Sunday, April 30, 2006

The Mother of all Pyrrhic Victories

United States v. Wallace, Docket No. 03-1777 (L) (2d Cir. April 27, 2006) (Walker, Cardamone, Parker): The Circuit disposes of most of Wallace and co-defendant Thomas's challenges to their conviction and life sentences (imposed on the drug conspiracy and murder-during-a-drive-by-shooting counts) in a simultaneously issued summary order. In this published decision, the Court vacates one of two § 924(c) convictions, applying the rule adopted in United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001) ("[C]ontinuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct" amounts to a single unit of prosecution, and thus only one § 924(c) conviction is sustainable). The application of Finley to the facts of this case is questionable -- the predicates for the two § 924(c) counts were an arguably distinct drug conspiracy and a drive-by-shooting (committed after the unfortunate victim stole drugs from the defendants). But who are we to quibble; those interested in finding out whether the predicate offenses were indeed "so inseparably intertwined" as to trigger the Finley rule can consult pages 7-10 of the opinion.

Though the decision may be of use to future litigants, it is meaningless to Wallace and Thomas. Not only were they sentenced to life imprisonment on other, unaffected counts; even regarding the two § 924(c) counts (one of which must now be vacated), while the sentencing judge imposed a 10-year sentence on each because the weapon was discharged, see 18 U.S.C. § 924(c)(1)(A)(iii), he ran the sentences concurrently (a no-no under § 924(c)(1)(D)(ii), see Op. 11). The sole benefit to the defendants from their victory in the Circuit, therefore, is a $100 savings in the special assessment.

Thursday, April 20, 2006

DOJ Reverses Course: Government Agrees that Notice Is Required before Court Can Exceed Guidelines Range (whether via Departure or via 3553(a) Factors)

We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position -- directly contrary to its earlier view -- that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker. As the Government writes, "the sentencing court does have an obligation to provide prior notice before deviating from the Guidelines range on a ground that was not identified in the presentence report or by the parties. . . . [A] district court should provide notice to the parties when it is contemplating a sua sponte deviation (whether upward or downward) from the advisory Guidelines range." Letter at 1-2.

This was big news to us, since the Government has argued on several pending appeals that notice was required only when a court departs from the advisory range, and not when a court imposes a "non-Guidelines" sentence above (or below) the range. It is also somewhat unusual given that the only Circuit to have resolved this question in a published opinion -- the Eighth -- concluded that notice is not required if the court imposes a non-Guidelines sentence outside the advisory range. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005).

In our view, the Government's new position not only accords with the law (especially in light of the Supreme Court's reading of the earlier version of Rule 32(h) in Burns v. United States, 501 U.S. 129 (1991)), but also makes perfect sense from its "pro-Guidelines" perspective. If one wants the Guidelines to remain foremost (i.e., "presumptive") in the sentencing court's eye, as the Government obviously does, what better way to achieve that goal than to require the court to give advance notice of its intent to do so (as well as its reasons for doing so)? Such a requirement likely will have the effect of deterring some busy district courts from imposing non-Guidelines sentences. And since statistics indicate that more non-Guidelines sentences are of the below-the-range variety (rather than the above-the-range type), a reading of Rule 32 to require prior notice any time such sentences are contemplated will benefit the Government more than defendants in the long run.

NB: Please email me if you want a PDF version of the Government's letter.

Wednesday, April 19, 2006

Restitution Unaffected by Apprendi-Blakely-Ring-Booker

United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can't even make myself print it out, much less read it. (At least this week ...)

But sentencing fans can skip to page 104 of the opinion to see the Court reject, at long last, an Apprendi-Ring-Blakely-Booker challenge to the restitution order (which includes amounts not found by a jury or admitted by the defendant). The first two arguments proffered by the Court are plain bizarre -- non-sequiturs, really -- and the third is simply a repeat of the post-hoc rationale first invented in Fruchter (that the Apprendi rule does not apply to restitution because there is no "maximum" under the restitution statute).

Lifetime Supervised Release Upheld for Child Porn Offender

United States v. William Hayes, Docket No. 05-2321-cr (2d Cir. April 18, 2006) (Winter, Calabresi, Pooler): The Circuit upholds a lifetime supervised release term imposed upon Mr. Hayes, who pled guilty to transporting child porn in interstate commerce in violation of 18 U.S.C. § 2252A. That Hayes must first serve 151 months in prison and will be 68 years old by the time of his release did not require a different result. In upholding the sentence, the Circuit relied inter alia on (1) the policy statement in Section 5D1.2(b)(2) (recommending the statutory maximum term of supervised release where the defendant is convicted of a sex offense); (2) the fact that Hayes was convicted in state court of molesting a 12-year-old girl more than a year after the events underlying the federal case; and (3) a Congressional finding that sex offenders are far more likely to recidivate than other offenders, and that "recidivism rates do not appreciably decline as [sex] offenders age." Op. 4. Your tax dollars at work, ladies and gentlemen.

Wednesday, April 12, 2006

Evidentiary Hearing Required Where Government May Have Denied 5K1.1 Letter Based on Known Pre-Agreement Misconduct

United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig'n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government's refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, "Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], it would have been fraudulent to have induced a defendant's plea with a promise that the government already knew it was not going to keep." Id.

In this case, the record was unclear as to whether the Government's refusal to file a 5K letter for Doe was based on information it already possessed when it entered into the cooperation agreement. Of the 4 reasons proffered, 2 were clearly based on misconduct that the Government knew about when it entered into the agreement. Because it was unclear from the record whether the Government knew about the other 2 purported reasons before entering the agreement, the district court should have conducted an evidentiary hearing before denying Doe's request for specific performance. See Knights, 968 F.2d at 1487 (defendant need only make a "showing of bad faith" to trigger evidentiary hearing).

Wednesday, April 05, 2006

Misinformation to Immigrant at Deportation Hearing Causes Deprivation of Judicial Review, Invalidating Subsequent Reentry Conviction

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge's failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had been ordered deported and informed that he was not eligible for any form of relief from deportation. He appealed to the BIA claiming that the new law did not retroactively eliminate his eligibility for relief, but his appeal was dismissed; he was deported 20 months later. Within two years thereafter, the Supreme Court decided in essence that the defendant's argument had been correct, and that he had been entitled to consideration for relief from deportation. The defendant later reentered the country and was prosecuted on the basis that his reentry was illegal since it followed a prior (valid) deportation.

The Circuit held, following its prior decisions in Copeland, Sosa, and Calderon, that the misinformation the defendant had received, that he was not entitled to discretionary relief, had deprived him of the opportunity for judicial review of his deportation. It remanded for a determination whether he had been prejudiced by the denial of review, that is, whether he might have prevailed on a request for discretionary relief from deportation.

The Court rejected the argument made in Judge Raggi's dissent, relying on the Court's decision in Gonzalez-Roque, that the defendant had review on habeas corpus available to him and that he could have sought that review in the twenty months before he was deported. In Gonzalez-Roque, the defendant had been deported a mere 10 months after his decision became final and the Court had upheld his conviction. Here, the Court rejected the reliance on Gonzalez-Roque because there had been no evidence in that case that the defendant had affirmatively been misinformed about the possibility of obtaining relief. In this case, it held, the misinformation had been sufficient to deprive the defendant of the opportunity for judicial review.

Two points are worth making. First, the Court rejected the broader proposition that the Immigration Judge's failure to inform the defendant of the availability of habeas relief deprived him of the only available judicial review. The Court essentially relies on the fiction that even pro se immigrants (who often do not speak English) are aware of their rights to collateral review on the writ of habeas corpus. This seems wrong, and indeed is contrary to the notion in the immigration laws that the Immigration Judge facing a pro se litigant has more than the usual judicial duty of deciding which of two adversaries is correct; the IJ is thought to have some duty to protect the immigrant. Given this, and given the Court's own citation for the fact that the premise of its ruling is "unrealistic," one may wonder about the soundness of its result.

The second point is that the dissent seems to read too much into Gonzalez-Roque. So far as one can tell from that decision, the defendant did not argue that the events at his deportation proceeding deprived him of judicial review. Rather, he made the broader claim that Congress's elimination of direct review in the courts constituted such a deprivation, even though collateral review remained available. The Court's simple rejection of this broad claim provides no authority for the dissent's contention that the mere passage of 10 months' time after a final deportation order removes any impediment to judicial review caused by misinformation given the defendant by the government. Gonzalez-Roque spoke to the question whether the continued availability of habeas provided, generally, the opportunity for judicial review required by Mendoza-Lopez, and said nothing about the extent to which misinformation might constitute an actual deprivation in the individual case or that initial deprivation might be ameliorated by the passage of various amounts of time.

UPDATE: I just noted that it took the Court more than two years to issue this decision following argument and that the defendant will have served his entire sentence four months from now. Thus, the Court's delay in issuing its decision deprived him of any real possibility of relief from dismissal of his conviction. This is unfortunate at the least; the narrow issue on which the case was decided hardly warranted this kind of delay.

Tuesday, April 04, 2006

Crosby Redux: Circuit Clarifies Some Important Post-Booker Issues

United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig'n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court's conclusions are good from a defense perspective, some not so good. But there's a benefit to clarity all the same.

First, the Court finally explicitly holds that it possesses statutory authority to review the reasonableness of any sentence, even those falling within a properly calculated Guidelines range. (Fernandez received a sentence of 151 months, the bottom of the correctly calculated range). The Court explains that when a defendant challenges a sentence on appeal as unreasonable (either as to the process of its selection or as to its length), s/he "effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was 'imposed in violation of law,'" under 18 U.S.C. § 3742(a)(1). Op. 10. The Circuit's authority to hear the appeal thus derives from this statute. Id.

Second, the Circuit explicitly "decline[s] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable." Op. 12. This refusal arises from Crosby, in which the Court "expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness." Id. (citing Crosby, 397 F.3d at 115).

Unfortunately, what Judge Cabranes giveth, he also taketh away. Despite the Court's express refusal to adopt any presumptions on appellate review, and despite the laudatory sentiment that "the record as a whole [must be examined] to determine whether a sentence is reasonable in a specific case," Op. 13 (emphasis added), the opinion sneaks in some very bad, contrary language.

To begin, it repeats dicta from Rubenstein that "the Guidelines range should serve as 'a benchmark or a point of reference or departure." Op. 13 (quoting Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). Along similarly lines, the opinion remarks in a footnote that "[i]t was not error for [the district judge] to employ the Guidelines range as a starting point and then to determine whether the arguments presented pursuant to the § 3553(a) factors warranted 'lightening' of, or fashioning of an 'alteration to,' the advisory Guidelines sentence (or, in other words, imposing a non-Guidelines sentence)." Op. 23 n.11. But see Op. 22 ("The district court's reference to 'an alteration to a guideline sentence,' standing alone, might be interpreted as a misapprehension that a Guidelines sentence should presumptively be imposed.") (emphasis added). How these sentiments can be squared with the notion that a Guidelines sentence is not to be accorded a presumption of reasonableness, rebuttable or otherwise, is anyone's guess.

Even worse, the opinion also states that "We recognize that in the overwhelming majority of cases, a Guidelines sentence wil fall comfortably within the broad range of sentences that would be reasonable in the particular circumstance." Op. 12. No explanation is offered to justify this assertion; the Court simply assumes this to be true. But given this statement, what's the point of then saying that a Guidelines sentence is not accorded a presumption of reasonableness? Doesn't it amount to the same thing?

Third, the Circuit rejects Fernandez's argument that the district court failed to "consider" one of her arguments for a non-Guidelines sentence (the one based on disparity with a co-defendant's sentence, see infra) because the court did not specifically mention or address this argument at sentencing (though it was raised in Fernandez's written submission). Relying principally on Fleming, 397 F.3d 95, 100 (2d Cir. 2005) , the companion case to Crosby, the Court rejects this argument and holds that it will "presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors." Op. 17.

Of course, a court is still required under § 3553(c) to "state in open court the reasons for its imposition of the particular sentence," and a district court will faciliate the appellate function "by providing complete and detailed explanations regarding their sentencing decisions." Op. 17 n.8. However, quoting Fleming, "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, [the Circuit] will accept that the requisite consideration has occurred." Fleming, 397 F.3d at 100.

Fourth, the Circuit leaves open the question of whether a disparity between the sentence received by the defendant and a co-defendant can constitute an "unwarranted disparity" within the meaning of 18 U.S.C. § 3553(a)(6), and thus possibly justify a non-Guidelines sentence. Op. 19-20. This is actually quite a good outcome, since the Circuit in pre-Booker days explicitly barred departures based on disparities with a co-defendant's sentence, on the ground that the disparities referred to in (a)(6) concerned nationwide disparities, not disparities in any particular case. E.g., United States v. Tejada, 146 F.3d 84, 87 (2d Cir. 1998); Op. 19 n.9.

The Court concludes that it need not resolve this question here because Fernandez and her co-defendant (who also received a Guidelines sentence, but of only 135 months) were not similarly situated. Among other things, the co-defendant pleaded guilty and thus received a 3-level acceptance reduction (Fernandez was convicted at trial), and also qualified for the safety valve (Fernandez did not). Op. 20.

Fifth, the Court clarifies that "the requirement that a sentencing judge consider an 18 U.S.C. § 3553(a) factor is not synonymous with a requirement that the factor be given determinative or dispositive weight in the particular case, inasmuch as it is only one of several factors that must be weighted and balanced by the sentencing judge." Op. 20 (emphasis in original). "The weight to be afforded any given argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented." Op. 21; accord Op. 23 ("[T]he requirement that the sentencing judge consider a § 3553(a) factor that may cut in a defendant's favor does not bestow on the defendant an entitlement to receive any particular 'credit' under that factor. . . . [So long as the ultimate sentence is reasonable,] we will not second guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that factor.").

Finally, the Court holds that even where the Government has not filed a § 5K1.1 motion based on a defendant's cooperation, a sentencing judge must still consider the circumstances underlying the defendant's (ultimately unsuccessful) efforts to cooperate in determining an appropriate sentence. Op. 21-22. The Court relied on § 3553(a)(1) (requiring court to consider "the history and characteristics of the defendant") for this conclusion: This "sweeping provision" is "worded broadly," "contains no express limitations as to what 'history and characteristics of the defendant' are relevant," and requires consideration of "the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion" under § 5K1.1. Op. 22; see id. (§ 3553(a)(1)'s "sweeping" language "presumably includes the history of a defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation."). Unfortunately, this did not help Fernandez, since the relevant facts support the district court's refusal to impose a non-Guidelines sentence based on Fernandez's half-hearted and incomplete efforts to cooperate.

Mail Fraud Conviction Vacated: Defendant's Deceptive Conduct Did Not Deprive Other Party of Any Anticipated Benefits

United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig'n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on the effect of its partial vacatur on the other counts of conviction (e.g., money laundering). This Blog will discuss two issues: (1) whether 29 U.S.C. § 186(b)(1), prohibiting a union official from receiving anything of value from anyone who employs a member of the union, requires proof that the employer knew that the money it gave to an employee would be re-directed (as kickbacks) to the defendant union official; and (2) whether a mail fraud conviction can be sustained where the evidence fails to show that the defendant's deceptive acts deprived the other party of any anticipated benefits.

The essential facts are somewhat hard to decipher, though the scheme is reminiscent of "The Sopranos". Novak is the VP of a Union whose members operate the temporary elevators on construction sites. Contractors of the construction sites paid the members' salaries. Novak was paid by the Union. By his position, Novak had the power to determine which union members obtained work at which site (if any).

For reasons unexplained in the opinion, the contractors agreed to pay Union members for hours they did not work (these are called "no show hours" -- similar to Tony's "no show job" with the carting company from Sunday's episode). Time sheets for all union workers would be submitted by a "lead" union member under Novak's control, and the contractor (knowing that the time sheets were inflated to include the no-show hours) would issue checks payable directly to the workers / members. The workers would then "kick back a portion of the wages received" for the no-show hours to Novak. Apparently, the contractors did not know about the kick-back aspect of the scheme. (Ed.: Really?).

Novak was eventually indicted on a variety of charges resulting from this scheme. He was convicted by a jury and sentenced to 108 months' imprisonment.

(1) Novak was convicted of unlawful recipt of labor payments under 29 U.S.C. § 186(b)(1), which makes it unlawful for a union official "to receive or accept anything of value from someone who employs members of that [union]." He claims on appeal that this conviction should be overturned because he received money only from the union members, and because the contractors were not aware that he was receiving money in this manner.

The Circuit rejected this argument, relying principally on United States v. Cody, 722 F.2d 1052, 1059 (2d Cir. 1983), which stated that "nothing [in § 186] requires mutuality of guilt for the conviction of either the employer or the representative of employees." Cody affirmed the union official's conviction where the evidence showed only that (1) the employer paid wages to union members to perform construction-related work; and (2) "the members instead spent their working hours acting as Cody's personal chauffeurs." Under Cody, the mere fact that the contractors were unaware of the employees' kickbacks to Novak did not shield him from liability. The Court also read Cody to hold that a conviction under § 186 "requires a showing that the transfer from the employer to the employee and the transfer from that employee to the union official are so closely related as to constitute a single scheme." Op. 7 (emphasis added).

The Court then found that "the kickbacks to Novak were inextricably linked to the employees' receipt of the paychecks from the contractors," thus satisfying Cody's linkage requirement. Op. 8. As it explained: "Had the employees not agreed, for whatever reason, not to participate in Novak's scheme, they would not have received paychecks from the contractors. Thus, the employees' receipt of paychecks from the contractors, and the employees' subsequent payments to Novak, were so closely related that the transfers in this case . . . were actually between an employer and a union representative." Op. 8.

(2) Novak was also charged with mail fraud, the foundation for which "lay in Novak's receipt, through the mail, of portions of the money that the contractors paid [Union] members for the no-show hours." Op. 8. The indictment charged Novak with using the mail "to defraud and to obtain the property of the contractors." Id.

Novak claims on appeal that the evidence was insufficient to sustain this conviction because no evidence showed that he intended to defraud the contractors. Rather, since "[t]he money came from the Union members, . . if any harm was intended, it was to the property rights of the [members / workers] and not the contractors." Op. 9. The Government's response is that "the element of fraudulent intent is satisfied by the contractors' unwitting participation in Novak's plan." Id. Its theory is that the "contractors would never have issued checks for the no-show hours had that known that a portion of the money would be received by Novak, since doing so would have exposed them to criminal liability . . . under § 186." Id.

The Court rejected the Government's argument and vacated the mail fraud conviction. It relied principally on United States v. Starr, 816 F.2d 94, 99-100 (2d Cir. 1987), which vacated the defendants' mail fraud convictions after concluding that although the defendants (who operated a bulk-mail service) defrauded their customers (by charging them regular-mail rates and then burying their mail under lower-priced bulk mail, and then pocketing the difference), "the customers received exactly what they paid for." Op. 10. Starr rejected a similar theory offered by the Government in Novak's case: "While the customers' assumption that the money they paid to defendants would be directed toward a lawful purpose did implicitly constitute a part of the bargain between the parties, that defeated expectation alone did not affect the nature or quality of the services that was the basis of the customers' bargain." 816 F.2d at 99-100.

The mere fact that "the victims would not have entered into the transaction had they known of the deception," in short, is insufficient to satisfy the "intent to defraud" element of the mail fraud offense. Op. 11. Thus, the fact (as hypothesized by the Government) that "the contractors would not have paid for the no-show hours had they been aware that Novak would receive a portion of the money . . . is inadequate to support a finding of fraudulent intent." Op. 14.

Rather, the Court held after canvassing a number of mail and wire fraud cases, Op. 11-13, "the harm contemplated in a scheme to defraud must affect the very nature of the bargain itself." Op. 14 (quoting Starr, 816 F.2d at 98). "Such harm is apparent where there exists a discrepancy between benefits reasonably anticipated because of the misleading representations and the actual benefits which the defendant delivered, or intended to deliver." Id. And because the contractors "received all they bargained for, and [because] Novak's conduct did not affect an essential element of those bargains," his mail fraud conviction could not be sustained. Op. 14.

Monday, April 03, 2006

Crawford Not Violated Because Statement Not Admitted for Its Truth; Statment Was Relevant for Its Truth, However, Since Defense Raised It. Clear?

U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley):

Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay statement is not to be considered for its truth eliminates all Sixth Amendment concerns, even where no alternate purpose for its admission seems obvious, and where the district court's limiting instruction may not have obviated all need for cross-examination.

The police executed an arrest warrant for the defendant’s father, Adolfo, at Adolfo’s apartment, where the defendant was living. Adolfo gave consent to search, and the officers found cocaine in the hall closet. Adolfo stated, apparently with respect to these drugs, that he owned them and that “no one else was involved in the drugs.” He added “that he had no other drugs in the apartment.” The police then found additional cocaine in the closet in the defendant’s bedroom and the defendant was charged with possessing it. The defense objected to the admission of the statements and the trial court ruled that they were admissible, not for their truth, but so that the jury could “understand the course of events that unfolded” and could “make a judgment as to whether or not the agent has accurately described the conversation.”

The Court held that these circumstances presented no Sixth Amendment claim, since the district court did not admit the statements for their truth, but this does not seem entirely clear. Since Adolfo’s statement that he “had no other drugs,” thus inculpating the defendant, was admissible under the court's instruction to help the jury “understand the ... events” and to permit them to consider whether the agent “accurately described the conversation," the instruction seems arguably to put its truth in question rather than taking it from the jury, to the extent it admits the statements for a relevant purpose at all.

Having disposed of the Sixth Amendment question, the Court found it necessary to determine only whether the district court abused its discretion in admitting the evidence because it was irrelevant. The Court found the damaging portion of the statement relevant solely as a response to the defense argument, that all the drugs were Adolfo’s. But this seems to contradict the Court’s primary holding, for it acknowledges that the real relevance of the statement arose from its content – that the drugs were not Adolfo’s. This would seem to put the statement's truth in issue, violating Crawford. The Court seems to find, nonetheless, that admission of Adolfo’s damaging statements for their truth was permissible because the defense used part of the statements. The correctness of this holding would depend on a fact the Court leaves unclear, whether the defense used the statements before the district court had ruled on their admissibility, or whether it used them in reliance on the court’s erroneous evidentiary ruling. If the latter is the case, as one footnote suggests, the trial court's prior ruling cannot fairly be justified based on the defense’s later actions in reliance on that ruling.

In another ruling, the Court held that two prior convictions and one arrest for drug trafficking could be admitted against the defendant to show his “knowledge” or “intent,” even though he argued that his defense was solely that he did not possess the drugs. The Court stated that the defense did not agree to take the issues of knowledge and intent out of the case; indeed, the opinion can be read as saying that a defendant can never take those issues out of a case where constructive possession is charged. And indeed, it raises the question whether the Court thinks that they can be taken out of a case in which any possession charged, since possession must always be knowing to be culpable.

The Court also rejected claims that Brady material was not timely turned over to the defense and that excusing a juror and taking a verdict from an 11-person jury was error.

No Strickland Violation Because Counsel's Errors Would Not Have Affected Outcome

Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig'n)): The Circuit reverses the district court's grant of Lynn's § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel's errors did not create a reasonable probability of a different result. This Blog is skeptical. Although the opinion does not contain enough information to evaluate fully the soundness of this determination, the fact remains that (1) Lynn was convicted solely on the testimony of two alleged eyewitnesses, and (2) counsel's errors concern (largely) his failure to discredit the eyewitnesses' testimony by their prior inconsistent statements (in which one witness told the police after the shooting that he could not recognize the shooter, and the other witness failed to select Lynn's picture from a photo array the first time he was shown an array). But it is a largely fact-specific question, and those interested will have to read the opinion and decide for themselves.

The essential facts are thus. Two people were shot on a street in the Bronx. One died, one survived (though the survivor disappeared by the time of trial). When the police arrived, a crowd had gathered and was chasing one Arriaga, whom the crowd believed (for unknown reasons) to have been the shooter. A police officer arrested Arriaga after pulling him out from under a car (where he was hiding from the mob). Arriaga was eventually charged with the shooting.

The police interviewed among others Quinones and Patterson, both of whom lived near the scene. Quinones repeatedly denied knowing anything about the shooting, and specifically told the police that he "could not recognize" the shooter. Op. 5. Several months later, however, he told the district attorney prosecuting Arriaga's case that the real shooter was Lynn. Quinones picked Lynn's photo from a photo array. The DA dropped the charges against Arriaga and charged Lynn with the shooting.

Patterson also initially denied seeing the shooting. Later, however, he said he was simply "too scared" to come forward with information, and claimed to be an eyewitness. Nonetheless, he failed to select Lynn's photo when initially presented with a photo array. He selected Lynn's photo only when presented a second time with an array.

Both Quinones and Patterson then selected Lynn from a line-up.

Before trial, Lynn's attorney moved for a Wade hearing challenging the admissibility of the witness's identifications. At the time, no one knew that Patterson had been shown an array twice, and that he had failed to select Lynn the first time. The court denied the Wade motion and allowed the prosecutor to introduce the ID testimony from both witnesses.

During trial, however, the prosecutor learned about the first array shown to Patterson and so informed the court. But nothing came of this new information. Defense counsel, especially, stood silent and did not request a reopening of the Wade hearing. Nor did he, apparently, cross Patterson about his failure to identify Lynn when shown an array the first time. Counsel elicited only the more general information that Patterson "previously had indicated to police that he did not witness the shooting." Op. 20.

Regarding Quinones, he admitted at trial that "he did not want to get involved at first because he was afraid for himself and his family." Op. 20. However, the jury never heard about his statement to the police (made shortly after the shooting) that he "could not recognize" the shooter. Defense counsel did not elicit this statement on cross.

Finally, defense counsel tried to introduce into evidence a police report describing Arriaga's arrest. (The report was helpful for Lynn because it described how a crowd was chasing Arriaga, believing him to be the shooter). The court denied the request on the ground that the report was hearsay, since most of it recorded statements from witnesses. Defense counsel failed to tell the court, however, that the portion of the report describing how the arresting officer rescued Arriaga from the crowd by pulling him from under a car was not hearsay, since it was based on the officer's personal observation.

Lynn was convicted of murder and attempted murder. The state appellate courts affirmed his conviction, and he thereafter filed a § 2254 petition in the SDNY. He raised three Strickland claims in the petition -- that counsel rendered constitutionally ineffective assistance by (1) failing to move to reopen the Wade hearing after learning that Patterson failed to ID Lynn when first shown an array; (2) failing to cross Quinones about his prior statement to the police that he "could not recognize" the shooter; and (3) failing to argue successfully that the portion of the arrest report detailing the police's "rescue" of Arriaga from the crowd was not hearsay and should have been admitted. As noted, the district court granted the motion, but the Circuit reversed.

Regarding the failure to move to reopen the Wade hearing, the Court concluded that even if counsel had made such a motion, Patterson's identification testimony would not have been suppressed. Op. 19. "There is simply no evidence in the Record regarding improper police conduct pertaining to the out-of-court identification procedures -- only 'inconsistent statements' resulting from the two arrays shwon to Patterson." Op. 20. And while inconsistent statements regarding identification may be appropriately elicited on cross examination, the mere fact of inconsistency is not sufficient for suppression under Wade (requiring showing of impermissibly suggestive procedures rendering ID unreliable).

The problem, though, is that while counsel "did conduct cross-examination to establish that Patterson previously had indicated to police that he did not witness the shooting," Op. 20, nothing (at least in the Court's opinion) indicates that counsel actually crossed Patterson about his first, failed attempt to select the shooter from a photo array. This more specific, un-elicited fact would surely have been more persuasive to a jury (that Lynn was not the shooter), and not the same as the general fact that Patterson previously told the police that he did not witness the shooting.

The Court also found that counsel's failure to specifically cross Quinones about his prior statement to the police that he "could not recognize" the shooter did not prejuice Lynn. At trial, Quinones testified generally that he "did not want to get involved at first" because he was afraid. And he admitted on cross that he initially told the police that he didn't known anything about" the shooting. Op. 21. In light of this, the Court concluded, counsel's failure to specifically elicit one prior inconsistent statement did not give rise to a reasonable probability of a different result: "The jury was aware that Quinones had changed his story several times and that he had lied to the police when he said he didn't know anything about the shooting." Op. 22.

Finally, the Court rejected the Strickland claim based on counsel's failure to successfully argue for the introduction of the portion of the police report describing how arresting officers rescued Arriaga from an angry mob in the aftermath of the shooting. No prejudice flowed from this failure, the Court explained, because the jury was aware generally that Arriaga had originally been charged with the shooting, and the fact that "he was pulled out from underneath a car, or that a crowd had assaulted him, was of no material significance." Op. 25.