Wednesday, January 31, 2007

Fight the Power ... Fight the Power that B(OP)

Our colleague Steve Sady of the Federal Public Defender Office in Oregon has prepared another extremely useful resource, this time discussing BOP issues affecting our clients before and after sentencing. The memo discusses, among other things, the status of litigation concerning the BOP's view of halfway house placement, the calculation of good-time credit, and eligibility for § 3621(e)'s one-year sentence reduction for completing a residential substance-abuse treatment program.

Click here for a PDF copy of this very useful document. And print out an extra copy for your favorite litigious client!

Prosecutorial Gamesmanship Deemed Sleazy but Harmless

United States v. Chin, Docket No. 06-1048-cr (2d Cir. Jan. 30, 2007) (McLaughlin, Sack, Rakoff): This is yet another instance in which the Court scolds a prosecutor for sleazy misconduct at trial, but then renders its bite toothless by deeming harmless the misdeed. I suppose this is better than simply overlooking the misconduct, as the Court often does, but then I'm not the one who has to do the time.

Chin was charged with pretending to be an INS officer and defrauding aliens by telling them that he could obtain U.S. visas for them for a fee. To prove his guilt, the Government offered victim witnesses who said that they met with the defendant in China on particular dates. In his defense, Chin attempted to introduce into evidence credit-card receipts, complete with his signature, showing that he was actually in New York on the those same dates. The judge at the first trial refused to admit the receipts into evidence, however, and Chin was convicted. On appeal, the Circuit vacated his conviction, finding that the trial court erred in not admitting the receipts. United States v. Chin, 371 F.3d 31 (2d Cir. 2004).

Before the retrial, defense counsel notified the Government that it intended to call a handwriting expert at trial to testify that the signatures on the receipts were indeed Chin's. This notice conformed with the requirement of defense-expert disclosure set forth in Fed. R. Crim. P. 16(b)(1)(C). The Government, however, gave no notice that it too intended to call a handwriting expert. As expected, Chin introduced the New York credit-card receipts at trial, and then called the handwriting expert to testify that the signatures on the receipts belonged to Chin.

One day before the close of the defense case, the Government announced that it would call its own handwriting expert in its rebuttal case. The Government had retained the expert well before the start of the trial, and had even obtained from him a written opinion challenging the authenticity of Chin's signatures on the credit card receipts. Op. 3. But the Government had not provide any notice of this to the defense, justifying its sandbagging through the language of Rule 16(a)(1)(G), which requires pretrial disclosure of expert testimony only if the Government intends to elicit such testimony in "its case in chief." Over objection, the trial court allowed the Government expert to testify, though it granted a one-day adjournment to allow the defense to prepare for the cross of the expert. Chin was convicted, and he appealed again.

The Circuit was clearly unhappy with the prosecutor's gamesmanship, describing it as "sharp practice [] unworthy of a representative of the United States." Op. 4. And although acknowledging that the Government did not technically violate Rule 16(a)(1)(G), the Court explained that "it does not follow that the Government has carte blanche in every case to spring a surprise expert witness on an unsuspecting defendant who has long since disclosed his own expert's prospective testimony." Op. 4. And "[i]n an appropriate case, such an ambush might well violate due process." Id.

Unfortunately for Chin, his is not that case. The Court found that the Government's "regrettable" action did "not rise to a due process violation" because the trial court "gave defense counsel what he needed: time to prepare to cross-examine [the Government's expert]." Op. 5. Apparently, this was all defense counsel asked for, and even now, Chin is "unable to specify with any particularity how he was prejudiced by not receiving a longer continuance." Id. "Thanks to the prudence of the district court in granting the continuance," in sum, "Chin was not deprived of due process." Id.

Wednesday, January 24, 2007

Proof of Defendant's Predisposition (to Rebut Entrapment Defense) Is Not Same as Proof that Defendant Had the Requisite Intent / Mens Rea

United States v. Taylor, Docket No. 05-6764-cr (2d Cir. Jan. 23, 2007) (Calabresi, Wesley, Rakoff) (per curiam): The Court affirms Taylor's sentence, rejecting his claim that remand for resentencing was required because the district judge denied him acceptance-of-responsibility credit on the basis of an erroneous legal ruling that Taylor's assertion of an entrapment defense at trial was equivalent to a denial of criminal intent to commit the underlying crime. (NB: Darrell Fields of this Office litigated the case on appeal). The Panel affirms the sentence by skirting the ultimate legal question -- i.e., whether assertion of an entrapment defense precludes the possibility of acceptance credit under U.S.S.G. § 3E1.1, a question on which the Circuits have split, see Op. 7-8 -- in favor of a somewhat dubious finding that the district court actually denied acceptance credit on the basis of other, undeniably proper considerations. Op. 5.

Nonetheless, the Panel clarifies that assertion of an entrapment defense is not at all equivalent to a denial of criminal intent. Specifically, the Government's proof that a defendant was predisposed to commit the crime is not the same as proof that he had the requisite mens rea (though the same evidence may be used to establish both predisposition and mens rea). Op. 7; see id. ("It bears emphasizing that no matter how intertwined intent and predisposition may be, they remain separate concepts."). Rather, "[p]redisposition focuses on the source of the criminal intent: whether the government placed the criminal intent in the defendant." Op. 7 (emphasis added).

Tuesday, January 23, 2007

Panel Revisits Guidelines-Land

United States v. Trupin, Docket No. 05-2934-cr (2d Cir. Jan. 23, 2007) (Wesley, Hall, Jones): The real sentencing action is occurring elsewhere, of course, but someone has to report the news from the provinces. This opinion is bad news indeed, but may become irrelevant by June. Keep your fingers crossed.

Here, on a Government appeal of the 69-year-old tax-cheat defendant's 7-month prison sentence, a Panel of the Circuit vacates the sentence as substantively unreasonable -- i.e., "too darn short for our particular taste." The opinion is fact specific, to be sure, but also portends a broader view of sentencing (at both the district and Circuit levels) quite familiar to most -- the pre-Booker, mandatory Guidelines regime in which sentences outside the Guidelines range were presumptively suspicious and lawful only where exceptional circumstances exist. Also, nowhere seen is the deferential, hands-off appellate posture announced in Crosby and Fleming to establish the post-Booker appellate framework for the Circuit. Instead, this particular Panel essentially assumes the role of a higher sentencing court, overruling the lower court's (irreducibly) subjective judgment about the most "just" and appropriate sentence in favor of its own (and different) subjective judgment about the same. One need not be a cynic to point out that had a different Panel of the same Court heard Trupin's appeal -- for instance the Panel that affirmed a well-below-the-range sentence in Jones, 460 F.3d 191 (2d Cir. 2006) (click here for our discussion), a sentence justified, at bottom, by the district judge's "gut feeling" that the defendant deserved a break -- the result would have been different. Let's hope the Big Court in DC cleans up this mess of its own making.

Here are the relevant details -- though the retrograde nature of the opinion can only be appreciated on a full reading. Trupin is 69 years old. He was convicted at trial of failing to report $6 million in income over a 6-year period, a scam that involved shell companies, phony accounts, etc. At the original pre-Booker sentencing, the judge declined to depart downward on the basis of Trupin's age or family circumstances (he has an ill wife) and imposed a 41-month sentence (the bottom of the applicable range), though stating his personal view that the Guidelines range was too harsh. Following Booker and a remand pursuant to Crosby, the district judge imposed a principal sentence of 7 months' incarceration and 7 months' home confinement (as part of a 3-year term of supervised release).

To justify this sentence, the judge pointed to, inter alia, (1) the fact that, "from everything I can see, Mr. Trupin does everything in his power to take good care of his [ill] wife, even though he doesn't have the means that he once had"; (2) Trupin's advanced age, which means that "service of a lengthy sentence will be a greater hardship on him than in most cases," and further noting that recidivism generally declines with age and opining that "Trupin is not going to go out and commit any more crimes of the sort he's done"; (3) the fact that it's unlikely that the IRS could collect the amounts owed by Trupin anyway, whether he's incarcerated or not; and (4) the court's view that "a few weeks in jail for most of us would be a very, very significant punishment."

The Panel finds fault with each aspect of the district court's reasoning, essentially substituting its own subjective judgment for the lower court's. Op. 7. First, regarding Trupin's age and family circumstances, the Panel points out that the district court denied a downward departure on the same grounds at the original sentencing, and did not reconsider this decision at the post-Booker resentencing. "So what?", one might say in this post-Booker world, but not so the Panel. This fact is significant, Op. 7-8, because it shows that the "court placed far too much weight on Trupin's family circumstances and age without giving adequate weight to the other statutory factors" at the resentencing. Op. 8. Huh.

Regarding Trupin's wife and his efforts to care for her, for instance, the Panel claims that this factor "is neither sufficiently compelling nor present to the degree necessary to support the sentence imposed." Id. This is so because, among other things, Trupin's presence was not "essential to his wife's well-being." Id. Moreover, the fact that Trupin will not be able to care for his wife during his incarceration is "not sufficiently unique" to him, "but rather is true of every married defendant who runs afoul of the law." Op. 9.

The Panel also finds that the court "placed too much weight on Trupin's advanced age," pointing out that he was in good health and that -- regardless of general recidivism statistics -- Trupin began committing crimes in his 50s and then continued doing so into his 60s. Op. 9. Also, "whether and to what extent the IRS would be able to collect the unpaid taxes" is "an irrelevant variable to include in the sentencing calculus." Id.

Additionally, once again substituting its judgment for the lower court's, the Panel believed that the 7-month sentence does not "reflect the seriousness of Trupin's offense." Op. 9. And, finally, the Panel rejects the district court's claim that even a few weeks in prison is a significant sentence, describing this as a "general policy disagreement[]" that a sentencing judge is forbidden to make. Op. 10.

Wednesday, January 10, 2007

Another Sign of SDNY-Centrism?

LoCascio v. United States, Docket No. 05-6761-pr (2d Cir. Jan. 9, 2007) (Cardamone, Straub, Koeltl) (per curiam): There is little of interest in this fact-specific opinion, which principally rejects LoCascio's (the co-defendant of the senior John Gotti, RIP) motion to recuse Judge Glasser from deciding his § 2255 petition (based principally on a claim that his attorney suffered from an actual conflict at the trial because Gotti threatened to kill the attorney if he did anything adverse to Gotti's interests). But we must point out that the Circuit errs, twice, in describing this as an appeal "from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge)." Op. 1 & 2 (emphasis added). Last we checked, Judge Glasser sits in the EDNY, and the underlying trial -- starring the notorious Sammy "the Bull" Gravano as Government Snitch No. 1 -- occurred in Brooklyn.

Monday, January 08, 2007

Denial of Motion to Dismiss for Untimeliness of Death Notice Not Appealable under Collateral Order Doctrine

United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court's denial of the defendant's motion to strike the Government's death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff's effort to characterize the right conferred by § 3593(a) -- requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at "a reasonable time before the trial or before acceptance by the court of a guilty plea" -- as a right "not to stand trial for a capital offense except upon adequate notice." Op. 7. Rather, the Court explained that the protection offered by § 3593(a) is akin to "the protections afforded by any number of pretrial rights that involve notification or disclosure for the purpose of allowing the defendant to prepare his case." Op.9. And because "[n]one of these rights amounts to a right not to stand trial . . . [or] supplies a basis for interlocutory review under the collateral order doctrine," id., the Court dismisses McGriff's appeal of the district court's order for lack of appellate jurisdiction.

This decision creates a split among the Circuits. The Fourth and Eleventh Circuits, apparently, consider denials of motions to strike a death notice for untimeliness as immediately appealable under the collateral order doctrine. See United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208, 1220 (11th Cir. 2006).