Tuesday, February 28, 2006

W.D.N.Y.'s "Fully Retained" Inquiry Practice Not Inconsistent with CJA's Explicit Allowance for Mid-Case Appointment of Assigned Counsel

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant's mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.'s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is "fully retained" (rather than retained only for limited purposes) does not violate § 3006A(c)'s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) ("If at any stage of the proceedings, . . . the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel . . . and authorize payment [from CJA funds], as the interests of justice may dictate.").

Regarding the first issue, the Court ruled -- "in an issue of first impression in this Circuit" -- that in reviewing a district court's determination of financial eligibility for mid-case appointment under § 3006A(c), "a three-fold determination" is required. Op. 16. The Court must examine (1) whether the "district court conducted an 'appropriate inquiry' into the defendant's financial eligibility; (2) if it did, whether the court was "correct in its ultimate conclusion of financial eligibility"; and (3) if the court determined that the defendant was financially eligible for mid-case appointment, whether it erred in its weighing of the "interests of justice." Op. 16-17. And while "doubts as to eligibility should be resolved in a defendant's favor," the defendant bears the burden of showing that he is unable to afford representation. Op. 17.

The Circuit upheld the district court's denial of Parker's request, made on the eve of trial, that his retained counsel be appointed as CJA counsel under § 3006A(c) due to changes in his financial circumstances. It went through the aforementioned test, and concluded that the district court satisfactorily inquired into Parker's financial eligibility and that its determination that he was not eligible for assigned counsel was not clearly erroneous. The analysis is necessarily fact specific, and we will say no more.

The second issue concerned the W.D.N.Y.'s "fully retained" inquiry practice, in which a magistrate judge or a district judge demands an explicit acknowledgment from retained counsel at an early stage of representation that s/he has been retained by the defendant for the duration of the proceedings, and not merely for a particular stage of the case (e.g., for bail or for litigating a suppression motion) . Parker argued that the W.D.N.Y.'s practice essentially foreclosed the possibility of mid-case appointments, as provided for by § 3006A(c), and "shift[ed] all of the risk of the defendant's inability to pay to the defense attorney." Op. 29.

In response, the W.D.N.Y. (represented by pro bono counsel) acknowledged that the purpose of its practice was to discourage partial representation -- and mid-case appointments -- but that the practice was not inconsistent with § 3006A(c) because mid-case appointments are still made when the statutory standards are satisfied.

The Circuit bought the W.D.N.Y.'s argument, agreeing that the "fully retained" inquiry was not inconsistent with § 3006A(c)'s explicit allowance for mid-case appointments. The Circuit noted, among other things, that the W.D.N.Y. has in fact made mid-case appointments in several cases and that Parker "adduced no evidence of a W.D.N.Y. pattern or practice of automatically denying mid-case appointment[s]." Op. 38. The Court also went on at length about how this practice is consistent with an attorney's ethical obligations, assisted in the prevention of abuses of CJA resources, and discouraged the use of partial representation. Op. 35-42.

The Court upheld the practice, however, only by taking much bite out of it. As the Court explained, "the fact that defense counsel has stated that he or she is 'fully retained' at an initial appearance cannot automatically preclude the possibility of mid-case appointment." Op. 30. And while some W.D.N.Y. cases had suggested that once retained counsel acknowledged his or her "fully retained" status, mid-case appointments would be allowed only when "sufficiently unusual and extenuating" circumstances are found, Op. 34 n.20, the Circuit rejected this narrowing language as incompatible with § 3006A(c). Id. Rather, "in deciding whether to authorize CJA appointments under § 3006A(c), a magistate judge or district court need [only] find . . . [that defendant is financially unable to pay for counsel and that] the 'interests of justice'" so demand. Id. It is hard to see what is left of the W.D.N.Y.'s "fully retained" inquiry given the Circuit's conclusion that this practice "is compatible with the authorization of CJA appointment under § 3006A(c), as long as mid-case appointment is permitted if the defendant is financially eligible and the 'interests of justice' dictate." Op. 42 (emphasis added).

Rehearing Denied in Challenge to BOP Good-Conduct Time Calculation

Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig'n)): The Circuit denies Sash's petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog's discussion), the Circuit upheld as "reasonable" the BOP's odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a "prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment." While Sash read the statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP read the same to mean that Sash should receive up to "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). The Circuit sided with the BOP and, among other things, refused to apply the rule of lenity to the admittedly ambiguous law because "the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed."

In his rehearing petition, Sash (represented by David Lewis of this Office) argued that the Panel erred in concluding that "the calculation of sentencing credit is not 'criminal' for purposes of the rule of lenity." Op. 3. Among other things, Sash pointed out that "this holding contradicts Supreme Court precedent establishing that such calculations are criminal for purposes of an ex post facto analysis." Id.; see Lynce v. Mathis, 519 U.S. 433, 439 & n.12 (1997).

The Circuit rejects this argument after concluding that what may be considered "criminal" for purposes of ex post facto analysis is broader than what may be considered the same for determining whether the rule of lenity should be applied. "There are good reasons to treat the ex post facto doctrine as more expansive than the rule of lenity," the Court explained, because while "both are concerned with notice and fair warning . . . , the two rules have different purposes." Op. 5. While "[t]he rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving a 'grievious ambiguity or uncertainty in the language and structure of the statute' . . . , in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties, . . . the ex post facto doctrine concerns situations in which the legislatures give adequate notice, but then affirmatively changes its instructions in a way that disadvantages the defendant." Op. 5-6. In short, while "the rule of lenity deals with notice that is inadequate, [] the ex post facto doctrine deals with notice that turns out to be affirmatively and harmfully misleading." Op. 6.

The "ex post facto doctrine is concerned not just with notice, but with the inherent injustice associated with retroactivity itself." Id. And according to the Court, there is "a greater potential for unfairness when a legislature changes the law pertaining to a criminal offender's sentence than when the legislature merely leaves a question open for future regulation by an administrative agency." Op. 8. This difference, in turn, yields an appropriately broader reading of what is "criminal" for purposes of determining whether the ex post facto prohibition has been violated than for determining whether the rule of lenity applies. Op. 7. As the Court concludes, "Because the inherent injustice associated with retroactivity is not present in the context of the rule of lenity, the rule of lenity is more narrowly focused than the ex post facto doctrine and should be more narrowly applied." Op. 6.

Monday, February 27, 2006

Habeas Granted: State Trial Court Erred in Excluding Defendant's Mother and Brother from Courtroom during Undercover's Testimony

Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court's denial of Rodriguez's § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez's 6th Amendment right to a public trial when it excluded his mother and brother from the courtroom during the testimony of the state's sole witness -- an undercover cop who claimed to have purchased drugs from Rodriguez in this buy & bust case -- without any specific evidence showing that the relatives posed a danger to the undercover's safety or future effectiveness. Even more: The Court found a 6th Amendment violation even though the trial judge had proposed the alternative of allowing his relatives to remain in the courtroom if they agreed to sit behind a screen that would shield the undercover from their view. Rodriguez rejected this proposal at trial, claiming that the presence of the screen would prejudice him in the eyes of the jury (as it implied his dangerousness).

The essential facts are simple. To support the closure sought by the prosecution, the undercover claimed that he continued to work undercover in the Bushwick area of Brooklyn (where the alleged sale occurred), had several long-term investigations, had several "lost subjects" (i.e., persons from whom he purchased drugs but who have not yet been apprehended), and had been threatened by drug dealers in the past. He claimed that closure of the courtroom was necessary because disclosure of his identity would compromise his safety as well as his future effectiveness as an undercover drug buyer.

The undercover also claimed that he feared the presence of Rodriguez's relatives in the courtroom, since they may retaliate against him or disclose his identity if they saw him working in the neighborhood in the future (the record showed that Rodriguez's mother lived within a few blocks of where the alleged sale occurred, and that his brother lived in a nearby neighborhood). No evidence supported these fears, however. And the undercover admitted that he did not know Rodriguez's relatives and had no particular reason to believe that they would harm him or disclose his identity.

On this record, the Circuit held, the state court acted unreasonably in excluding Rodriguez's family. Principally, the Court pointed to its cases holding that exclusion of the defendant's family is a particularly serious matter that "requires stricter scrutiny than exclusion of the public" and will be upheld only if "the exclusion of that particular relative is necessary to protect the overriding interest at stake." Op. 7 (citing Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003)); see also Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (same); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994). Relying on these cases, the Court held that while the undercover's testimony supported the exclusion of the general public, it was insufficient to justify the exclusion of Rodriguez's family.

As the Court explained, "any alleged threat posed by a family member to an undercover's safety or effectiveness must be established by more than mere speculation. Instead, the trial court must make a particularized inquiry into whether exclusion of the family member was necessary to advance an overriding interest." Op. 13 (emphasis in original). And in this case, "there was no particularized inquiry into whether Rodriguez's family posed any threat to the undercover's safety or effectiveness beyond the conclusory statements of the undercover." Op. 13. "In fact, the trial court made no findings with respect to the mother or brother. . . . And there was no indication that either [family member] was dangerous, knew of [the defendant's] criminal activity, or was familiar with any of his associates." Id. (emphasis in original).

The Court rejected the state's attempt to rely on the fact that Rodriguez's mother and brother lived near the location of the alleged sale, concluding that "[m]ere proximity is not enough to establish a threat to the undercover's safety or efficacy." Op. 14. And the Court quickly dismissed the trial court's alternative proposal of a screen, explaining that "our ruling that any type of closure excluding Rodriguez's family was improper here makes it unnecessary to address 'alternatives to closure' under Waller's third prong." Op. 17.

Normal Programming Will Soon Resume

This Blog now returns after a short vacation. We will catch up with the three or four criminal and habeas cases decided by the Court during our break -- none earth-shattering, on first glance -- in the next several days.

Friday, February 17, 2006

Six Level Enhancement, Based on Number of Fraudulent Documents, Not Clearly Erroneous

United States v. Dmitry Proshin, Docket No. 04-5308-cr (2d Cir. Feb. 16, 2006) (Kearse, Cardamone, Cabranes) (per curiam): Sometimes one reads a decision and wonders, "Why in the world did the Court decide to publish this?" This opinion is a good example. The Circuit upholds a 6-level enhancement under U.S.S.G. § 2L2.1(b)(2), concluding that the district court's factual determination that Proshin's crime (conspiring to produce, and producing, false identification documents) involved between 25 and 99 fraudulent documents was not clearly erroneous.

The opinion is fact-specific and breaks no legal ground whatsoever. The Court simply points out that although no evidence placed Proshin physically at the Brooklyn location where 27 fraudulent documents were found, ample evidence linked Proshin with the co-conspirator who operated out of that location. Op. 7-8.

Friday, February 10, 2006

Everything You Wanted to Know about Curtilage but Were Afraid to Ask

United States v. Titemore, Docket No. 05-1380-cr (2d Cir. Feb. 9, 2006) (Walker, Calabresi, Straub): In an opinion of little use to us city folks (and perhaps of only slightly greater relevance to our rural kin given its highly fact-specific nature), the Court rejects Titemore's effort to suppress evidence (a rifle) seized after a state trooper, standing near "a principal entrance to [Titemore's] home [after approaching it] using a route [through his property] that other visitors could be expected to take," saw it in plain view. After an encyclopedic survey of the law regarding "curtilage" (one that took us back to those dreamy law school days), see Op. 12-21, and a mind-numbing discussion of minutiae regarding the layout of Titemore's house and property, id. 5-9, the Court ruled that regardless of whether this area constitutes "curtilage" under the common law, Titemore had no reasonable expectation of privacy in this area under the familiar 2-part Katz test (that Government intrusions violate the Fourth Amendment only if, inter alia, the place invaded is one in which the defendant has a subjective expectation of privacy, and in which that expectation is "one that society is prepared to recognize as reasonable." 389 U.S. 347, 361 (Harlan, J., concurring)) . In sum, the Court held, "when a police officer enters private property for a legitimate law enforcement purpose and embarks only upon places visitors could be expected to go, observations made from such vantage points are not covered by the Fourth Amendment." Op. 23.

Wednesday, February 01, 2006

Circuit Affirms Limitation on Testimony by Grand Jurors and Rebuffs Government's Attempt to Remove Judge from 9/11-Related Case

United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig'n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin's pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah's perjury trial, and (2) rejects the Government's request to remove Judge Scheindlin from the case because of her alleged bias in favor of the defense. Much has already been said about the removal issue (see here and here for example), so this Blog will concentrate on the evidentiary ruling.

The essential facts are simple. Awadallah was arrested shortly after September 11, 2001, on a material witness warrant based on allegations that he knew and had contact with some of the 9/11 hijackers. Eventually, he was called before a grand jury in the SDNY and asked by the prosecutor (1) whether he knew someone named Khalid Al-Mihdhar (one of the hijackers on the plane that crashed into the Pentagon), and (2) whether certain handwriting in an examination booklet was his own. Awadallah denied knowing Khalid, and denied as well that the handwritten passage was by him.

The Government indicted Awadallah for perjury, claiming that he lied in making the two denials. Before trial, it became clear that Awadallah's defense would be that "any incorrect statements he may have made [before the grand jury] . . . were not knowingly made [but were] . . . the result of memory lapse, misunderstanding, exhaustion, confusion, and intimidation." Op. 9-10. Awadallah claimed, for instance, that he was physically abused by prison guards and otherwise mistreated during this time. [What nonsense -- this is America! A scurrilous accusation!]

The Government then told Judge Scheindlin that it wanted to call at trial certain grand jurors who would testify as to their subjective impressions of Awadallah's demeanor and appearance when he made the denials before the grand jury. Such testimony, it asserted, would rebut the defendant's claim that he did now knowingly make false statements. The judge denied the request on Rule 606(b) and Rule 403 grounds, and ruled that the Government could only elicit testimony from the grand jurors regarding "Awadallah's physical condition and the objective conditions surrounding his testimony." Op. 3.

The Government filed an interlocutory appeal challenging the evidentiary ruling, and also requested the Circuit to remand the case to another judge "to preserve the appearance of justice." The Circuit rejected both arguments.

Regarding the evidentiary issue, the Circuit ruled that Judge Scheindlin did not abuse her discretion in limiting the grand jurors' testimony under Rule 403 (and thus did not reach the Rule 606(b) issue). Regarding the probativeness prong of the 403 balancing, the Circuit pointed out that "the Government could [] elicit essentially the same testimony from other categories of witnesses, such as the court reporter, the interpreter, or [the AUSAs] who were present during the Grand Jury." Op. 14. The Circuit also doubted the Government's claim concerning the importance of the grand jurors' testimony, pointing out that "the Government has tried hundreds, if not thousands, of perjury cases without eliciting opinion evidence from a grand juror to prove knowledge." Op. 13 (noting only a single Eleventh Circuit case that mentions such testimony at trial).

And on the prejudice prong of the Rule 403 balancing test, the Circuit agreed with Judge Scheindlin that allowing the grand jurors to testify as to their subjective impressions of Awadallah's demeanor and appearance would result in unfair prejudice. First, a trial juror "would likely unduly identify with, and give unwarranted weight to the testimony of, a grand juror witness." Op. 15. Second, the introduction of "grand juror testimony is likely to confuse the different standards of proof that apply to a trial jury and a grand jury." Id. In sum, the Circuit concluded, Judge Scheindlin "acted well within the broad discretion afforded her when she concluded that permitting testimony by grand jurors regarding whether or not, in their opinion, the defendant's false statements were the product of confusion and/or intimidation potentially causes significant prejudice to the defendant because it could be interpreted as a grand juror giving the petit jurors advice on how to determine the central issue of the case." Op. 16.

The Circuit also rejected the Government's effort to remove Judge Scheindlin from the case. The Government claimed that she "(1) repeatedly acted in a manner that could be viewed as that of an advocate for the defendant, rather than that of an impartial arbiter; and (2) repeated issued rulings that could be viewed as indicating that she has prejudged the most significant issues in the case in favor of the defendant and against the Government." Op. 19. After canvassing the long procedural history of the case, as well as Judge Scheindlin's numerous rulings and decisions, the Circuit rejected both claims and remanded the case back to her for trial.