Thursday, May 25, 2006

Jury Must Be Unanimous that RICO Predicate Was Not Proved to Yield an Acquittal; Lack of Unanimity Results in Hung Jury

United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.'s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree that the Government had proved the existence of at least two predicate racketeering acts. Gotti argues that because the Government thus failed to prove the "pattern of racketeering activity" element of the RICO offense, he was entitled to acquittal on the RICO charges (and thus could not be re-prosecuted on these charges at a new trial under the Double Jeopardy Clause).

The Circuit rejects this "extraordinary argument," adhering to the general rule that jury unanimity is required for either conviction or acquittal. Op. 6 (citing Fed. R. Crim. P. 31(a) ("The verdict must be unanimous."). Thus, "lack of unanimity as to two predicate acts results in a hung jury and a mistrial, not a judgment of acquittal." Id.

Wednesday, May 24, 2006

Ignore If You Have Something Better to Do

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court's decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol' back-of-the-hand summary order treatment). Here, the Court rejects Hilario's two challenges to his sentence (for importing ecstasy), challenges that -- at least as described in the opinion, or unless this Blog is missing something -- seem to straddle the silly-to-frivolous line.

First, Hilario claims that the district court erred because it departed downward by only 26 months to account for the 26 months that he previously spent in a Belgian jail for a "related offense." Hilario claims that the court should have departed downward by an additional 4 months because he "might have earned [the 4 months as good-conduct credit] had he served his 26-month Belgian sentence in [a] federal prison" rather than a Belgian jail. Op. 2. The Court rejects this argument by pointing out that "good-time credit earned by a defendant is determined by the BOP based on a prisoner's behavior while incarcerated in a BOP-controlled environment" and "Hilario was previously incarcerated in a foreign jail" not run by the BOP. Id. [Of course, one wonders why the Court did not simply say, "You got 26 months 'credit' for the 26 months you served. Why should you get any more credit?" Maybe we are missing something.]

Second, Hilario claims that the district court should've given him a lower sentence under Section 3553(a)(6) because of the "possibility," based on "anecdotal evidence and past experience," that a co-defendant "might be transfered pursuant to treaty to Belgium ... and may receive a lesser sentence than he would for the same conduct in the United States." Op. 3. The Court rejects this argument by pointing out that, even assuming that co-defendant disparity could be considered under § 3553(a)(6) (once again leaving this question open), the district court considered Hilario's argument and its refusal to give a lower sentence on this basis was not an abuse of discretion. Op. 3-4. This was especially so given that Hilario's argument was "wholly speculative" and not based on any facts in the record. Id.

Readers are welcome to suggest in the "Comment" section what this Blog has missed.

Thursday, May 18, 2006

Sentence Vacated Where Record Suggests that District Court May Not Have "Considered" the Section 3553(a) Factors

United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit's extremely lax standard for determining whether a sentencing court has fulfilled its obligation to "consider" the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (appellate court will assume that the requisite consideration has been made, even where record is silent); United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (same), this may be the first decision by the Circuit vacating a sentence on the ground that record suggests that the district court failed to consider the Section 3553(a) factors in imposing the 15-month sentence (the bottom of the applicable Guidelines range). But the circumstances were odd and unlikely to recur with any frequency: The sentencing followed two earlier remands in which the Circuit vacated below-the-range sentences, and the district court's comments at sentencing suggests that it may have misunderstood that a Guidelines sentence was somehow required by the Circuit's earlier decisions. See Op. 5. In any event, the Court ruled that "where the record indicates misunderstanding by a district court as to the statutory requirements and the sentencing range or ranges that are arguably appliable, or misperception about their relevance, we may conclude that the requisite consideration has not occurred." Op. 4.

And in a footnote, the Circuit once again dodges (i.e., leaves open) the question of whether co-defendant disparity may be considered under Section 3553(a)(6) in imposing a non-Guidelines sentence. Op. 7 n.1.

Tuesday, May 16, 2006

Another Habeas Win Based on Exclusion of Defendant's Family Members from Courtroom

Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig'n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has "expressed its strong devotion to the preservation of an individual's right to have family and friends present at his trial" and granted habeas based on the exclusion of the defendant's family members from the courtroom. Op. 13 (citing numerous cases from 1994 (Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994)) to 2006 (Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (click here for our discussion of Miller)). It is also further evidence that neither state courts nor state prosecutors pay any attention to the Second Circuit. In this case, in which the state trial occurred in 1997, the judge and the ADA should have known better than to exclude the defendant's brother and sister from the courtroom during the testimony of the state's two essential witnesses (the undercover who did the "buy" in this typical buy-and-bust case, and the "ghost" who shadowed him) based on nothing more than generalized speculation. E.g., Miller, Op. 13 ("[a]ny 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.") (emphasis in original).

Here, the judge allowed Smith's mother, common-law wife, and child to remain in the courtroom but excluded his brother and sister. This distinction was arbitrary and the exclusion of Smith's siblings unjustified: His brother and sister lived in Queens while the underlying offense occurred in Bushwick (Brooklyn) and the undercover and ghost's present and future undercover activities were limited to areas in Brooklyn. Op. 15. Neither witness knew Smith's family, had been threatened by them, or had any reason to believe that they presented a danger to the witnesses' safety or future effectiveness as undercovers.

The Circuit also rejected the district court's alternative holding that any error in violating Smith's Sixth Amendment public-trial right was harmless, re-affirming that the "denial of a public trial is a 'structural' error . . . not subject to harmless error analysis." Op. 16 (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996)). The Circuit noted that, instead, "when addressing whether an unjustified closure is a Sixth Amendment violation, a 'triviality standard' is the proper benchmark." Op. 16. Those interested in this fascinating distinction will have to consult the opinion at pages 16 to 18 (E.g, "We affirm the conviction not because the Sixth Amendment error was harmless, but because the closure was so trivial as to not implicate the concerns and values of the Sixth Amendment" -- got it?). Suffice it to say that the Circuit held here that the exclusion of Smith's siblings was not a "trivial" violation of the Sixth Amendment, due not least in part to the fact that the undercover and the ghost were the state's two essential witnesses. Op. 17-18.

Rather than simply granting the writ, however, the Circuit remands the case to allow the district court to conduct a last-ditch effort (in the form of a hearing) to save the conviction (i.e., to see whether the evidentiary gap authorizing the siblings' exclusion can be closed). Op. 18 (citing Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999)). This remedy seems misguided and a waste of time, since the state trial court already conducted a full hearing on the same issue in which both the undercover and ghost testified. And their testimony was thorough and complete, even if insufficient to justify the exclusion of Smith's siblings. One gets the sense that the Court simply doesn't want to grant the writ because of the perceived "windfall," Op. 18, that Smith will receive. Judge Sack, in fact, explicitly states in a short concurrence that "the looming possibility of . . . the windfall of a new trial . . . is . . . a matter of concern" to him. Op. 21. This Blog suggests that maybe the Court should be more concerned about state judges and state prosecutors' ignorance, willful or otherwise, of well-established law.

Saturday, May 13, 2006

Plea Vacated for Lack of Factual Basis Where Defendant, Charged with Cocaine Conspiracy, Allocuted Solely to Marijuana Conspiracy

United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew the type and quantity of drugs he was selling or carrying for purposes of sentencing under the enhanced penalty provisions of § 841(b), the same is not true of the conspiracy offense under § 846. In order for a defendant charged with drug conspiracy under § 846 to be sentenced under the enhanced penalties of § 841(b)(1)(A) for cocaine, for instance, the Government must prove to a jury that the particular defendant either knew or reasonably should have known that the conspiracy he joined involved distribution of five or more kilograms of cocaine. It is not enough that the conspiracy involved, as a factual matter, the distribution of five or more kilos of coke. United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (defendant liable for amount of drugs distributed by co-conspirators only if defendant knew about the quantity or if it was reasonably forseeable to him); accord United States v. Jackson, 335 F.3d 170, 181 (2d Cir. 2003).

Here, Adams was arrested and charged with an § 846 conspiracy involving 5 kilograms of cocaine, after 659 kilos of coke were found in a truck and after the driver told the Government that Adams recruited him to drive the truck. Adams pleaded guilty to this charge, even stipulating in a plea agreement that he should be sentenced as if five kilos of coke were involved. At his guilty plea, however, Adams maintained that he did not know that cocaine was going to be in the truck. Adams claimed that he thought that about 90 pounds of marijuana were going to be on the truck, not cocaine. The district judge nonetheless accepted his guilty plea, finding it sufficient that Adams knew that some kind of illegal drugs were going to be on the truck, and subsequently sentenced him to the 10-year minimum under 21 U.S.C. § 841 (b)(1)(A).

The Circuit vacates Adams' plea, finding that it lacked a factual basis under Rule 11(b)(3) because Adams did not allocute sufficiently to the knowledge element in light of Martinez and because nothing in the record at the time of the plea otherwise filled this gap. The Circuit rejected the district court's finding, made after a post-plea hearing held in response to Adams' motion to withdraw his guilty plea, that Adams reasonably should have foreseen that more than five kilos of coke were at issue, on the ground that the factual-basis requirement can be met only by the defendant's allocution or by "any facts on the record at the time of the plea proceeding." Op. 12 (emphasis added); see id. 14 (citing United States v. Andrades, 169 F.3d 131, 134 (2d Cir. 1999), for proposition that "a sufficient factual basis must be determined at the time the plea is accepted, thus an after-the-fact hearing will not suffice").

Friday, May 05, 2006

Co-Defendant Disparity as Basis for Non-Guidelines Sentence Lives Another Day

United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig'n)): This opinion affirms Flores's conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant's "fl[ight] from justice"; (2) whether testimony by cooperating witnesses alone, without independent corroboration, is sufficient to convict the defendant; and (3) whether the 210-month sentence is reasonable given that Flores's brother Chepe, who appeared to be equally culpable, received only a 120-month sentence (imposed by a different judge). The bulk of the opinion is spent on the tolling question, Op. 5-16, but this Blog will focus on the sentencing issue.

Flores claims that his 210-month sentence is unreasonable because of its disparity with his brother's 120-month sentence. This is so even though Flores actually faced a Guidelines range of 262 to 327 months, and the district judge imposed a non-Guidelines sentence (of 210 months) because of its concern about disparity with Chepe's sentence. Flores's claim on appeal, therefore, was that the district judge did not sufficiently consider the disparity and did not impose a sufficiently low sentence to reduce that disparity.

The Circuit rejects this argument, pointing out that even assuming that co-defendant disparity (as opposed to nationwide disparity) is an appropriate consideration under § 3553(a)(6), "the weight to be given such disparities, like the weight to be given any § 3553(a) factor, 'is a matter firmly committed to the discretion of the sentencing judge and is beyond our [appellate] review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.'" Op. 24 (citing Fernandez (click here for our discussion of that case)). Again relying on Fernandez, the Court emphasizes that on reasonableness review, which is "akin to [an] 'abuse of discretion'" standard, it will not "substitut[e] its judgment for that of the sentencing judge." Op. 24.

And in upholding the sentence, Judge Raggi signals some discomfort with the district judge's decision even to reduce the sentence to 210 months based on Chepe's sentence, twice noting that because the Government did not cross appeal, the Court has no occasion to rule on the propriety of the reduction. Op. 23 & 25. Nonetheless, Judge Raggi notes that while the Circuit has "not ruled, post-Booker, as to whether [§ 3553(a)(6)] permits district courts to consider sentencing disparities between co-defendants in the same case," Op. 22-23 (citing Fernandez), "this Court [] recognized [pre-Booker] that Congress's primary concern in enacting § 3553(a)(6) was to minimize sentencing disparities nationwide." Op. 22. Judge Raggi further points out that the district judge here would have been well warranted in not reducing Flores's sentence at all because he was not similarly situated to his brother. While Chepe pled guilty and showed the existence of extraordinary family circumstances at sentencing, Flores fled from justice, went to trial and asserted his innocence, and did not show that his incarceration would exceptionally affect his family members. Op. 24-25.

Thursday, May 04, 2006

Maximum Sentence upon Revocation of Probation Is Same as Maximum for Original, Underlying Offense

United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig'n)): The Circuit finally holds what most have long assumed -- that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question in the Circuit until this decision, in which the Second joins many other circuits in so holding. Op. 9-10. Those interested in the statutory parsing can look to pages 7 to 8.

In this case, Goffi was originally sentenced to 5 years' probation after pleading guilty to embezzlement. While on probation, he pleaded guilty in state court to child molestation. The same misconduct led to revocation of probation in federal court, upon which he was sentenced to 24 months' imprisonment. Though this sentence exceeds the 6 to 12 months Guidelines range Goffi originally faced for the embezzlement conviction (when the Guidelines were mandatory), and though the court did not indicate an intent to depart upwardly, it was well below the 10-year statutory maximum for embezzlement (i.e., the maximum set forth in the U.S. Code -- not the Blakely "statutory maximum"), and thus lawful.

Goffi also argued that the district court violated 18 U.S.C. § 3553(c)(2) in imposing the 24-month sentence, which was 6 months greater than the top of the Chapter 7 "policy statement" range, by failing to articulate a "specific reason" for this sentence. The court had stated only that it imposed this sentence "because of the criminal conduct that gave rise to the violation and the need to protect society." Op. 5.

The Circuit rejected this argument, finding that even this bare-bones statement was sufficient. As it explains: "Here, the district court explained that it was sentencing Goffi to a term of imprisonment in excess of that recommended by the pertinent policy statement because of the seriousness of his offenses and the need to protect society. The district court thus explained 'the specific reason for the imposition of a sentence different from that described.'" Op. 6 (quoting § 3553(c)(2)).

Nonetheless, in a truly pointless gesture, the Circuit remands the case for amendment of the written judgment because the court failed to comply with § 3553(c)(2)'s "written statement" requirement. See 18 U.S.C. § 3553(c)(2) (requiring the "specific reasons" orally stated to also be "stated with specificity in the written order of judgment"). Though the Circuit had earlier ruled that failure to abide by the written-statement requirement does not require remand where the sentence is otherwise reasonable, United States v. Fuller, 426 F.3d 556, 567 (2d Cir. 2005), the Panel here explained that "it is the better course, while affirming the substance of the judgment of the district court, to return the case to the district court for the sole purpose of amending its written judgment to comply with Section 3553(c)(2)." Op. 6 n.2. Oh how sweet it is, when Justice is served.

The Circuit Is a Thorn in the Defendant's Side, but Booker May Come to His Rescue

United States v. Thorn, Docket No. 03-1602(L) (2d Cir. April 27, 2006) (Jacobs, Sotomayor, Hall): A very bad day for Mr. Thorn. In this opinion, involving an appeal by Thorn and a cross-appeal by the Government following a resentencing in the wake of an earlier Circuit decision in the same case, United States v. Thorn, 317 F.3d 107 (2d Cir. 2003), the Circuit (1) rejects all of Thorn's challenges to his sentence on the ground that they are either barred by the law of the case doctrine (because they are foreclosed by the earlier decision) or waived because he failed to raise them at the initial sentencing, and (2) accepts all of the Government's arguments -- that the district judge on remand erred in (a) failing to impose an abuse-of-trust enhancement and (b) departing downwardly because Thorn's conduct was (allegedly) not within the heartland of money laundering offenses and because Criminal History Category II (allegedly) significantly overstated the seriousness of his criminal past. None of the issues appears to break new ground.

On a first look, this decision is terrible news for Thorn. His initial sentence of 65 months was already increased to 168 months by the district judge on remand in light of Thorn I. And on remand following this decision (Thorn II), his Guidelines range will be even higher (though the opinion does not indicate just how much higher).

However, Booker may come to Thorn's rescue. Because even the resentencing occurred before Booker, the district judge, though forced by Thorn II to use a much higher Guidelines range than it prefers, will have discretion on remand to impose a non-Guidelines sentence that achieves the same result it earlier achieved through (what some may consider) a manipulation of the Guidelines. Reading between the lines, it's clear that this district judge does not believe that Thorn -- whose misconduct consists of Clean Air Act violations involving the disposal of asbestos -- truly deserved even a 168 month sentence and will likely impose a lower non-Guidelines sentence on remand. And if that happens, we can hardly wait for Thorn III!

Wednesday, May 03, 2006

Court Reverses Conviction for "Assault by Voicemail" but Upholds Charge of Willfully Oppressing a Person in Connection with Revenue Laws

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that "she had the 'ability to initiate investigations and audits into the[ir] tax histories'" and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone call to the official who had recommended her firing. The official received a voicemail message about nineteen hours after it was left, threatening to "fuck you up, you faggot bitch." For this, she was charged with "forcibly" assaulting or intimidating the official.
18 U.S.C. § 111. The district court granted a judgment of acquittal on the oppression charge, holding that it was not under "color of law," since she was not acting under any actual authority, was not even "apparently" empowered to punish the officers, and that the officers were laughing at her taunts; it upheld the "forcible" assault or intimidation charge, however.

The Circuit reversed both rulings of the district court. It found fairly easily that the threat to "fuck up" an official left on his voicemail many hours before the message was finally received did not involve the "immediate or imminent threat" necesessary for a conviction for "forcible" intimidation. That was despite the threatened official's testimony that he was "basically petrified" after receiving her call because he was aware of her actions at the time of her arrest and that he had "great concerns about [his] own safety."

The Circuit reversed the judgment of acquittal on the oppression count, however. It held that Ms. Temple's employment by the IRS clothed her with "indicia of authority" and that she made a "specific and direct threat under the guise of apparent authority." It noted that the officers were unaware that Temple probably did not have authority to initiate any audit of their tax status.

Judge Wesley concurred, writing to express his concern that the court's reliance on its prior decision in United States v. Giordano, 442 F.3d 30 (2d Cir. 2006), had allowed "a victim's subjective beliefs or fears about a defendant's ability to or willingness to use his or her public position to cause harm" to be the basis for a finding that a defendant was acting "under color of law." Judge Wesley stated that he would hold that Temple's threats were under color of law without regard to the police detectives' subjective beliefs or fears about her actions. He urged that the color of law inquiry be based on "objective criteria."


Tuesday, May 02, 2006

Constructive Possession of Firearm Suffices to Disqualify Defendant from Safety-Valve Relief

United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It's hard to believe that this isn't a settled issue in the Circuit, but apparently it's not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well as for the 2-level reduction under § 2D1.1(b)(9), a finding that the defendant constructively possessed a firearm, "based on his personal dominion and control over that weapon," Op. 7 (emphasis in original), renders the defendant ineligible for such relief under § 5C1.2(a)(2) (listing as one requirment for safety-valve relief that "the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense."). The Court reasoned that since constructive possession is as good as actual possession in every other context, see Op. 7-8 (citing example of § 924(c)(1), § 922(g), and U.S.S.G. § 2D1.1(b)(1)), the same should be true for safety-valve eligibility. And in this case, the evidence was sufficient to uphold the district court's finding that Barraza personally exercised dominion and control over a stash house where two guns were stored, Op. 9-10, and thus that the court properly denied safety-valve relief.

A caveat: The Court reminds us that whether a defendant is disqualified from the safety valve based on the possession of a gun (and thus also ineligible for the 2-level reduction under § 2D1.1(b)(9)) is a different question from whether a defendant should receive a 2-level enhancement under § 2D1.1(b)(1) for possessing a gun or dangerous weapon. Because the latter has a wider reach -- since it can be triggered by relevant conduct such as a co-defendant's reasonably foreseeable possession of a firearm -- than the former (§ 5C1.2(a)(2) concerns solely the "defendant['s]" possession of a firearm, see § 5C1.2 comment no. 4), a defendant who receives the 2-level enhancement under 2D1.1(b)(1) may nonetheless be entitled to safety-valve relief under some circumstances. Op. 6 (citing cases from other Circuits). Though this opinion does not definitely resolve this question for the Second Circuit (since Barraza personally possessed a firearm, albeit constructively), the law seems clear on this distinction.