Friday, December 22, 2006

Where Record Is Unclear, Defendant Must Raise IAC Claim, Based on Counsel's Failure to File Timely Notice of Appeal, in a § 2255 Petition

United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the defendant's failure to file a timely pro se notice of appeal. In Fuller, it was undisputed that Fuller timely asked his attorney to file the notice of appeal, and that the attorney failed to do so. As a result, the Circuit dismissed Fuller's late appeal, but remanded the case to the district court with instructions to vacate the judgment and enter a new judgment, so that Fuller can timely appeal from the new judgment.

The Circuit denies the same remedy to Moreno-Rivera, however, and dismisses his late appeal. This is because, in contrast to Fuller, it is not entirely clear here why a timely notice of appeal was not filed. Specifically, it is not undisputed, as it was in Fuller, that trial counsel "failed to file a requested appeal," which of course would establish Moreno-Rivera's IAC claim. See Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002). Rather, the Court concluded, "we cannot ascertain on this record whether Moreno-Rivera actually gave timely instructions to his trial counsel to file an appeal." Op. 5-6. Thus, the usual rule applies: IAC claims requiring development or supplementation of the factual record should be heard not on direct appeal but in a collateral attack via § 2255. See Massaro v. United States, 538 U.S. 500, 504-05 (2003).

Tuesday, December 19, 2006

Horizontal Relatedness for RICO Purposes May Be Proven by Evidence of Vertical Relatedness

United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of "horizontal relatedness" between the alleged predicate acts -- i.e., proof that the predicates are related to each other -- may be satisfied by the same evidence used to prove "vertical relatedness" -- i.e., evidence establishing that the predicates are related to the RICO enterprise. Daidone, a made guy in the Luchese family of LCN, complains on appeal that his RICO convictions under § 1962(c) & (d) must be vacated because the three predicate acts (two whackings and a long-term shylocking) "were committed years apart, by different people and for entirely different reasons," and thus did not constitute a "pattern of racketeering activity" as required under RICO. He especially complains that the prosecution's evidence showed, at best, that the predicates were linked to the RICO "enterprise," i.e., the Luchese family, but did not demonstrate that the predicates were related to each other.

The Circuit rejects this argument and affirms Daidone's conviction. It agrees, first, that under Circuit law, proof of "relatedness" among the predicate acts -- derived from the statute's reference to a "pattern of racketeering activity" -- requires proof both that the acts are "related to each other ('horizontal' relatedness), and . . . related to the enterprise ('vertical' relatedness)." Op. 7 (quoting United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992)); id. 8 ("To form a pattern of racketeering activity, predicate acts must be related to each other and to the enterprise."). Second, vertical relatedness may be proven by evidence showing either that (1) "the defendant was enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise," or (2) "the predicate offenses are related to the activities of that enterprise." Op. 7. Third, horizontal relatedness may be established by evidence showing that "each predicate act is related to the RICO enterprise." Id. (quoting United States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998)). This is because "predicate crimes [linked to the same enterprise] will share common goals (increasing and protecting the financial position of the enterprise) and common victims (e.g., those who threaten its goals), and will draw their participants from the same pool of associates (those who are members and associates of the enterprise)." Op. 8-9.

Therefore, "the requirements of horizontal relatedness can be established by linking each predicate act to the enterprise, although the same or similar proof may also establish vertical relatedness." Op. 7. And because the Government "sufficiently demonstrated that each of Daidone's three predicate acts . . . were related to the Luchese enterprise," it satisfied both aspects of the relatedness inquiry. Op. 10.

Friday, December 08, 2006

Failure to Provide Prior Notice of Upward Variance Constitutes Plain Error

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) prior to sentencing. Here, the Court extends Anati and holds that failure to provide the notice required by Anati constitutes "plain error" warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.

Wednesday, December 06, 2006

State Felony Conviction for Simple Drug Possession Is Not an "Aggravated Felony" within Meaning of the Immigration and Nationality Act

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an "aggravated felony" for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, the Court dismissed that criminal case in a one-sentence order stating that the "writ of certiorari is dismissed as improvidently granted."

This outcome yields some uncertainty for those who practice in the Second Circuit, because this Circuit has divergent holdings on this issue depending on whether it arises in the immigration context or the Guidelines context. Thus, on the one hand, the Circuit ruled in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), that a state possession felony is not an aggravated felony in the immigration context. On the other hand, the Circuit ruled in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), that a state possession felony is an aggravated felony in the Guidelines context. Thus, Lopez could be read very narrowly as simply affirming Aguirre, and saying nothing about Pornes-Garcia -- a very bad result for defendants in this Circuit.

There are, however, very strong arguments to be made that (1) Lopez applies to the Guidelines context as well (see especially Op. at 2 and 10, which seems to equate the two contexts), and that (2) the Circuit's divergent reading of "aggravated felony" in the two contexts is itself wrong (see footnote 8 of the Supreme Court's Leocal decision, stating that statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context"), and thus that Lopez requires a ruling that a state possession felony is not an "aggravated felony" in either context. Indeed, we do not yet know what the Government's position on this is -- DOJ may well concede that the same term should be read the same way in either context.

Our colleague Steve Sady of the Oregon FPD has already come up with some strong arguments for extending Lopez to the Guidelines context. (Luckily for us, the 9th Circuit had the same two-faced reading of "aggravated felony" as the 2d Circuit, pre-Lopez). Click here for his discussion.

In any event, everyone should be on the lookout for this issue, and object to any attempt to follow Pornes-Garcia after Lopez.

Friday, December 01, 2006

Civil Rights Violation Qualifies as "Crime of Violence" for Purposes of § 924(c)

United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone's civil rights when either "bodily injury results" or involved "the use, attempted use, or threatened use of a dangerous weapon") and (2)18 U.S.C. § 241 (conspiring "to injure, oppress, threaten, or intimate" a person exercising his/her civil rights) both qualify as a "crime of violence" under 18 U.S.C. § 924(c) (mandating additional consecutive sentence when a firearm was possessed / used / brandished "during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States"), which defines a "crime of violence" as a felony that either "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," 18 U.S.C. § 924(c)(3).

The Court's conclusion is not particularly surprising, though one may question its reading of § 241. The opinion is nonetheless useful as a reminder that in determining whether an offense qualifies as a "crime of violence," a court must take a "categorical approach" that "focus[es] on the intrinsic nature of the offense rather than on the circumstances of the particular crime." Op. 4. Thus, in deciding whether Offense X constitutes a "crime of violence," "only the minimal criminal conduct necessary for conviction under [] statute [X] is relevant." Id. (emphasis added).