Thursday, August 31, 2006

How a Severed Horse's Head Is Like Fake Anthrax

United States v. Noel Davila, Docket No. 05-2545-cr (2d Cir. Aug. 30, 2006) (Leval, Parker, Sessions): Any opinion that references the severed-horse's-head-in-bed scene from "The Godfather" is a worthy read. Here, the Circuit principally rejects Davila's argument that the two statutes under which he was convicted, 18 U.S.C. § 2232a and § 876(c), criminalize only threats of future action and thus that his act of mailing an envelope containing phony anthrax (baby powder) and including a note containing the words "ANTRAX" (sic) and "AKA Bin Laden," did not fall within their reach. Relying on United States v. Taylor, 2003 WL 22073040 (S.D.N.Y. Sep. 5, 2003), Davila argued that the plain language of these statutes -- targeting anyone who "threatens . . . to use a weapon of mass destruction" or mails a communication containing any "threat to injure," respectively -- required this result. He claimed that "the use of the worlds 'threat' and 'threaten,' combined with the infinitives 'to use' and 'to injure,' limits the scope of both statutes to threats of future conduct on the part of the threatener." Op.6.

After canvassing several dictionaries, the Circuit rejected Davila's future-limited reading of "threat" or "threaten." A threat is an "indication or impression of impending danger or harm," the Court explained, and such an impression "is created not only by a communication promising to commit a dangerous act in the future, but also by the delivery of a substance that appears to be injurious." Op.7. Because Davila's "mailing was designed to create the impression that it contained a deadly substance, a reasonable jury could have found that it expressed an intention on his part to inflict bodily harm." Op. 8. And the fact that Congress subsequently enacted a statute (18 U.S.C. § 1038(a)(1)) that specifically targeted hoaxes of the type perpetrated by Davila did not require a different reading of the earlier statutes -- even though § 1038's legislative history indicates that its proponents sought its enactment because "a gap exists . . . in the current law[, which] does not address a hoax related to biological, chemical or nuclear dangers where there is no specific threat." Op. 10.

Finally, the Court concludes that even if the statutes were construed as limited to threats of future conduct, the evidence was sufficient to convict Davila. Here is the money paragraph:

"To illustrate by example, in the famous movie The Godfather (Paramount Pictures 1972), when the movie producer found in his bed the severed head of his horse, there could be no doubt that the delivery of the horse's head was not merely an announcement of a past act of violence but a threat of a future act of violence. The sending of a white powder with a reference to anthrax can reasonably be construed as a threat to send real anthrax the next time."

Op.12.

Wednesday, August 30, 2006

A Rare (but Limited) Double Jeopardy Victory

United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda's guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment (to which Olmeda pled guilty without a plea agreement) charged Olmeda with possessing ammunition "in the Eastern District of North Carolina and elsewhere" on or about June 13, 2002. At the time of that indictment, prosecutors in North Carolina were (1) aware that Olmeda simultaneously possessed ammunition in his New York area home (a search warrant was successfully executed in New York after cops found Olmeda with ammo in North Carolina); (2) not aware (and had no basis to believe) that the ammunition found in North Carolina had traveled in any other district; and (3) not aware (and had no reason to believe) that Olmeda possessed ammo anywhere other than New York and North Carolina. Op. 19. On those and other facts, the Circuit concluded that "a reasonable person familiar with the totality of facts and circumstances would construe the initial indictment [in North Carolina], at the time jeopardy attached in the first case, to cover the offense that is charged in the subsequent prosecution." Op. 16. Thus, the later SDNY prosecution is for the "same offense" and barred by Double Jeopardy Clause.

And in the course of resolving the Double Jeopardy issue, the opinion clarifies that Olmeda could have been charged in two separate indictments for his simultaneous possession of ammunition in North Carolina and New York. Although the basic rule is that "a convicted felon who simultaneously possesses various firearms and rounds of ammunition can generally only be charged with a single violation of § 922(g), [e.g., U.S. v. Pelusio, 725 F.2d 161, 168 (2d Cir. 1983),] multiple charges may well be warranted if the evidence shows that the felon acquired possession of the firearms or ammunition on different occasions, or that he stored them at different sites." Op.12-13. Thus, Olmeda could have been prosecuted "in each district for a separate possession violation under § 922(g), notwithstanding any temporal overlap in these possessions." Op.13.

Tuesday, August 29, 2006

At Last, a Reasonable Decision about Reasonableness Review

United States v. Eric Jones, Docket No. 05-2289-cr (2d Cir. August 2, 2006) (Newman, Walker, Katzmann): Others have already sung the praises of this terrific opinion by Judge Newman (click here for Professor Berman's comments and click here for the Second Circuit Sentencing Blog's) , but it is new to me since it was decided while I was on vacation. A late blog entry is appropriate because it is a decision that all who practice in this Circuit must read. And it is a decision that cleanses the palate of the unpleasant Guidelines-dominated taste left by the Court's recent Castillo and Mejia decisions.

In sum, Jones upholds a 15-month "non-Guidelines sentence," where the advisory range was 30 to 37 months, even though few unusual mitigating facts existed (and several aggravating facts were present) and where the district judge's principal justification for the below-the-range sentence was simply his "gut feeling . . . that Eric Jones is capable of doing much better." Op. 5. Along the way, Jones

(1) Rejects the Government's argument that the district court erred in relying on "the Defendant's education, emotional condition, favorable employment record, family support, and good record on state probation" in imposing the below-the-range sentence, because the "Sentencing Commission has concluded that these factors are ordinarily not relevant in determining whether a departure is warranted." Op.6. This argument is misguided, Judge Newman explains, because "Jones's post-Booker sentence is not a Guidelines departure; it is a non-Guidelines sentence." Id. And with the Guidelines scheme "rendered advisory" by Booker, "the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated ranges themselves." Id. While a court must continue to "consider" the Guidelines as well as its policy statements, "'consideration' does not mean mandatory adherence." Id.

This clear ruling dispels the fog created by footnote 4 of Rattoballi, in which Judge Walker (who dissents in Jones) attempts to resurrect the mandatory Guidelines by suggesting that a court cannot rely on Guidelines-disfavored facts (such as the defendant's age or employment history) in imposing a non-Guidelines sentence.

(2) Rejects the Government's argument that the district judge erred in invoking "the subjective component of his thinking" in imposing sentence. As noted, the judge said he had "the sense" that Jones is capable of doing better and that he had a "gut feeling" about Jones.

This criticism is misguided, the Court explains, because it "fails to appreciate the enhanced scope of a sentencing judge's discretion in the post-Booker world of advisory sentencing." Op. 7. Under the new sentencing regime, "the judge is not prohibited from including in [his or her consideration of the § 3553(a) factors] the judge's own sense of what is a fair and just sentence under all the circumstances." Id. Judge Cabranes would be proud -- there need be no "fear of judging": "That is the historic role of sentencing judges; and it may continue to be exercised, subject [only] to the reviewing court's ultimate authority to reject any sentence that exceeds the bounds of reasonableness." Id.

Moreover, the judge did not err in failing to explain why, precisely, "15 months, rather than, say, 14 or 16 months" was the appropriate sentence. Judge Newman explains that there is no requirement "for such specific articulation," since the "[s]election of an appropriate amount of punishment inevitably involves some degree of subjectivity that often cannot be precisely explained." Op. 8.

(3) Rejects the Government's claim that the 15-month sentence is substantively unreasonably. Judge Newman properly reaffirms the deferential posture of substantive reasonableness review, somewhat muddied by the over-intrusive and results-oriented tone of Rattoballi. Here, Judge Newman reminds us that the reviewing court "should exhibit restraint" in this regard and that a sentence will be found substantively unreasonable only "infrequently." Op. 9. And in keeping with that deferential posture, the Court does not say much about Jones's sentence in particular, stating only that "[W]e cannot say that, for a defendant with Jones's characteristics and background, 15 months of imprisonment is unreasonable for possession of a detectable amount of marijuana, even though exacerbated by possession of [3] guns." Op.10.

The Court also zings other panels and courts for upholding above-the-range non-Guidelines sentences while invalidating their below-the-range counterparts. Judge Newman's reminder is plainly true but unfortunately necessary: "[T]he discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up." Op.10. Take that, Eighth Circuit (e.g.)!

(4) And, finally, holds that failure to comply with § 3553(c)(2)'s requirement (that the specific reasons for a sentence outside the Guidelines range must be put in writing in the judgment of conviction) does not require vacatur of the sentence where the sentence is ultimately found reasonable on appellate review (as here). Rather, the appropriate remedy is a limited remand for correction of the judgment to include the written explanation. Op.13. Judge Walker principally dissents on this fascinating point.

Friday, August 25, 2006

Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion -- maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine -- under which a defendant can be held liable for his "knowledge" of fact X upon a finding that s/he was "aware of a high probability of" fact X's existence and "consciously avoided confirming that fact," United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) -- applies in a sting operation leading to a charge of money laundering, where it is the defendant's belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov's conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided "believing" that the cash he was dealing with were proceeds of drug trafficking.

Government agents set up a sting to snare Nektalov, a jeweler, by posing as Colombian drug dealers seeking to exchange hundreds of thousands of dollars in cash (in small denominations) for gold and jewelry. Because the whole thing was a ruse, Nektalov could not be accused of "knowing" that the cash he was accepting (in exchange for the gold and jewelry) were proceeds of drug activity -- knowledge being, after all, justified true belief.

Fortunately for the Government, the money-laundering statute accounts for this. Under 18 U.S.C. § 1956(a)(3)(B), a defendant can be liable if he "believed [the property involved in the transactions] to be the proceeds of [a] specified unlawful activity." The issue thus became whether Nektalov believed, in light of the circumstances, that he was dealing in drug proceeds. Nektalov pointed to his lack of fluency in English, as well as his unfamiliarity with the undercover's not-so-subtle references to "moving diamonds back down to Colombia" and explanation for why he was transacting in small denominations ("That's how they pay me in the streets."), in arguing to the jury that he did not believe that he was dealing in (what was allegedly represented by the undercover to be) drug money.

Over objection, the district judge gave a conscious avoidance charge to the jury, even though such charges are usually given only where the requisite mens rea is knowledge rather than belief. The jury convicted Nektalov on one count, and the Circuit affirms.

Principally, the Circuit held that the conscious avoidance doctrine "applies in the context of a sting operation with as much force to one's efforts to avoid certain belief as to one's efforts to avoid knowledge." Op.9. This is so because "belief is more properly understood as part of knowledge." Id. 9-10. After all, to know X is shorthand for "to have a justified and true belief that X: Knowledge encompasses belief. If conscious avoidance can stand in for actual knowledge, therefore, it can do the same for actual belief.

And applying the conscious avoidance doctrine to the sting context (involving belief) advances the same goal as applying it in the ordinary context (involving knowledge). The underlying idea, after all, is that a defendant who deliberately avoids learning about something, while aware of a high probability of that thing's existence, is as culpable as someone who is affirmatively aware of the thing's existence -- regardless of what the truth is. "The culpability of the wilfully blind defendant lies in his averting his eyes to what he thinks he sees," the Circuit explains, "not in the objective accuracy of his vision." Op.11. "[C]onscious avoidance encompasses a defendant's deliberately refusing to confirm the existence of one or more facts that he believes to be true, regardless of whether those facts actually are true." Op.12.

Circuit Gilds the Lily: Sentence within Guidelines Range Not Unreasonable Simply Because Judge Refused to Account for 100:1 Disparity in Crack Case

United States v. Park, Docket No. 05-6158-cr (2d Cir. Aug. 25, 2006) (Cabranes, Straub, Hall): We're not sure why the Circuit felt the need to publish this opinion in light of Castillo, but what's a few more trees felled for the cause of justice? In Castillo, the Circuit held that "a non-Guidelines sentence imposed simply because a district court disagreed with the 100:1 ration [is] unreasonable." Op. 7. Here, the Court confronts "the related question of whether the imposition of a Guidelines sentence for a crack offense is per se unreasonable as a result of the 100:1 ratio," where the Guidelines range was determined by the fact that crack (as opposed to power) was involved and where the judge imposed a sentence within that range. Id.

And the answer should be obvious in light of Castillo (indeed, one would think that the answer follows necessarily from Castillo, rendering this opinion pointless): "Just as it would be error for a sentencing judge to impose a non-Guidelines sentence of the basis of a disagreement with Congress's policy judgment regarding the 100:1 ratio [citing Castillo], it is not per se error for a sentencing judge to adhere to that policy judgment by imposing the sentence recommended by the Guidelines. We therefore hold, for the reasons set forth in Castillo, that imposition of a Guidelines sentence in a case involving a crack offense does not yield a sentence that is unreasonable merely because the Guidelines adhere to the 100:1 ratio that Congress . . . has seen fit to adopt." Op. 7-8.

As in Castillo, finally, the Circuit recognized that a defendant can seek a non-Guidelines sentence "in light of the specific circumstances of his case." Op.8. However, the mere fact that Park acted as an intermediary between the seller and the snitch buyer, along with the fact that it was the snitch who initiated the deals, was insufficient to render the sentence unreasonable. This was especially so because "the record makes clear that Park was fully aware of what substance was being sold and how much of it was at issue." Id.

Thursday, August 24, 2006

IEEPA's Delegation of Authority to President Is Constitutional

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act ("IEEPA"), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq's invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress's authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 (1991), in which the Supreme Court upheld a delegation of power to the Attorney General to expedite the designation of a substance as "controlled" by bypassing (for a limited time) several of the requirements for permanent scheduling. Op. 13. Touby explained that even assuming that "something more than an 'intelligible principle' is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions," the challenged statute would pass muster under that heightened standard. Without deciding whether something more than an "intelligible principle" is needed to sustain a congressional delegation involving criminal sanctions, the Circuit found that "the IEEPA's delegation is subject to constraints similar to those found sufficient in Touby." Op. 14.

Moreover, there were factors here weighing in favor of constitutionality that were absent in Touby. "Specifically, the IEEPA relates to foreign affairs -- an area in which the President has great discretion," and "[a]dditionally, Congress has endorsed the President's actions and enacted legislation codifying the sactions." Op. 15. There is, therefore, "no question that 'the will of Congress has been obeyed.'" Id.

Tuesday, August 22, 2006

Prosecutor Cannot Avoid Brady Obligation by Claiming that He Did Not Believe Witness's Exculpatory Statement

Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani): In this decision, the Circuit (1) reverses the district court's grant of habeas based on insufficiency of the evidence (on the ground that Disimone failed to raise an insufficiency claim to the state appellate courts and cannot demonstrate cause and prejudice for the procedural default), but (2) remands for further fact finding on Disimone's Brady claim (specifically, whether defense counsel knew or had reason to know of a witness's exculpatory statement), which the district court summarily rejected in light of its grant of habeas on insufficiency. Judge Calabresi's opinion discusses many distinct issues, but this Blog will focus on its fine discussion of the prosecutor's failure to abide by his obligations under Brady.

The essential facts are these. The victim was stabbed to death during a late-night fight outside a Yonkers nightclub involving numerous participants. Forensic evidence showed that he was stabbed 13 times -- including once through the heart and once through the lung -- and that each wound contributed to his death.

No eyewitness testified. The State's principal witness was an ex-associate of Disimone, who testified in exchange for leniency in an unrelated murder case. That witness said that he saw Disimone run from the scene of the crime with a knife in hand and that Disimone admitted stabbing the victim. The State also introduced forensic evidence showing that blood on Disimone's clothing matched that of the victim.

Despite numerous requests, the prosecutor refused -- until very late in the trial -- to turn over evidence that one Nick Djonovic had told a relative that (1) he twice stabbed the victim, including once in the chest; and (2) Disimone thereafter stood over the victim and stabbed him as well. When defense counsel finally received this evidence near the close of the State's case, he sought a continuance (which was denied) and then a mistrial (also denied). Disimone was convicted and state courts affirmed his conviction.

On federal habeas, he argued inter alia that his right to receive material exculpatory evidence was violated by the prosecutor's failure to disclose timely Djonovic's statement. Disimone claimed that, among other things, Djonovic's confession could have been used to persuade the jury that whatever Disimone's role was in the fight, he was "not responsible for causing [the victim's] death." Op. 25. This was supported by the fact that the medical examiner "could not tell the order of the stab wounds but said that if the stab to the heart were the first one," it would have been sufficient to kill the victim. Id.

On these facts, the Circuit largely agreed with Disimone that the prosecutor violated his obligations under Brady, and remanded solely for further fact-finding concerning whether defense counsel somehow knew or should have known about Djonovic's statement independently. Op. 27-28.

Importantly, the Circuit rejected the State's claim that Djonovic's statement was not exculpatory because it did not find him credible. The prosecutor explained to the trial judge, for instance, that he was not required to turn over the statement because "the information contained in that affidavit was thoroughly investigated by my office and negated on several counts . . . [as] basically a lie." Op. 21. As a result, he claimed, Djonovic's statement did not qualify as Brady material: "[T]here may be situations in which a prosecutor, in his discretion, may fairly keep to himself knowledge of available testimony [apparently exculpating the defendant], which he views as mistaken or false." Id.

Sound familiar? We here at the FDNY have heard the same lame excuse from win-at-all-costs AUSAs. Hopefully, defense counsel will no longer have to put up with such nonsense, as the Circuit flatly rejected it: "If there were any questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel -- and not of the prosecution -- to exercise judgment in determining whether the defendant should make use of it." Op. 23. Judge Calabresi then approvingly quotes a district court opinion stating the same: "If the evidence is favorable to the accused, then it must be disclosed, even if the prosecution believes the evidence is not thoroughly reliable." Id. (emphasis added). "To allow otherwise," the Circuit concludes, "would be to appoint the fox as henhouse guard." Id.

A terrific line, and one that all defense counsel should be ready to spring on an ethically challenged prosecutor.

Government's Scattershot Implementation of Fast-Track Programs Does Not Create Unreasonable Sentences in Non-Fast-Track Districts

United States v. Mejia, Docket No. 05-3903-cr (2d Cir. Aug. 22, 2006) (Jacobs, Parker, Oberdorfer): In holding that a sentencing court has no authority to reconsider or reject the Guidelines' 100:1 treatment of powder vs crack cocaine, the Circuit last week in Castillo specifically rejected the defendant's argument that § 3553(a)(6) -- instructing district courts to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" -- permitted a sentencing court to impose a non-Guidelines sentence when it believed that a Guidelines sentence would produce an unwarranted disparity. The Court explained that "[w]hile the 100:1 ratio clearly produces a disparity, it is one that Congress has mandated [and] one that Congress has continually refused to alter . . . ." Op. 35-36.

More bad news today: In Mejia, litigated by Deirdre von Dornum of this Office, the Court relies on similar reasoning in "holding that a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." Op. 17. The Court specifically rejects the applicability of § 3553(a)(6) in the fast-track context with an explanation similar to that offered in Castillo: "Congress expressly approved of fast-track programs without mandating them; Congress thus necessarily decided that they do not create the unwarranted sentencing disparities that it prohibited in Section 3553(a)(6)." Op. 14.

The Court's self-described holding is narrow -- a sentence is not unreasonable simply because it is imposed in a non-fast-track district. But its statement rejecting the relevance of § 3553(a)(6) to the fast-track issue seems to signal a broader proposition -- that a sentencing court simply may not consider the existence of fast-track programs in other districts when sentencing a defendant in a fast-track district.

Thursday, August 17, 2006

District Courts Cannot Reject Guidelines' 100:1 Disparity Between Powder and Crack Cocaine even under the "Advisory" Guidelines Regime

United States v. Castillo, Docket No. 05-3454-cr (2d Cir. Aug. 16, 2006) (Katzmann, Sack, Murtha): To those who had hoped that our fair Circuit would have more sense than the First, Fourth, and Seventh Circuits, ... think again. In Castillo, the Second Circuit follows those Circuits in vacating and holding unreasonable a sentence based solely on the district court's policy disagreement with the Guidelines' 100:1 treatment of powder -vs- crack cocaine. While the Circuit left open the possibility of sentencing "adjustment[s] [based upon] the particularities of the individual defendant or the specific offense," the same suggestion made in United States v. Anati, Docket No. 05-3800 (2d Cir. July 20, 2006), it firmly concluded that "district courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds." Op. 2-3. Click here and here for Professor Berman's stinging critique of Castillo.

Friday, August 11, 2006

Normal Programming Will Soon Resume

My lengthy vacation has ended recently, and thus this Blog will soon resume its normal activity. Thank you for your patience and continued interest.

Friday, August 04, 2006

Charge That Defendant's "Deep Personal Interest" Creates "Motive for False Testimony" Requires Reversal

United States v. Prince Gaines,Docket No. 04-5616 (Jacobs, Parker, Gleeson(D.J.)) : In a close gun-possession case, in which the defendant testified that he had not known of the presence of a gun found hidden (or less hidden) in a gypsy cab seat where he was a passenger, the Court found reversible error in a charge on the defendant's interest in the case. The district court charged the jury that the defendant "has a deep personal interest in the result of the prosecution," that this "interest creates a motive for false testimony," and that "the defendant's testimony should be scrutinized and weighed with care."

In a fine opinion, the Court of Appeals held that the charge that the defendant's interest created a "motive for false testimony" was error because it undermined the presumption of innocence, for it assumed that the defendant was guilty. In addition, after surveying the case law on charges noting the "deep personal interest" of the defendant, the Court found that there was no need to give, and much danger in giving, such a charge. Accordingly it instructed that "in future cases, district courts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case." The defendant's interest should be addressed only in the court's general charge on witness credibility, and the jury should be told to assess a defendant's testimony in the same way it judges testimony of other witnesses.

Congratulations to Darrell Fields on this fine result.

Increased Sentence Following Post-Booker Remand Upheld

United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court's decision in Booker. Upon remand the district court raised the sentence to 57 months' imprisonment, relying on facts all of which had been in the record before and noting that previously it had "felt constrained" by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce that the sentence was presumptively vindictive and violated due process. The Court, however, held that the Pearce "presumption does not apply in this case because there is no reasonable likelihood that Singletary's increased sentence was the product of the sentencing judge's actual vindictiveness." This holding, however, is entirely circular. It does away with the Supreme Court's presumption of vindictiveness on the basis of its own finding that the district court was not vindictive. This is illogical on the one hand and in clear conflict with Pearce on the other.

That presumption the Supreme Court created in Pearce requires a higher sentence on remand to be struck down unless the government can overcome it by showing some factor, not present at the initial sentencing, that justified a higher sentence on remand. The Court acknowledged that there were no new facts at Singletary's resentencing justifying a higher sentence and that the district court had the legal power to impose the higher sentence at the first sentencing proceeding, but did not. The Court's alternate conclusion that, even assuming the presumption applied, "[n]othing in the record before us suggests that the district court had any vindictive motive" also gets things backward. If the presumption applies, as it clearly does to a resentencing following remand, the defendant does not have to prove a vindictive motive; rather, the government must overcome the presumption. Here, since there was nothing to overcome the presumption, there should have been a reversal.

The point of Pearce was to create a prophylactic rule that would safeguard a defendant's right to appeal from being chilled by the fear that a judge could raise his sentence vindictively, and it requires that an increased sentence be based on objective facts justifying a higher sentencing arising since the first sentence, not a judge's mere change of mind in the interim. This decision is in direct conflict with this objective of Pearce, and it poses grave problems for defendants and for those who must adivise them whether or not to appeal. It richly deserves to be overturned, summarily, by the Supreme Court.