an objection was not made." And in 1985, the same court held that "even a defendant's consent could not overcome the right to judicial supervision during jury deliberations." (emphasis in original). Similar decisions were rendered in 1991 and 2000.

Because "[t]hese cases make clear that New York state courts do not typically require judicial supervision claims to be preserved," the Circuit concluded, the New York Court of Appeals' application of the contemporaneous-objection rule to bar review of Monroe's judicial supervision claim did not constitute an "adequate" state-law ground precluding federal habeas review. It thus remanded the matter to the district court for a consideration of this question on the merits.