Thursday, September 28, 2006

"Endeavoring" to Obstruct On-Going Investigation Same as Obstructing Investigation for Guidelines Purposes

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of "endeavoring" to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503's "omnibus" clause, Section 2J1.2(c) of the Guidelines -- the general obstruction Guideline that requires, via cross-reference, the use of Section 2X3.1 (accessory after the fact) whenever the "offense involved obstructing the investigation or prosecution of a criminal offense" -- governs. Giovanelli argued that because he was convicted only of endeavoring to obstruct rather than actually obstructing, § 2J1.2(c) (and a fortiori § 2X3.1) was not implicated. Cf. United States v. Aguilar, 515 U.S. 593, 601-02 (1995) (explaining that "endeavoring" prong of § 1503 "makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way."). This was important because while § 2J1.2 sets a base offense level of 14, § 2X3.1 sets a significantly higher base offense level (here, 30) because the criminal investigation Giovanelli endeavored to obstruct concerned, among other things, murder. The Court disagreed, joining the other four Circuits that have ruled on this issue. Op. 12.

Wednesday, September 27, 2006

District Court's Refusal to Depart Not Appealable

United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court's discretionary refusal to depart (subject only to the "misapprehension of authority to depart" exception). Though this is well-settled law, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005), some of you out there (and you know who you are) apparently have not gotten the message. So stop raising those "failure to depart" arguments!

Friday, September 22, 2006

Act of Contempt Committed in Courthouse Cafeteria Does Not Qualify as Act Occurring "in the Court's Presence or So Near Thereto"

United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan's criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting "[m]isbehavior of any person in [the court's] presence or so near thereto as to obstruct the administration of justice." Essentially, Rangolan was convicted under § 401(1) for approaching a juror, during a civil trial in which Rangolan was a plaintiff, in the cafeteria of the courthouse, at 9:15 a.m. (and thus before the trial session started that day), and showing the juror a document supporting Rangolan's claims. The cafeteria was on the 1st floor, while the trial was occurring on the 10th floor.

The Circuit vacates the conviction, finding that Rangolan's contumacious act did not occur "in the court's presence or so near thereto" within the meaning of § 401(1). It relied principally on the fact that the act occurred at a location geographically distant from the courtroom and at a time when court was not in session, but also considered the "non-judicial" nature of the place where the act occurred. Here's the money paragraph:

"Rangolan's misbehavior occurred not in court, but in a cateteria ten floors below the courtroom. Unlike jury rooms, or immediately adjacent hallways, the cafeteria is not a place 'set apart' for official court business, or for the use of jurors or other trial participants. The juror was not on official business but was simply having breakfast. Moreover, Rangolan's misbehavior took place at 9:15 a.m., before the court was in session. [citation omitted]. Deeming the court 'present' in a public cafeteria ten floors below the courtroom and not shown to have been separated out for court business, at a time when court is not in session, distorts the important geographical and temporal limitations Congress intended when it passed . . . § 401(1) to, in part, limit the contempt power."

Op.11. Unfortunately, the opinion does not clarify whether all, or only some, of these factors -- geographic proximity, temporal relatedness, and functional equivalence -- must be present to sustain a § 401(1) conviction. But since none of these conditions attained in Rangolan's case -- the act occurred in a "non-judicial" location not near the courtroom and at a time when court was not in session -- vacatur of her conviction was required.

Monday, September 18, 2006

Government's Refusal to Move for Third Acceptance Point under § 3E1.1(b) Subject to Same Constraints as Its Refusal to File § 5K1.1 Motion

United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness of the defendant's guilty plea and its effect on the Government's need to prepare for trial. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal). The opinion chooses to answer, instead, some peripheral questions not really subject to serious dispute: (1) a Government motion is generally required to get the 3rd point under § 3E1.1(b); and (2) the Government's refusal to file such a motion may not be based on unconstitutional motives and, in the case of a plea agreement, may not be rooted in bad faith. Because the Government's refusal to move for the 3rd point here was based on its good-faith belief that the defendant falsely claim that he did not perjure himself at the suppression hearing, the Court affirms the sentence.

The problem with the opinion is that it fails to address the plain language of § 3E1.1(b), providing that a defendant qualifies for the 3rd point if (1) the offense level is 16 or greater; (2) the defendant has been granted the 2-levels for acceptance under § 3E1.1(a); and (3) the Government states in a motion that "the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently . . . ." U.S.S.G. § 3E1.1(b) (emphasis added); see id. comment. (n.6) (noting that Government motion is required under subsection (b) "[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial . . . ."). Here, the Government initially agreed to moving for the 3rd point in the plea agreement, but then reneged on this promise when Sloley disputed the application of a 2-level obstruction enhancement (which he had earlier agreed to in the plea agreement) based on his suppression hearing testimony. As the Court finds, "the record shows that Sloley's reneging on his admission to perjury . . . is what led the government to conclude that he had not accepted responsibility to the prosecutor's satisfaction." Op.12.

The real question, then, is whether this particular reason -- which has nothing to do with the timeliness of Sloley's guilty plea and the avoidance of trial preparation for the Government -- justifies the Government's refusal to move for the 3rd point, in light of the Guideline's plain language linking the motion to these particular concerns. Unfortunately, the Circuit fails to confront this difficult question, instead falling back upon generalities and platitudes -- e.g., the obvious requirement that a Government motion is generally necessary to get the 3rd point -- in affirming the sentence.

Nonetheless, the opinion does establish that the Government's refusal to move for the 3rd point is subject to the same limits and constraints governing its refusal to file a 5K1.1 motion for substantial assistance. Op.9-12. That is, the Government may not refuse to move for the 3rd point because of unconstitutional reasons (e.g., the defendant's race or religion) or based on bad faith.

Saturday, September 16, 2006

State Must Appoint Counsel before Dismissing (as Discretion) First-Tier Appeal under Fugitive Disentitlement Doctrine

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division -- the state's first-tier, "as of right" appellate court -- exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without first appointing counsel? The Circuit, by Judge Calabresi, says no, relying on the "rationale" of Douglas v. California, 372 U.S. 353 (1963), that appellate counsel must be appointed for an indigent defendant who seeks a first-tier, as-of-right appellate review that "(1) involves some consideration of the 'merits', and (2) involves claims that have not yet 'been presented by [appellate counsel] and passed upon by an appellate court.'" Op.9. While counsel likely need not be appointed if New York (like Texas) had an automatic dismissal rule based on a defendant's flight during the appeal, New York's decision to adopt a discretionary fugitive disentitlement rule required the appointment of counsel before that discretion can be exercised against the indigent defendant.

Friday, September 15, 2006

Guilty Plea in State Court Does Not Necessarily "Waive" Fourth Amendment Claim in Later Federal Prosecution Arising from Same Incident

United States v. Gregg, Docket No. 03-1229-cr (2d Cir. Sep. 12, 2006) (Feinberg, Sotomayor, Hall) (per curiam): This decision nicely explains the meaning and consequences of a guilty plea for subsequent proceedings arising from the same incident. The Court correctly rejects the district court's broad-brush ruling that Gregg's guilty plea in state court to a misdemeanor involving the misuse of his mother's reduced-fare Metrocard effectively waived his right to challenge the lawfulness of the stop that lead to his arrest (and the recovery of a firearm) in a subsequent federal prosecution for being a felon-in-possession. While a guilty plea "conclusively establishes" the defendant's guilt, it does not necessarily extinguish all related issues; on the contrary, whether the plea forecloses a future cause of action or legal claim depends primarily on principles of collateral estoppel.

The essential facts are these. Police officers at a subway station saw Gregg going through a subway turnstile using a Metrocard. A "red light" signal was lit, indicating the use of a reduced-fare Metrocard ("issued only to the elderly or the disabled"). Gregg appeared neither elderly nor disabled. The police approached Gregg on the platform, asked for his Metrocard, saw his mother's name and photo on the card, and arrested him. A gun was recovered from Gregg as a result.

Gregg was charged in state court with criminal possession of a gun, but the grand jury refused to indict (what's not to love about the Bronx!). Eventually, Gregg disposed of the state case by pleading guilty to a charge of "criminal impersonation" and serving 15 days in the can.

Unfortunately, the federal grand jury was not as charitable as its Bronx counterpart and subsequently indicted Gregg under § 922(g)(1) as a felon in possession of a firearm. Gregg moved to suppress the gun, claiming that the police had no reasonable suspicion to stop him in the first place. The district court denied the motion, (badly mis)reading the caselaw as holding that a guilty plea extinguishes all subsequent Fourth Amendment challenges, regardless of the particular context.

The Circuit held that the district court erred in so ruling but upheld the denial of the suppression motion, anyway, because, allegedly, "undisputed facts in the record indicate the police officers stopped Gregg and questioned him regarding his apparently unjustified use of a disability Metrocard. Such facts are sufficient to establish reasonable suspicion under Terry." Op.10. (I am always skeptical when the Court affirms on a ground not reached below, but since I do not quite understand what the Court is actually saying, or all of the facts, no further explanation will be offered on this alternative holding.)

In any event, the Circuit clarifies that a guilty plea does not constitute, as a general matter, a broad waiver of all legal claims arising from the same incident. Rather, a valid guilty plea simply constitutes conclusive evidence of factual guilt. Thus, a defendant who pleads guilty may not raise a Fourth Amendment claim on appeal not because he has waived this claim, but because it is irrelevant to the validity of the conviction challenged on appeal -- "how the supporting evidence was recovered is irrelevant" to the fact of the defendant's guilt. As the Supreme Court explained in Menna v. New York, 423 U.S. 61, 62 n.2 (1975), a guilty plea "renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established."

Thus, in Haring v. Prosise, 462 U.S. 306, 321 (1983), the Supreme Court held that a defendant's earlier guilty plea to manufacturing drugs in state court did not bar him from later filing a § 1983 claim against the law enforcement officers who searched his apartment (and found the drugs). This was so because the guilty plea (1) did not involve any actual litigation over the legality of the search of Prosise's apartment; (2) the criminal proceeding did not decide any issue upon which Prosise must prevail in his § 1983 action; and (3) it was not established that any of the issues in the § 1983 action could have been "necessarily" determined in the criminal proceeding. Op. 7. The Circuit read Prosise to mean that "the preclusive effect of a guilty plea entered in state court upon subsequent federal proceedings is determined on the basis of collateral estoppel and the full faith and credit statute." Op. 8.

Applying Prosise, the Circuit found that the "legality of the firearm seizure simply was not at issue when Gregg pleaded guilty to criminal impersonation" by using his mom's Metrocard. Op. 9. Thus, the earlier plea did not bar him from challenging the recovery of the gun on Fourth Amendment grounds in the federal prosecution

Presence within 200 Feet of Scene of Possible Burglary in a "High Crime Area" Sufficient to Justify Terry Stop

United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit's jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted an amicus curiae brief arguing that the stop was unlawful). Essentially, the Court held that the fact that McCargo was at a street corner approximately 200 feet from the scene of a possible crime (i.e., a house in which the occupant had called 911 to report a break-in), in a "high crime" neighborhood, is sufficient to permit the police to throw him against the police car and frisk him under Terry. There is a bit more than that, but nothing that should have made a difference.

The essential facts are these. At about 1 a.m., a caller at 501 Berkshire Avenue (in Buffalo) called 911 to report that someone was attempting to break into his residence. One police car responded quickly and parked in front of the residence.

Shortly thereafter, police officers in a second police car decided to respond to the same 911 call. As they drove on Berkshire toward the scene, they saw McCargo crossing the street at an intersection about 200 feet from 501 Berkshire. The officers claimed that McCargo was looking "intently" at the first police car (parked in front of 501 Berkshire), and that the general area was considered a "high crime neighborhood" (undefined, of course).

The officers in the second police car got out, grabbed McCargo, frisked him, and found a gun. They claimed at the suppression hearing that they did so because (1) they wanted to transport him to 501 Berkshire in the back seat of the police car so that the victim can either identity or not identify him; and (2) police department policy required a frisking of anyone transported in a police car.

The Circuit, by Judge Walker, concludes that all aspects of the police's action, from the stop of McCargo to the frisk, was lawful. Indeed, the opinion principally discusses what this Blog thinks is nearly a non-issue -- whether, if the police had reasonable suspicion to stop McCargo in the first place, they were justified in (1) their decision to transport him to the crime scene, Op. 9-13; and (2) their decision to frisk him pursuant to the department's policy, id. 13-19. From our perspective, the real question -- the one the Circuit got badly wrong -- is the preliminary one: Did the police have reasonable suspicion to stop McCargo in the first place?

Simply put, the Circuit relies on three "facts" to sustain the police's decision to seize McCargo: (1) His presence at a location about 200 feet from the crime scene; (2) his "staring at" the police car parked in front of the same; and (3) the "fact" that the area is, in the officers' opinion, a "high crime" one.

We think it self-evident that the first two are insufficent to justify a Terry stop: Presence alone, coupled with the near-reflexive act of looking at a police car (which likely had its lights on and sirens flashing), falls far short of the requirment of "specific and articulable facts" warranting a reasonable suspicion that the defendant has committed a crime. Even worse, the Circuit commits a "category mistake," as the logicians say, in throwing in the "high crime neighorhood" rationale to support the stop.

The mistake is this: This rationale is relevant only when the question is whether a crime has been committed in the first place, and is irrelevant when the question is (as here) whether this particular person has committed the crime (which, as a result of the 911 call, the police can assume occurred). In Illinois v. Wardlow, 528 U.S. 119 (2000), cited by the Circuit, the Supreme Court held that the police were justified in stopping Wardlow when he and others, present in an area known for heavy narcotics trafficking, fled immediately upon seeing police cars drive by. There, the police had no reason to believe that any particular crime had been committed. But Wardlow's flight gave them reason to believe that he may have done something wrong, especially given that he was present in an area with a high incidence of criminal activity.

Here, however, the undisputed assumption (in light of the 911 call) is that a crime (specifically a burglary at 511 Berkshire) has been committed. The question, therefore, is whether this particular person -- McCargo -- committed that crime. In this context, the general incidence of crime in the neighborhood is simply irrelevant to the Fourth Amendment question -- whether there is reasonable suspicion to believe that McCargo participated in the attempted burglary of 501 Berkshire Avenue.


Regarding the remainder of the opinion, we will point to only one particularly troubling statement. As noted, the Circuit also ruled that given the lawfulness of the initial stop, the officers acted reasonably in deciding to transport McCargo to 501 Berkshire in the police car. Responding to an argument that there was a less intrusive alternative than this -- i.e., the police could have simply walked the 200 feet to the scene with McCargo -- the Circuit rejected the alternative with this explanation: "[W]alking McCargo to the crime scene might have meant leaving the car unattended in a high-crime area." Op. 11-12.

This must be one helluva bad neighborhood -- even the police can't leave a locked patrol vehicle unattended for more than a few minutes! Even when the immediate area is swarming with police and police cars!

It is sad when judges are so far removed from reality. The rest of us may be familiar with the realities of life in densely populated, multi-racial, or (egads) minority-majority urban areas (also known as "high crime neighborhoods"), but apparently the Article III lords are not.

Thursday, September 07, 2006

Anonymous Tip plus Defendant's Flight upon Seeing Police Sufficient to Sustain Terry Stop

United States v. Muhammad, Docket No. 05-4923-cr (Miner, Wesley, Swaine): This minor opinion upholds a Terry stop justified by (1) an anonymous 911 call describing someone fitting the defendant's appearance and location as carrying a gun, and (2) the defendant's (supposed) "headlong flight" when the police car approached him. Although the tip alone would have been insufficient under Florida v. JL, 529 U.S. 266 (2000), the police's observation of the defendant's "flight" distinguished this case from JL. Op. 11 ("The officers' personal observation of Muhammad's evasive conduct was the additional factor, missing in JL, that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot.").

The Circuit also rejected Muhammad's claim that he did not flee from the police, but simply tried to avoid crashing into the police car as it cut him off. And, no surprise, despite conflicting testimony, e.g., Op. 3, and some dubious fact-finding by the magistrate judge, id. 12-13, the Circuit found no clear error.

Tuesday, September 05, 2006

A Ho Hum Opinion

United States v. Snow et al., Docket No. 05-0968-cr (L) (2d Cir. Sep. 1, 2006) (Jacobs, Pooler, Gibson): Nothing of interest to non-parties in this fact-based opinion affirming the conviction and sentence of three defendants for various crack and gun-related offenses. The sole point worth mention concerns whether the evidence was sufficient to convict one defendant of (constructively) possessing crack with intent to distribute, where the crack was hidden in the basement of a building in which the defendant co-rented a 2-bedroom apartment. Judge Gibson for the majority ruled that the evidence was sufficient, distinguishing this case from United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (evidence of possession insufficient even though defendant had been in the back seat of a car near where drugs hidden in a box were subsequently found). Op.29-30. Judge Pooler dissents on this point alone, concluding that Rodriguez was indistinguishable. Op.37 ("Presence at the location of hidden drugs, even where there is evidence that location is partially under the defendant’s control, is insufficient to support constructive possession.").