Friday, March 31, 2006

State Misdemeanor Plea Vacated: Record of Allocution Failed to Show Knowing and Voluntary Waiver of Trial Rights

Hanson v. Phillips, Docket No. 04-0940-pr (2d Cir. March 30, 2006) (Leval, Straub, Katzmann): An astonishingly good result for Mr. Hanson (and perhaps for thousands of fellow travelers in the New York State courts): The Circuit grants Hanson's § 2254 petition because the record of his state guilty plea (to a misdemeanor charge of criminal contempt in the 2d degree in an Orange County city court, for which he was ultimately sentenced to 15 days in the county pen and 3 years' probation) failed to "affirmatively disclose that [he] intelligently and voluntarily pleaded guilty," as required under Boykin v. Alabama, 395 U.S. 238 (1969). For those interested, the plea allocution is quoted in full at pages 3 to 6 of the opinion. It is undeniably bare bones -- not even close to the full Rule 11 colloquy required in federal court. And Boykin undeniably stands for the proposition that "the record on appeal must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily." Brady v. United States, 397 U.S. 742, 747 n.4 (1970).

The Court concluded that the state courts unreasonably applied Boykin in affirming Hanson's conviction and thus granted the writ even under AEDPA's deferential standard. The Circuit found "the record deficient in establishing both the defendant's understanding of the immensely important procedural step he was taking and that he was acting voluntarily. . . . Nothing in the record affirmatively discloses Hanson's awareness that he had the right to have his guilt determined at a trial and that by pleading guilty he was giving up that right. Nor does the record affirmatively disclose that Hanson voluntarily chose to plead guilty." Op. 17-18. Those interested in the nitty-gritties of the Court's application of the Boykin standard to Hanson's plea should consult pages 18 to 21 of the decision.

Interestingly, after reaching this conclusion, the Circuit spent several pages trying to assure the law-abiding public that its decision will not open a floodgate for similar claims. First, it repeatedly stated that "no particular form or script is required" and that "state courts have considerable leeway to establish a record in whatever reasonable manner they see fit," so long as Boykin's basic requirement (of a record affirmatively disclosing that the defendant made his plea intelligently and voluntarily) is met. Op.21-22. Second, the Court averred that Hanson's barebones plea was an anomaly even in the state system, stating "we are persuaded that it is the common and general practice of New York judges to engage pleading defendants in colloquies . . . that, though various in style, are sufficient to meet the minimal requirements imposed by the federal constitution." Op.23.

This Blog is not so sure, having seen a few skeletal state allocutions in our time. But what do we know -- like the Court, "our view of the wide expanse of New York pleading practice is necessarily limited." Op. 23. Unlike the Court, though, this defendant-friendly Blog hopes the Court's assessment of the likely effect of its decision is wrong -- open those floodgates!

The Circuit also denied the State's motion to dismiss Hanson's appeal under the fugitive disentitlement doctrine, and the opinion has an interesting discussion of the issue. Apparently, Hanson was tried on unrelated charges in state court, and fled before sentencing, while the appeal in the instant habeas proceeding was pending in the Circuit. He was apprehended within two months, however, and was then convicted of bail jumping in state court and sentenced to 1 1/2 to 4 years.

The Circuit refused to dismiss his appeal under these circumstances, concluding that because Hanson "is now in custody and has been prosecuted and sentenced for bail jumping, all of the justifications for disentitlement militate against dismissing this appeal." Op.11 (listing four justifications for fugitive disentitlement doctrine).

Credit Card Conviction Upheld

United States v. Goldstein, Docket No. 04-1689-cr (2d Cir. March 29, 2006) (Walker, Hall, Gibson (by desig'n)): Goldstein raises a host of challenges to his conviction for credit card fraud and his 70-month sentence. Only a few are worth mention (and barely so).

First, Goldstein argues that the trial court erred in instructing the jury about his good faith as a defense. While the court properly told the jury that good faith is a complete defense to the fraud charges, Goldstein claims that this correct statement was undermined when the court "added language that improperly required the jury to find that Goldstein's good faith was objectively reasonable." Op. 6; see Cheek v. United States, 498 U.S. 192, 203 (1991) (good-faith belief, as a defense, need not be objectively reasonable). The problematic language is the highlighted portion of the following instruction: "If the defendant actually believed that he was authorized to use the access devices and took reasonable steps to check out that belief, then the defendant acted in good faith." Op. 7 (emphasis in original). Because Goldstein failed to object below, unfortunately, appellate review was for plain error.

And the Circuit found no plain error. While acknowledging that Goldstein's claim "has some appeal" and that the highlighted phrase "certainly evokes objectivity," the Circuit concluded that he was not prejudiced by the likely error because "[t]aken as a whole, the charge appropriately interpreted the law of good faith." Op. 9. Among other things, "the very next sentence of the instruction contains a specific directive that Goldstein had no burden to prove his good faith." Op. 8. (How this statement undoes the damage of the erroneous one is unexplained). Additionally, "the jury was further instructed that it could not convict Goldstein . . . unless the government proved beyond a reasonable doubt that [his] conduct was calculated to deceive and that he intended to cause loss through his conduct." Op. 9-10.

Second, Goldstein claims that the court erred in not instructing the jury that it had to agree unanimously as to which access devices (i.e., credit cards) he used "to obtain anything of value aggregating at least $1,000." Op. 9. The statute of conviction, 18 U.S.C. § 1029(a)(2), criminalizes the fraudulent use of "one or more" access devices "during any one-year period" to obtain "anything of value aggregating $1,000 or more."

This raises a question of first impression in the Circuit. However, the First Circuit rejected a similar challenge in 2003, and the Second follows that decision here. There is no error, the Court held, because "the identity of the particular credit cards is not an element of the offense but instead is a fact used to prove an element. The statute's focus is on the amount of money people have lost through fraud rather than the number of people who have been defrauded." Op. 9. The identity of the credit cards is "merely a fact used to prove an element" and not an element in itself. Op. 10. Unanimity as to the identity of the cards is therefore not required.

There is also a Crawford challenge to the introduction of certain documentary evidence concerning complaints by customers of Goldstein's enterprise to their credit card companies, but the opinion does not provide enough information to evaluate the validity of the Court's conclusion that there was no Sixth Amendment problem because "the evidence at issue was not 'testimonial'" and in any event was not offered for its truth. Op. 15-16. (Sound familiar?)

Attempted Assault-2d under New York Law Qualifies as "Violent Felony" under ACCA

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig'n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a "violent felony" within the meaning of 18 U.S.C. § 924(e)(1) & (e)(2)(B), and thus can serve as one of the three required predicates triggering the 15-year minimum under the ACCA. The statutory language seems to fit, Op. 3-4, [but see "Comments" below] and Congress can enact dumb laws if it so wishes.

The Circuit also quickly rejects Walker's argument that his conviction should not be counted as an ACCA predicate because New York's own definition of "violent felony" (for purposes of its sentencing laws) does not include attempted assault-2d: "Congress chose to define 'violent felony' by reference to the elements of the offense of conviction rather than to the status of that offense within the relvant state law." Op. 4 (emphases in original).

Tuesday, March 28, 2006

Can a Host Consent to the Search of an Overnight Guest's Closed Luggage? Does Apprendi Require a Jury to Find Facts of an Affirmative Defense?

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):


This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and when their SUV was run off the road, Snype escaped while the partner was killed. The police eventually arrested the cooperator, got a warrant for Snype’s arrest, and arrested him at the apartment of a woman, a friend of someone Snype knew, where Snype had stayed overnight. Although the Circuit’s opinion does not give a full description of the police's entry of the apartment, it involved a forcible entry by a heavily armed SWAT team who handcuffed Snype and the woman and “raised the possibility” of putting the woman’s child in foster care while she was held in custody. The police saw on the floor Snype’s knapsack and bag as well as an open teller’s box from the bank, with bundles of cash visible inside. Ultimately the woman consented to a search of her apartment including the knapsack and bag, which contained additional evidence.

The defendant raised several issues: 1) that the consent was not voluntary, given the forcible nature of the entry and the police threat to take away the woman’s child; 2) that in any event, the woman did not have the authority to consent to the search of Snype’s bag; 3) that the forcible entry of the apartment based only on an arrest warrant was unconstitutional, and 4) that the consent was the fruit of that unlawful entry.

The Court found the consent voluntary based on the woman’s own testimony that she had known Snype only since the day before, that her consent was voluntary, that “she perceived” the entry and threats as being “way before” her consent, that calm had been restored before she gave consent, that she did not feel threatened by the officer’s presence or their threat to take away her child, and that she knew she was not required to give consent. It also found that the consent could extend to a search of Snype’s belongings although this seems substantially more doubtful; the Court’s reliance on cases in which a third party has “access to the area searched” and the like, hardly makes clear that, before the police arrived, the woman had any access or permission to open Snype’s bags or to consent to their search.

Snype argued in the alternative that the consent was the fruit of an unlawful entry of the apartment, since the police had only an arrest warrant, which was not adequate to enter an apartment that was not his home under Steagald v. United States. The Court assumed, without holding, that the entry was illegal; there is substantial authority that only the actual householder may raise the failure to get a search warrant, but, where the arrestee actually has an expectation of privacy in the area, there may be some doubt about the right rule. For much the same reasons as it found the consent voluntary, however, the Court found that the consent was not tainted by the search.

The trial error most worth mentioning is a Crawford error in admitting the plea allocution of a co-conspirator against Snype. The Court acknowledged, as it had to, the error, but found it harmless.

Because Snype was convicted in this case of a “serious violent felony” and had two prior “serious violent felonies,” he received, instead of a five-year maximum sentence under 18 U.S.C. § 371, a mandatory life sentence under 18 U.S.C. § 3559, the “three strikes” law. Snype’s arguments centered on an affirmative defense to the mandatory sentence, allowing him to escape its application if he could prove by clear and convincing evidence that no firearm was used in a robbery that was the instant or a predicate “serious violent felony.” Snype’s most substantial argument was that under Apprendi v. New Jersey, the finding that a firearm was used had to be made by a jury, not a judge. The Circuit rejected this claim essentially on the authority of cases such as Patterson v. New York, holding that the burden of proof of some affirmative defenses could be placed on the defendant. But Patterson was not a Sixth Amendment case, and the affirmative defense there was determined by the jury. Since the finding that a gun was used in the two predicate robberies as well as the instant offense was essential to the imposition of a mandatory lifetime sentence, rather than a five-year maximum, it seems clear under Apprendi that a jury had to make that finding. And, after Shepard v. United States, that principle applies to prior crimes as well, to the extent that the use of a weapon is not shown on the face of the record of the conviction.

Monday, March 27, 2006

Revocation Proceedings Exempt from Jury Trial and Beyond-Reasonable-Doubt Protections of the Sixth Amendment

United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court's decision to revoke Carlton's supervised release and resentence him to 25 months' imprisonment based solely on the court's own fact-finding, on a preponderance standard, that he committed a new crime. The outcome is hardly unexpected -- the Circuit has repeatedly refused to apply the Sixth Amendment implications of Apprendi, Blakely, and Booker to revocation proceedings in recent decisions. E.g., United States v. McNeil, 415 F.3d 273 (2d Cir. 2005).

The opinion is of interest only because it goes beyond citing precedent and attempts to offer a rationale for why the jury trial and beyond-a-reasonable-doubt protections do not apply at revocation proceedings. Indeed, the Circuit acknowledged that "some tension exists between § 3583(e)(3) (permitting judge to revoke on its own findings on preponderance standard) and Booker and its related cases," which bar the imposition of any punishment beyond that authorized by a jury's verdict (or the defendant's admissions). Op. 12; see id. 13 ("[T]he facts reflected in the jury verdict for Carlton's underlying offense could not possibly include those that formed the basis for his sentence for violating supervised release; a jury cannot find facts 'which the law makes essential to the punishment,' Blakely, 542 U.S. at 304, if those facts have not yet occurred.").

The tension is only apparent, however, because "a sentence of supervised release by its terms involves a surrender of certain constitutional rights and this includes surrender of the due process rights articulated in Apprendi and its progeny." Op. 14. The "constitutional rights afforded a defendant subject to revocation of supervised release for violation of its conditions are not co-extensive with those enjoyed by a suspect to whom the presumption of innocence attaches," the Court explained. Unlike the latter, a releasee possesses only "conditional liberty"; the "conditions placed on a defendant's liberty in supervised release encompass by implication the additional condition expressed in § 3583(e): that the defendant surrender his rights to trial by jury and to having accusations against him proved beyond a reasonable doubt." Op. 16.

Thursday, March 23, 2006

Counsel Must File Notice of Appeal if Client Requests, even if Appeal Waiver Exists

Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig'n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant's right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether an attorney is required to file a notice of appeal when requested by the client, even though the client entered into a plea agreement containing an appeal waiver provision that seemingly bars an appeal. Relying on the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Circuit held that, yes, a lawyer is indeed required to file a notice of appeal under such circumstances, and that it is per se ineffective assistance not to do so. The proper procedure is to file the notice of appeal and then -- if counsel determines that there are no non-frivolous issues for appeal (because of the waiver or for whatever other reason) -- to file an Anders brief requesting withdrawal from the case. See United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000).

A bonus is the opinon's discussion of the possibility that valid appellate issues may exist despite the waiver. The Court pointed out that "although waivers of appeal are enforceable in all but a few situations, important constitutional rights require some exceptions to the presumptive enforceability of a waiver." Op. 7. The Court then listed some examples, noting that "waivers are not enforceable 'when the waiver was not made knowingly, voluntarily, and competently . . . , when the sentence was based on constitutionally impermissible factors . . . , when the government breached the plea agreemeent . . . , or when the sentencing court failed to enunciate any rationale for the defendant's sentence.'" Op. 7 (quoting Gomez-Perez, 215 F.3d at 319).

Guidelines Enhancement Valid Despite Incorporating by Reference a Now-Repealed Statute

United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig'n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense "involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30)," because Roberts's firearm (a Tech 9 pistol) qualified as a "semiautomatic assault weapon" under § 921(a)(30) -- even though § 921(a)(30) had been repealed by the time of Roberts's sentencing. The Court upheld the sentence by reading the Guideline literally, and after noting that it was "aware of no authority that prevents Congress, or the Sentencing Commission acting under congressional authority, from incorporating by reference any definition they choose in the Sentencing Guidelines, whether or not that definition is contained in a currently operative provision of the United States Code." Op. 4-5. The Court also relied on the fact that § 2K2.1 has been amended twice since the repeal of § 921(a)(30) -- and "neither modification removed the Guideline's reference to the repealed § 921(a)(30)." Op. 4.

The puzzling aspect of the decision is its repeated reference to the fact that § 921(a)(30) was in effect when Roberts committed the offense, even if it was repealed by the time of sentencing. This Blog fails to see the relevance of this fact given the Court's reasoning. Are there lurking ex post facto concerns we do not see? Please, will someone enlighten this Blog?

Revocation Based on Hearsay Upheld Where Defendant Caused Declarant's Absence by Intimidation

United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams's supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime -- i.e., by shooting and then robbing one Ryan. The principal issue on appeal concerned whether the court erred in basing this finding upon hearsay evidence, since no eyewitness testified at the revocation hearing. The hearsay evidence consisted of testimony by an NYPD detective and by the probation officer, as well as a sworn complaint by Ryan, regarding conversations with Ryan in which Ryan identified Williams, on at least three separate occasions, as his assailant. Ryan also made several out-of-court statements denying that Williams was his attacker, however, and refused to testify against him.

The Circuit upheld the district court's finding, concluding that because Williams was responsible for Ryan's unavailability -- the evidence showed that Ryan was threatened by Williams's associates and feared reprisal if he appeared in court -- and because Williams had pleaded guilty to a misdemeanor in state court arising from the same incident (and admitted during his plea allocution that he "recklessly engaged in conduct which created a substantial serious physical physical injury to another person"), the district court did not err in denying Williams the opportunity to confront Ryan at the revocation hearing.

The Confrontation Clause of the Sixth Amendment does not apply at revocation proceedings. United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004). However, the Supreme Court has held that "minimum requirements of due process" in a parole revocation hearing include the right of the defendant "to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Rule 32.1(b)(2)(c) of the Federal Rules of Criminal Procedure enshrines this minimum requirement: the court must give the defendant "an opportunity . . . to question any adverse witness, unless the judge determines that the interests of justice does not require the witness to appear."

To deny a defendant the opportunity to confront, the district court must show "good cause." Op. 19. And in making that determination, the court "must balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay." Op. 19 (citing United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000)).

The Circuit had no trouble upholding the district court's reliance on hearsay under this balancing test. First, it concluded that Williams essentially forfeited his interest in confrontation because Ryan's absence was "the result of intimidation by the defendant." Op. 19 (citing United States v. Mastrangelo, 693 F.2d 269, 272-73); see also Fed. R. Evid. 804(b)(6) (out-of-court statement by unavailable declarant is "not excluded by the hearsay rule" when "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness"). Ample evidence showed that Ryan refused to come to court because of threats levied by Williams's associates and his general fear of Williams. Second, on the same reasoning, the Government had good cause not to force Ryan to appear at the hearing. Finally, Ryan's hearsay statements were reliable considering the circumstances under which they were made and given Williams's subsequent plea allocution in state court. Op. 21-23. Similarly, evidence showed that Ryan's contrary hearsay statements (exculpating Williams) were made when he feared reprisal by Williams.

Williams also argued on appeal that his sentence must be vacated because the district court erred in evoking concerns about "the seriousness of the offense" to justify the three-year sentence. This clever argument is based on the fact that 18 U.S.C. § 3583, which governs supervised release, lists certain subsections of § 3553(a) that a court is expressly required to consider in determining punishment upon revocation (indeed, § 3583(e) lists most of § 3553(a)), but omits Section 3553(a)(2)(A) (requiring a court to consider, among other things, "the seriousness of the offense").

The Circuit rejected this argument on two grounds. First, it interpreted § 3583(e) "simply as requiring consideration of the enumerated subsections of § 3553(a), without forbidding consideration of other pertinent factors." Op. 24-25. Second, it ruled that "§ 3583(e) cannot reasonably be interpreted to exclude consideration of the seriousness of the releasee's violation, given the other factors that must be considered." Op. 25. For instance, § 3583(e) explicitly requires the court to consider "the nature and circumstances of the offense" (§ 3553(a)(1)) and the need for the sentence imposed to "afford adequate deterrence" (§ 3553(a)(2)(B)) and to "protect the public from further crimes of the defendant" (§ 3553(a)(2)(C)). The Court thus concluded: "We cannot see how, in order to impose a sentence that will provide 'adequate deterrence' and protection of the public from 'further crimes of the defendant' in light of 'the nature and circumstances of the offense,' the [revocation] court could possibly ignore the seriousness of the offense." Op. 25-26.

Wednesday, March 22, 2006

Prosecutor Blunders, and the District Judge too, but All's Well, 'Cause Evidence Was Overwhelming

United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig'n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government's primary theory at trial was that Skelly and Gross, the principals of Walsh Manning Securities (a registered broker / dealer), engaged in a pump-and-dump scheme wherein they (and the registered reps they employed) "used manipulative techniques to artificially inflate the price of certain thinly-traded securities in which they held a substantial interest, and then used fraudulent and high-pressure tactics to unload the (largely worthless) securities on unsuspecting customers." Op. 2. This theory was, we are told, "amply supported by the evidence." Id.

Employing the "kitchen sink" mode of litigation so in favor at One St. Andrew's, however, the prosecutor threw in another theory of liability in his summation. Shifting gears entirely, the prosecutor told the jury that it could also convict the defendants based on the fact that when the company's registered reps recommended the stock to its customers, the reps failed to tell the customers that they were being paid "huge commissions for recommending . . . and selling that stock." Op. 3. "[T]that's fraud under the securities law," the prosecutor asserted. Id.

Not so. On the contrary, liability under a "material omission" theory exists only where the registered rep had a fiduciary relationship with the customer. Op. 4-5. "[N]o SEC rule requires the registered representatives who deal with the customers to disclose their compensation," the Circuit stated, and under the general anti-fraud provisions of the securities laws (under which the defendants were indicted), "a seller or middleman may be liable for fraud if he lies to the purchaser or tells him misleading half-truths, but not if he simply fails to disclose information that he is under no obligation to reveal." Op. 4.

In charging the jury, the district judge first correctly stated the law on this new theory. He told the jury that it could "only convict a defendant on a 'failure to disclose' theory if the broker had assumed a 'fiduciary duty' to disclose such information." Op. 5. This was a proper statement of the law. And while "there is no general fiduciary duty inherent in an ordinary broker / customer relationship," Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 940 (2d Cir. 1998), a fiduciary relationship can arise under particular factual circumstances. For instance, the Circuit has held that a broker has a fiduciary duty to a customer "where a broker has discretionary authority over the customer's account." Op. 6; see also Op. 5-6 (fiduciary relationship exists "between a broker and a customer with respect to those matters that have been entrusted to the broker").

The court then erred, however, in defining when such a duty can arise. The court "for reasons unclear from the record, limited the instruction on this point to a single sentence: 'One acts in a fiduciary capacity when the business which [sic] he transacts or the money or property which [sic] he handles is not his or for his own benefit, but is for the benefit of another person as to whom he stands in relation impl[ying] and necessitating great confidence and trust on the one part, and a high degree of good faith on the other part." Op. 7. This instruction was faulty, the Circuit found, because it "omitted the elements of 'reliance and de facto control and dominance,' which are required to establish a fiduciary relationship." Id.

But all's well and everyone can sleep soundly: The errors were of no moment because the defendant failed to lodge a proper objection to the charge and because, in any event, the evidence of guilt on the principal theory of liability advanced by the Government was (so we are told) overwhelming. Op. 8-9.

The Circuit also rejects the defendants' claim that the Government's alternative theory of liability constituted a constructive amendment of the indictment. This was because the indictment generally charged the defendants with "causing retail brokers employed by Walsh Manning . . . to employ a variety of fraudulent and illegal sales practices in order to induce customers to buy the securities," and this "general language was more than sufficient to encompass [both theories of liability] as well as to put the defendants on fair notice that all their practices used to promote the house stocks were included in the charge." Op. 9-10.

Monday, March 20, 2006

Quattrone Conviction Vacated, and Case Remanded for Retrial before a Different Judge

United States v. Frank Quattrone, Docket No. 04-5007 (2d Cir. March 20, 2006) (Wesley, Hall, Scullin (by designation)): We have not yet had time to read the decision and will do a full summary later. Even a quick look, though, confirms a big (though not total) victory for the defense: The Circuit (1) vacates Quattrone's conviction because of errors in the district court's charge to the jury (the charge failed to tell the jury that it had to determine that Quattrone knew that the documents he was asking to be destroyed were the same ones sought by the Government, thus "remov[ing] the defendant's specific knowledge of the investigatory proceedings and the subpoenas / document requests from the obstruction equation" and "leaving a bare-bones strict liability case") ; (2) rejects Quattrone's claim that the evidence was insufficient to sustain the verdict; and (3) remands the case to a different judge (i.e., someone other than Judge Owen) for retrial "in the interests of justice." More later . . . .

Update: Having now read the decision, this Blog will rely on the commentary provided by the White Collar Crim Prof Blog (click here), which ably summarizes the relevant facts and legal conclusions. I add only my personal observation that (1) if the Circuit's factual recitation of the trial evidence is accurate, its conclusion that the evidence was sufficient to sustain the verdict is correct, given the low threshold for sustaining jury verdicts against sufficiency challenges (there is quite a bit of smoke, and whether there's a fire is for the jury to determine); (2) even if a crime was committed, it was a tiny one -- one hardly worth the expense and effort of another trial; and (3) how could the learned district judge -- and the experienced Government lawyers -- have so badly misunderstood a simple issue regarding mens rea?

Sunday, March 19, 2006

Prison Inmate Does Not Forfeit Attorney-Client Privilege

United States v. DeFonte, Docket No. 06-1046-cr (March 14, 2006) (before Jacobs, Wesley, C.J.J., Koeltl, D.J.)

This interesting per curiam decision holds that a prison inmate retains her attorney-client prvilege with respect to a diary that she maintained while incarcerated.

Facts: Defendant DeFonte, a (former, presumably) correction officer at the MCC, was on trial for crimes that he was charged with having committed in the course of his employment. One of the witnesses against him was to be an inmate, Francia Collazos. Shortly before trial, the government learned, and ultimately obtained possession of, a diary that she maintained in her cell containing her writings about incidents inovling DeFonte and conversations with her own attorney and the prosecutors. When DeFonte's attorney learned of the diary, he requested that it be turned over to the defense as 3500 and Giglio material. Collazos moved to intervene. She sought a protective order claiming that those writings were covered by the attorney-client privilege. The district court (Batts, J.) ordered that the diary be turned over, holding that it was not privileged because Collazos had no expectation of privacy in the contents of her cell. Collazos moved for stay, and the case was heard by the Court of Appeals on its motion calendar on the first day of trial. The opinion was filed that same day. (It is reassuring that the Court can issue published opinions with alacrity when the need presents itself.)

Holding: The Court of Appeals vacated the district court's order and remanded the matter for a hearing.

First, the Court held that inmates retain the attorney-client privilege, despite their almost total lack of Fourth Amendment rights. However, the Court concluded that the entries in Collazos' diary fell into different categories, with differing potential applications of the privilege, and that a hearing would be necessary to fully resolve the issues.

The first set of entries, Collazos' memorializations of her private conversations with her own attorney, were clearly covered by the privilege. Collazos asserted that she never consented to the diary's being taken from her possession, and there was no evidence that she either shared or intended to share those entries with anyone else. However, the Court noted that the privilege could be deemed waived if evidence emerged at the hearing that Collazos "treated the notes in question in such a careless manner as to negate her intent to keep them confidential."

The second group of entries consisted of recordings of events in Collazos' daily life, including incidents with DeFonte, and discussions with prosecutors, which she claimed were made for the purpose of later discussions with her attorney, though the writings themselves were not provided to the attorney. For these entries, the Court held that the privilege might still apply: "an outline of what a client wishes to discuss with counsel -- and which is subsequently discussed with one's counsel -- would seem to fit squarely within our understanding of the scope of the privilege." Thus, for these entries, the question to be resolved at the hearing is whether Collazos actually communicated the contents of these entries to her attorney.

Comment: This case arises from a highly unusual set of facts that is not particularly likely to recur, since it is doubtful that large numbers of prision inmates maintain a diary at all, let alone one that would reveal that the inmate is cooperating with the government. More intriguing, however, are the implications of this decision for an inmate's telephone conversations with the attorney, which are recorded (inmates implicitly consent to this by virtue of a notice posted by the phones warning them that all calls will be recorded) and in-person meetings with the attorney which the government, under some limited circumstances, has the authority to record without consent.

Monday, March 13, 2006

Slow Times at the Circuit (at least for Its Criminal and Habeas Docket)

Jackson v. Attorney General, Docket No. 05-2766-pr (2d Cir. Feb. 8, 2006) (Walker, Winter, Jacobs): This short habeas-related decision was rendered on February 8, 2006, but not posted on the Circuit's website until March 10th. No harm -- the Court simply holds that a Certificate of Appealability ("COA") is required to appeal a district court's denial of a Rule 59(e) motion (seeking to alter or amend a judgment) when the underlying judgment is one that denies or dismisses a § 2254 petition. The Court relied largely on its earlier decision in Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), which held that a COA is required to appeal from the denial of a Rule 60(b) motion (seeking relief from a judgment) when the underlying judgment is a denial or dismissal of a habeas petition.

Friday, March 03, 2006

Mayor's Conviction Upheld -- But Did He Really Act under "Color of Law"?

United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall): Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone's civil rights "under color of [] law") (the "civil rights counts"); (2) fourteen counts of 18 U.S.C. § 2425 (using a "facility of interstate commerce" to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the "phone counts"); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed -- and rejected -- in an unpublished summary order): (1st) that the § 2425 convictions must be vacated because all of the underlying phone calls were intra-state ones (i.e., both Giordano and the other party were within Connecticut when the calls were made); (2nd) that the evidence was insufficient to support his conviction on the § 242 counts, since he did not act under "color of law" when he procured sexual services, by paying a prostitute named Jones, from Jones's 9 year old daughter and 11 year old niece; and (3) that the district judge, who had authorized the wiretap applications that uncovered Giordano's sordid misdeeds, should have recused himself from acting as the judge at trial. The Circuit rejects all three arguments -- all of which are, apparently, issues of first impression in this Circuit -- and affirms the conviction; Judge Jacobs dissents -- correctly, we believe -- on the 2nd issue.

The essential facts are thus. Federal agents were investigating Giordano, then Waterbury's mayor, in an unrelated corruption investigation (that's Connecticut for you). They obtained a wiretap authorization on his phone from Judge Nevas (who later acted as the trial judge). In the course of listening to Giordano's phone conversations, agents learned that Giordano regularly procured sex from Jones -- and that he had done so even before becoming mayor. Agents also learned, eventually, that Giordano paid Jones to bring along her 9 year old daughter and 11 year old niece. The children performed oral sex on Giordano on numerous occasions, including a few times in the mayor's office and once in the mayoral limo. All of the phone calls setting up the meetings between Giordano and Jones and the children were made within the state of Connecticut.

Giordano never coerced Jones or the children into having sex with him; he paid Jones for the services. Nor did he explicitly use his status as mayor to facilitate these acts. However, he told Jones and the children that they should never tell anyone about their activities, because "I could go to jail" and "[Jones] could go to jail." At trial, the children testified that they did not refuse Giordano's advances, or report him to the authorities, because they thought that he, as the mayor, controlled the police and would put them in jail if they did.

As noted, the jury convicted Giordano on two civil rights counts; fourteen phone counts; and one conspiracy count. The judge imposed a sentence of 444 months on each of the civil rights counts, and 60 months (the statutory maximum) on the remaining fifteen counts, all to run concurrently.

First, the Circuit rejected Giordano's claim that the evidence on the phone counts was insufficient because he made no inter-state calls. The Court ruled that simply using a telephone is sufficient to satisfy § 2425's jurisdictional requirement, since the statutory language proscribes using any "facility of interstate commerce" for the stated illicit purpose. Op. 13-15. The Court also rejected Giordano's alternative claim that such a reading of § 2425 would render it unconstitutional under Lopez v. United States, 514 U.S. 549 (1995). As the Court explained, this statute "is clearly founded on the second type of Commerce Clause power categorized in Lopez, that is, the power to regulate and protect the instrumentalities of interstate commerce, 'even though the threat may only come from intrastate activities.'" Op. 17 (quoting Lopez, 514 U.S. at 558).

Second, the Court rejected Giordano's claim that, even if he did what the Government said he did, the evidence was insufficient to show that he acted "under color of [state] law". As the Supreme Court has long held, the "color of law" language requires the Government to prove a "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 399 U.S. 299, 326 (1941) (emphasis added); see also Screws v. United States, 325 U.S. 91, 111 (1945) ("'under color of law' means under 'pretense' of law"); Op. 20 (person acts "under color of law" when he or she "employs the authority of the state in the commission of the crime"). And, Giordano pointed out, he did not use his mayoral status to commit the charged crimes. Indeed, his relationship with Jones preceded his election as mayor. He simply paid her to have sex with him, and then paid her to allow him to have sex with her daughter and niece.

The Court rejected this claim, relying on the theory that Giordano's "threats" to Jones and the children that they would be in big trouble and "go to jail" if they disclosed their activities with Giordano, satisfied the "color of law" requirement. Op. 24. As the Court explained, the jury could have found, based on the evidence adduced, that Giordano "threatened his victims by invoking a 'special authority' to undertake retaliatory action, and . . . used his authority to cause the victims to submit to repeated abuse . . . by causing [them] to fear that he would use his powers to harm them if they reported the abuse." Op. 24. Referring to one child's testimony that Giordano repeatedly mentioned his connection with the police and her understanding that this meant that "he had control of what the police does," the Court concluded that "this evidence was sufficient to satisfy the Government's burden of showing that Giordano invoked 'the real or apparent power' of his office to make the continuing sexual abuse possible." Op. 25.

Finally, the Court quickly rejected Giordano's claim that Judge Nevas should have recused himself as the trial judge because he approved of the earlier wiretap applications: "The authorization of a wiretap under Title III does not 'evidence the degree of favoritism or antagonism required' to necessitate recusal under § 455(a)." Op. 28 (quoting Liteky v. United States, 510 U.S. 540 (1994)).

Judge Jacobs viogorously dissents on the second point, arguing that nothing showed that the criminal acts were "made possible only because [Giordano] [was] clothed with the authority of state law," as required under Classic. Op. 30. As he points out, it is "not enough for the government to show that abuse of government power was a contributing cause or background influence in the deprivation of the victim's rights; it must be the but-for cause." Id. (emphasis added). And the evidence in this case -- very far afield from from the typical § 242 prosecution involving, e.g., excessive use of force by prison guards or by police officers during an arrest (e.g., the Rodney King case) -- did not show that Giordano's position as mayor was the "but-for and indispensable means of the child abuse." Op. 31. Rather, the evidence showed that the same misconduct could have occurred had Giordano been an architect or plumber: He simply paid someone for sex. In Judge Jacob's view, "the sole cause of the abuse was that a sexual predator had access to sufficient cash (and a willing facilitator) to purchase the sexual services of children. Analytically, there is no distinction between the supposed threat in this case and any instance in which the customer of a prostitute demands confidentiality . . . ." Op. 32. Giordano did not use his power to "cause the victims to submit, . . . to create the opportunity to be alone with the victims and coerce them, . . . or to assert special authority for the misconduct or to undertake retaliatory action." Op. 33.

Judge Jacobs uses a hypothetical to show that not every illegal, unenforceable contract entered into by "the mayor of a small city [who] commands a police force" is thereby "made possible because of his office -- i.e., under color of law." Op. 32-33. The hypo involves a mayor who makes an illegal bet on horse races with his bookie:

"If the mayor hits the trifecta, his bookie may be most unhappy about paying, and may appreciate the mayor's power to get him arrested; a warning to keep quiet about the illegal transaction would be iimplicit whether or not recited; and the fact of the office would be evident. Still, it cannot seriously be argued that a bookie's payment under those circumstances would be extorted under color of law. The situation is indistinguishable from Giordano's, as the government all but conceded at oral argument."

Op. 33.

This Blog shares Judge Jacobs's skepticism about the sufficiency of the civil right counts. However, we take issue with his claim that this "is no small thing" as applied to Giordano's case. Judge Jacobs asserts that "Giordano's sentence is thirty-seven years (444 months); without conviction on the civil rights counts, Giordano['s] federal sentence would be five years." Op. 29.

This is clearly misleading. Although the sentence, as it currently stands, involves a 444-month sentence on the two civil rights counts and concurrent 60-month sentences on the fifteen phone counts, surely the sentencing judge would not simply keep the status quo on the phone counts were the civil rights counts vacated. Even without the § 242 counts, the same 37-year sentence can be achieved simply by "stacking" many of the § 2425 counts (i.e., by running the 60-month sentences consecutively rather than concurrently).

Wednesday, March 01, 2006

Sentence 2x Greater than Guidelines Range Upheld as Reasonable

United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough "had a relatively uninterrupted string of criminal activity and arrests" from 1998 to 2002) and "seriousness of the offense" concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer "was about to do bad with it") cited by the district court to justify the sentence. No new legal ground is broken on either point: (1) the Circuit had already rejected an Ex Post Facto challenge to application of the Booker remedy in United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) (click here for our discussion of Vaughn); and (2) to our knowledge, the Circuit has never struck down a sentence as unreasonable under Booker in a published decision.

If anything, the decision simply confirms the Circuit’s highly deferential posture toward district court sentences under reasonableness review. E.g., Op. 6-7. (The decision also contains good language repeating the Circuit's view, announced in Crosby, that it will not fashion "any per se rules as to the reasonableness of every sentence within an applicable guideline or the unreasonableness of every sentence outside an applicable guideline." Op. 7). While this may be bad news for defendants (like Fairclough) challenging above-the-range or within-the-range sentences on appeal as unreasonable, it will likely prove good news for those defending Government appeals of below-the-range sentences. And since both anecdotal and statistical evidence confirm that there are many more defendants in the latter category than the former -- at least in this Circuit -- the overall result, even if not ideal, may be a net positive for defendants.

P.S.: Click here for Professor Berman’s discussion of this case.