Wednesday, July 12, 2006

Hobbs Act Conviction Based on Extortion of Intangible Property Rights Unaffected by Scheidler v. NOW, 537 U.S. 393 (2003)

United States v. Peter Gotti et al., Docket Nos. 04-2746-cr (L) (2d Cir. July 12, 2006) (Katzmann, Feinberg, Lynch (D.J.)): In this 94-page opinion affirming the convictions of numerous members of the Gambino crime family, the Circuit principally holds that the Supreme Court's decision in Scheidler v. National Org. for Women, Inc., 537 U.S. 393 (2003), "leav[es] intact this Circuit's precedent that intangible property rights can qualify as extortable property under the Hobbs Act" and "simply clarif[ies] that before liability can attach [under the extortion prong of the Hobbs Act], the defendant must truly have obtained (or, in the case of attempted extortion, sought to obtain) the property right in question." Op. 45; see also id. 3 ("[F]ar from holding that a Hobbs Act extortion could not be premised on the extortion of property rights," Scheidler "simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself."). The opinion further clarifies that under Scheidler, the "key inquiry" for determining whether Hobbs Act "extortion" has occurred (defined inter alia as "the obtaining of property from another" with his/her consent and induced by force or violence or threats) is "whether the defendant is (1) alleged to have carried out (or, in the case of attempted extortion, attempted to carry out) the deprivation of a property right from another, with (2) the intent to exercise, sell, transfer, or take some other analogous action with respect to that right." Op. 47-48.

Tuesday, July 11, 2006

Writ of Coram Nobis Cannot Be Used in Federal Court to Vacate State Court Judgment

Finkelstein v. Spitzer, Docket No. 05-4725-pr (2d Cir. July 11, 2006) (Kearse, Sack, Stanceu (by desig'n)) (per curiam): This short opinion confirms the rule, adopted by other Circuits that have addressed the question, that the writ of error coram nobis (filed via the All Writs Act, 28 U.S.C. § 1651) may not be used in federal court to attack a state court judgment. This is so because the writ was available at common law only to "a court in cases within its own jurisdiction, not to correct errors in other jurisdictions." Op. 5. Thus, the district court properly rejected Finkelstein's coram nobis writ seeking to set aside his state court fraud conviction.

BOP Erred in Categorically Limiting Halfway House Confinement to Maximum of (the Greater of) 6 Months or 10 % of Sentence

Levine v. Apker, Docket No. 05-2590-pr (2d Cir. July 10, 2006) (Calabresi, Raggi, Murtha (by desig'n)): This is a great victory for the defense. The Court, by Judge Calabresi and with Judge Raggi dissenting, holds that the BOP exceeded its statutory authority when it promulgated a February 2005 rule categorically limiting the amount of time that a defendant can serve at a halfway house (or "community confinement center") to a maximum of the greater of either 6 months or 10% of the defendant's total sentence. Under 18 U.S.C. §§ 3621(b) & 3624(c), the Circuit holds, the BOP must consider the statutorily listed factors (e.g., the resources of the facility, the nature of the offense, and the history and characteristics of the offender) before determining whether a particular form of confinement is appropriate and for what period of time. The Court joins the Third and Eighth Circuits in invaliding the BOP regulation.

This atypical outcome must be attributed to fine lawyering on behalf of Levine (including an amicus brief filed jointly by FAMM, NACDL, and NYCDL). Given the Circuit's general kow-tow posture toward the BOP, see, e.g., Sash v. Zenk, 439 F.3d 61 (2d Cir. 2006), and the Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001) (upholding BOP rule categorically elminating inmates with certain convictions from discretionary early release eligibility for completing a drug treatment program), the result in this case is somewhat unexpected. But it is good news, and one hopes that the BOP will indeed exercise its discretion to place offenders in halfway houses with "no favoritism given to prisoners of high social or economic status." 18 U.S.C. § 3621(b).

Monday, July 10, 2006

Get Out If You See Dime Bags Lyin' Around

United States v. Jerrell Heath, Docket No. 04-4599-cr (2d Cir. July 10, 2006) (Calabresi, Cabranes, Hall (by desig'n)): The majority opinion by Judge Calabresi has the unusual vice of being both legally suspect and factually wrong. In a case where the Circuit role-plays as the Supreme Court – Judge Cabranes joins only in Part II of Judge Calabresi’s Opinion (and dissents from Part III) while District Judge Hall joins only in Part III of the Opinion (and dissents from Part II)) – the clearest conclusion is the practical outcome: The district court’s decision granting Heath’s suppression motion (on the ground that the police lacked probable cause to arrest – and then search -- him) is vacated, and the case is remanded for further fact-finding on whether the police would have inevitably discovered the $3,073 in cash found on him (because other “facts” coming to light after the police improperly arrested him would have established probable cause to arrest). On the way to this conclusion, Judge Calabresi makes some highly questionable findings of fact that contradict the findings made below, as well as two dubious conclusions of law (one pro-prosecution and the other pro-defense). The short version: (1) police have probable cause to arrest someone if he is in a home and some drugs are found in plain view in a public / common area of the house, even if no evidence shows that he actually saw the drugs, and (2) having probable cause to arrest is a necessary but not sufficient basis for concluding that evidence – first discovered incident to an unlawful arrest -- can be admitted under the inevitable discovery doctrine.

The essential facts, as found by Judge Calabresi, are these. Police go to a 2-story house to execute a no-knock search warrant, based on snitch evidence that drugs were sold there. However, the police have no information about who is doing the alleged selling.

Upon entering the house, the police see one Summersett at the top of a stairwell, just stepping out of a bathroom. Standing at the bottom of the stairwell, the officers order Summersett to lie down. They then go up the stairs and keep Summersett in that posture.

One officer then goes into a nearby bedroom and sees defendant Heath sitting on a bed and talking on his cell phone. The officer frisks him, finding nothing. After detaining Heath, the officer conducts a search of the bedroom and finds a half ounce of pot hidden behind a dresser. The officer then arrests Heath. Upon a full search incident to arrest, $3000 in cash is found on Heath’s person.

A short time later, other officers announce that they found several small bags of crack cocaine in plain view in the residence. Specifically, they found several bags of crack on the upper landing of the stairwell (underneath or immediately surrounding the prone Summersett) and three dime bags of crack on the bottom of the stairwell, near where the police stood before they went up the stairs.

Heath moved to suppress the $3000 found on him, arguing that his mere presence near the hidden marijuana did not constitute probable cause justifying his arrest. The Government argued to the contrary. The district court agreed with Heath and suppressed the cash.

The Circuit, by Judge Calabresi, reversed. In so doing, however, the Court does not reach the principal legal issue raised on appeal – i.e., whether the discovery of the pot behind the nearby dresser justified Heath’s arrest. Rather, Judge Calabresi assumes without deciding that the pot did not constitute probable cause, and then concludes that even if the pot did not justify the arrest, the three dime bags of crack discovered shortly after Heath’s arrest on the lower landing would have. The remaining issue for the Court, therefore, is whether this subsequent discovery allowed the admission of the cash under the inevitable discovery doctrine.

But to even reach the conclusion that the discovery of the dime bags would have justified Heath’s arrest, Judge Calabresi critically finds that the three dime bags on the lower landing were present at that location even before the police arrived – despite a finding by the court below that all of the little baggies of coke were strewn by Summersett during or after the police’s entry into the house. Judge Calabresi badly twists (or simply ignores) the lower court’s finding on this point, concluding instead that while the bags on the upper landing were discarded by Summersett, the bags on the lower landing were, well, just lying around this common area before the cops arrived.

Judge Calabresi then relies on this invented fact to conclude as a matter of law that the discovery of the three dime bags of crack on the bottom of the stairwell justified Heath’s arrest: “After all, those who are permitted to observe obvious criminal activity in a home are, absent indications to the contrary, likely to be complicit in the offense.” Op. 9. Yikes! Thus, even though no evidence shows that Heath actually saw the dime bags or lived in the house (and even though none of the officers saw the bags, either, before they went upstairs to detain Summersett), the mere presence of the bags in a common area of the house constituted probable cause that would have supported the arrest of Heath.

Judge Calabresi tries to temper this holding in a footnote, cautioning that the Court does not hold that “any quantity of narcotics in plain view in any location in a home. . . automatically[] create[s] probable cause.” Op. 10 n.4 (emphases in original). Rather, the Court holds only that “Heath – one of only two adults inside a small home containing, in a highly public and common space, a relatively large quantity of drugs – could reasonably be seized by the arresting officers.” Id. Given the facts of this case, however, this is hardly a meaningful limitation. (E.g., when does three dime bags qualify as a “relatively large quantity”? Judge Hall zings this part of Judge Calabresi's opinion in footnote 9.)

As noted, Judge Cabranes joins this portion of the Dean’s opinion, thus making it the majority position. This Blog, of course, sides with Judge Hall’s fine dissent on this point. See Op. 25-33. Judge Hall skewers the majority’s fact-finding as well as its guilt-by-proximity reasoning.

Fortunately, Judge Calabresi’s opinion gets better from here legally speaking -- though at the cost of creating a rather farcical remand. He rules that even though the dime bags sufficed to create probable cause for arresting Heath, that in itself is not sufficient under the inevitable discovery doctrine. Rather, the Government must show more than that the police could have arrested Heath – it has to show (as Judge Cabranes disparagingly puts it) “probable cause-plus”: I.e., the police would have arrested him, not merely that they could have. As Judge Calabresi explains, “even if the present record provides enough evidence to suggest that a reasonable police officer could have made a valid arrest supported by probable cause, it does not establish with a sufficiently high degree of certainty that a reasonable officer would have made the arrest under the circumstances.” Op. 11 (emphases in original).

To justify the admission of improperly seized evidence, a court must have a “high degree of confidence” that “each of the contingencies needed to obtain the evidence legally would be resolved in the government’s favor.” Op. 13. And because Judge Hall joins this part of the opinion (Judge Cabranes strongly disagrees with Judge Calabresi’s interpretation of the inevitable discovery doctrine), it is the majority one. As the Court concludes, “illegally-obtained evidence will be admissible under the inevitable discovery exception to the exclusionary rule only where a court can find, with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor.” Op. 14.

One such “contingency” is whether the police would have actually exercised their discretion to arrest Heath after finding the dime bags. Thus, even though the police could have arrested Heath after finding the dime bags on the lower landing, the Government has to prove to the district court’s satisfaction that the police in fact would have done so. See Op. 17 (Government must show that "the contingent arrest was [both] proper [and] . . . inevitable"). Since it is a theoretical possibility that the police, in the exercise of their discretion, would not have arrested Heath despite having lawful authorization to do so, a remand for further fact-finding is required. See Op. 17 (remand required because "we cannot say [on the record before us] whether the likelihood of such an arrest was great enough to justify the application of the doctrine of inevitable discovery").

Although we disagree with Judge Cabranes’s view of the law, we share his skepticism about the need for a remand in light of the Court’s legal rulings. After all, the police actually arrested Heath even when (as assumed by the Court) the evidence was insufficient to support probable cause. Given this reality, it surely seems “inevitable” that the police would “exercise their discretion” to arrest Heath after finding additional evidence justifying a lawful arrest (as the Court concludes).