Thursday, June 14, 2007

Sentencing Court Must Apply Preponderance Standard to Guidelines Factfindings, Even After Booker

United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).

The headline says it all. Or almost. The court notes that the Guidelines say that the preponderance standard is "appropriate" to Guidelines findings, U.S.S.G. § 6A1.3, comment., and concludes: "[T]he discretion afforded district judges by Booker applies only to their consideration of a Guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge's obligation to perform a Guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that Guidelines calculation is made."

Monday, June 11, 2007

Court Applies Seibert for First Time; Remands for Sentencing Findings

United States v. Bearam, Docket No. 05-2823-cr (2d Cir. June 8, 2007) (Cardamone, Straub, Wallace C.JJ.) Here, the Court applies Missouri v. Seibert, 542 U.S. 600 (2004), for the first time, joining the parade of courts that have limited Seibert to cases involving a deliberate "two-step" interrogations. The Court also vacates a sentence where the district court made inadequate findings as to narcotics quantity and the defendant's role.

Facts: Agents executed a search warrant at a Brooklyn restaurant that Bearam managed. They found crack and powder cocaine, heroin and marijuana. Bearam was seated at a table near a closet where some of the drugs were found. When an agent asked Bearam about some of the drugs, Bearam said it was "bad coke." Bearam was not read his Miranda rights before this questioning; the agent testified that he had asked Bearam whether he had been read his rights and Bearam replied: "I don't know." The agent also asked other agents, who gave the same reply. About an hour later, agents brought Bearam to their headquarters, read him his rights, which he waived, and obtained a confession.

The district court suppressed the first statement, but allowed the post-Miranda statement to be used at trial.

Bearam was convicted after a jury trial. The initial PSR contained estimates of certain drug quantitites, and did not recommend a role adjustment; it identified the guideline range as 188 to 235 months' imprisonment. The government filed an objection, arguing that the drug quantity should be increased and that Bearam should receive a four-level role enhancement. In an addendum to the PSR, the Probation Department agreed with the government, changing its recommendation so that the range was 360 to life.

At sentencing, the district court did not make specific findings as to the drug quantity or Bearam's role, but adopted the new, higher range recommended by Probation. It sentenced Bearam to 360 months' imprisonment, without mentioning 18 U.S.C. § 3553(a), although the court did indicate that this sentence was "sufficient for that crime that was committed."

Ruling: For the Miranda issue, the Court took its first opportunity to untangle the meaning of Seibert; not an easy task, given the confusing line-up of opinions in that case. In the end, the Court took the easy way out, joining the host of other circuits that have limited Seibert to those cases where law enforcement officers deliberately attempted to circumvent Miranda by using a two-step interrogation process. Here, the Court had little trouble finding that there was no deliberate Miranda violation. The unwarned interrogation involved only one question, and did not overlap to a large degree with the full confession. The two interrogations were conducted by different agents, at different locations, and more than one hour elapsed between them. Moreover, here, the second agent did not even know about the first statement at the time he questioned Bearam.

On these facts, the Court held that this case was governed by Oregon v. Elstad, 470 U.S. 298 (1985), and not Seibert. Under Elstad, the only question is whether the second statement was voluntary. Here, the Court concluded that the second statement was preceed by proper Miranda warnings, which were validly waved, and was accordingly voluntary.

Bearam fared a bit better on his sentencing claims, even though he had not objected to his sentence (which is curious, given that he received a sentence nearly twice as long as that recommended by the PSR before the government started meddling with it). The Court first held that it was plain error for the district court to fail to make any factual findings as to drug quantity other than to find that the informant was a credible witness.

As for Bearm's role, the district court likewise failed to make the necessary specific findings, holding only that the role guideline "covers this defendant." In some cases, a role adjustment wil be upheld if the district court adopts the findings of fact contained in the PSR. But here, the judge did not even do that. He said nothing in open court, and adopted the PSR only in the "Statement of Reasons" section of the written Judgment. The Court found this to be plain error because the factual findings in the PSR were inadequate. It simply made reference to the informant's testimony about the number of dealers that Bearam supplied, but did not contain any of the specific information that the role guideline requires.

Comment: There are several interesting things about this case. First is something curious about the Miranda issue. At least as described in the opinion, Bearm was not in custody when he was first questioned - he was sitting at a table in his restaurant. If that is right, then he was not entitled to warnings, and the whole Seibert issue would seem to evaporate. There are also a few curiosities about the sentencing issues. First, as noted above, if the opinion is accurate, Bearam's counsel did not object to the 360-month sentence, or apparently even ask for a lower one. Let's hope that his counsel at rensentencing is a little bit more together. One other item: here, the district court did not mention 3553(a) or any of its factors (except for the guideline range, of course) at all when it sentenced Bearam. The Court of Appeals did not have a problem with this; it relied on a presumption that the judge "faithfully discharged" his statutory duty. It is easy to see how this presumption might apply in a case where the judge mentions the statute but does not specifically indicate his or her thinking about each and every factor in the statute. But it seems kind of a stretch to conclude that a judge has considered the statute where he has not mentioned it at all.

Sunday, June 10, 2007

District Court's Reliance on Community-Specific Considerations Renders Non-Guideline Sentence Unreasonable

United States v. Cavera, Docket No. 05-4591-cr (2d Cir. June 6, 2007) (Cardamone, Calabresi, Pooler, C.JJ.). Here, both the government and the defendant argued that an above-Guideline sentence was unreasonable. The Court agreed, and vacated the sentence.

Facts: The facts of this case are fairly straightforward. The defendant was arrested in the midst of a scheme in which guns were purchased in Florida, then transported to New York for sale. He pled guilty to one count of conspiracy, and faced a Guideline sentencing range of twelve to eighteen months' imprisonment. Judge Sifton, however, imposed a twenty-four months sentence, finding that gun trafficking in urban areas like New York City requires a greater degree of punishment.

Ruling: The Court of Appeals made short work of the district court's reasoning, holding that "community-specific" considerations cannot support a non-Guideline sentence because injecting regional and local factors into a sentencing results in unwarranted geographic sentencing disparities.

Judge Sifton had likened his reasoning to that behind "fast-track" programs, in which illegal reentry defendants in certain areas receive a reduced sentence in exchange for their waiver of certain rights. But the Court of Appeals noted that Congress participated in the establishment and regulation of fast-track programs, ensuring that they do not undermine the statutory goals of sentencing. This is quite different than a federal court, "acting unilaterally," which is not in a position to assess national costs and benefits.

Judge Sifton also indicated that he was acting explicitly under 18 U.S.C. § 3553(a)(2), which directs that the sentence reflect the seriousness of the offense and the need for deterrence. But the facts here, according to the Court, were not of the kind properly considered under this section, because they were not particular to the individual defendant. "[C]ourts may not sentence on the basis of facts that apply to whole classes of crimes."

Comment: The Court's reaffirmance of its view that Booker and § 3553(a) require individualized sentencing and do not permit the district court to inject its own policy preferences into the process is not surprising, and nothing new.

It is Judge Calabresi's concurring opinion that is of some interest, however. He posits that the line between "categorical factors," which cannot serve as the basis for a non-Guideline sentence, and "individual factors," which can, is "logically questionable." Judge Calabresi notes that a court can always take into consideration the "nature of the victim" in setting a sentence, and that the locality where a crime has been committed is highly similar to this. It affects the harm caused by the offense, the culpability of the offender, and the effectiveness of a given deterrent. He goes on to give some fairly compelling examples of this type of reasoning. In the end, he concurs in the result here, if not the reasoning, because he is uncertain whether the district court's reasoning was based on "sufficiently objective" geographical considerations or "intuitions and hunches."

One can surmise that, if Judge Calabresi has his way, this issue might resurface some day, in a way that would not benefit New York City defendants. After all, it is hard to think of a commonly prosecuted federal offense that would appear to be less serious in an urban setting than elsewhere.

No Warrant? No Problem!

United States v. Howard, Docket No. 06-0457-cr (2d Cir. June 5, 2007) (Jacobs, Leval, Sotomayor, C.JJ.). Here, on the government's interlocutory appeal, the Court reverses the district courts order suppressing evidence obtained from the warrantless searches of two automobiles.

Facts: This case actually involves two unrelated, but factually similar, searches. In each case police officers had probable cause to believe that an automobile contained evidence of drug trafficking. Instead of obtaining search warrants, the officers stopped the automobiles on the highway, then used a ruse to lure the occupants away. In the occupants' absence, the cars were searched and evidence was seized before the occupants were returned to the cars.

The district court suppressed the fruits of both searches, holding that, for various reasons, the automobile exception of Coolidge v. New Hampshire, 403 U.S. 443 (1971) did not apply.

Ruling: The Court of Appeals rejected all of the district court's reasons for suppressing the evidence.

The lower court first held that, due to the defendants' absence, the vehicles were not readily mobile, and hence Coolidge did not apply. The Court disagreed, because the automobile exception turns on the inherent mobility of all automobiles, and not on the particular facts of the case. There is no need for a finding of some additional exigency, such as the proximity of the occupants of the car, for the automobile exception to apply. The Court also remarked that the district court ignored entirely the secondary justification for the automobile exception: the reduced expectation of privacy in a car.

The district court's second finding was that the police had ample time to obtain warrants. But, as the Court pointed out, the Supreme Court has held that a warrantless automobile search is reasonable as long as probable cause exists. Since a warrant is never necessary in this situation, the timing is irrelevant.

Finally, the district court held, citing Coolidge, that the failure to notify the vehicles' occupants rendered the searches unreasonable, calling notice a "hallmark" of the automobile exception. The Court of Appeals found "no support" for this position in Coolidge. "The occupants' lack of awareness that a search has been conducted does not necessitate either that a warrant be procured, or that the occupants be notified a search has taken place."

Comment: In the end, it seems like the district court's decision was fairly off the wall. One can surmise that it was a response to the utterly outrageous conduct of the police in these two cases. Unfortunately, outrageous and unreasonable are two different things when it comes to the Fourth Amendment.

Shoplifting Is not "Similar" to Passing a Bad Check

United States v. Ubiera, Docket No. 05-5256-cr (2d Cir. May 15, 2007) (Jacobs, Cardamone, Sotomayor, C.JJ.). Guidelines section 4A1.2(c)(1) excludes convictions for certain petty offenses and those "similar" to them from a defendant's criminal history score. Here, in a case of first impression, the Court rejected the defendant's argument that his two New Jersey prior convictions for shoplifting were "similar" to the listed offense of passing bad checks and should not have generated criminal history points.

The Circuit has long used a multi-factor test in determining similarity under 4A1.2(c). The factors include the relative punishments, the elements of the offenses, the level of culpability, the degree to which the commission of the offense predicts recidivism, and any other factor that is "reasonably" relevant to the question.

Ubiera was convicted of stealing $248 worth of merchandise from a Paramus department store in 1999, for which he was fined $553. His second conviction involved the attempted theft of $903 worth of merchandise; he was fined $550. The Court had little trouble finding that these offenses were not "similar" to passing bad checks. First, Under New Jersey law, while the penalties for shoplifting and passing a bad check are comparable, only shoplifting carries a minimum sentence of community service. Second, shoplifting is a more serious type of offense because it is harder for the victim to detect. And, because it is "trespassory," it poses risks of a confrontation that are less likely to occur when a bad check is passed. In addition, "because shoplifting diminishes trust in the retail marketplace, it has insidious collateral impacts on the public as a whole." Finally, since shoplifting is harder to detect, a person with two such convictions has probably committed more just two shoplifting offenses, while this would not be true for passing bad checks.

This case is very fact-specific, but is a good example of the methodology that the Court uses in such situations. It should be noted that the Court has, more often than not, been receptive to such "similarity" arguments.

Department of Odd Coincidences: Here is the true oddity of this case. One of the attorneys for the appellant is Steven A. Feldman, while the AUSA is Steven D. Feldman. Even the Second Circuit would have to conclude that these names are "similar."

Defendant Forfeits Confrontation Clause Claim by Soliciting the Murder of the Declarant

United States v. Stewart, Docket No. 05-1989-cr (2d Cir. May 8, 2007) (Kearse, Sotomayor, C.JJ., and Koeltl, D.J.). In this extremely fact-bound opinion, the Court concludes that the district court correctly found, by a preponderance of the evidence, that the defendant procured the unavailability of a hearsay declarant.

The "forfeiture-by-wrongdoing" rule is well established, and has been codified in Rule 804(b)(6) since 1997. The defendant here did not contest the rule itself, nor did he did introduce Crawford into the mix (perhaps his trial was pre-Crawford), but rather challenged only the district court's finding that the defendant was responsible for the murder of one of the witnesses against him. The Court was utterly unsympathetic to this claim, mapping out the apparently compelling, albeit circumstantial, evidence that the defendant ordered a confederate to do the deed.

More interesting was the defendant's argument that the forfeiture rule should not be applied because the effort to eliminate the witness was focused at the time on a different trial, not the instant federal trial. The Court rejected this claim as well, adopting a Fourth Circuit holding that "A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding."

15-Level Downward Departure Is ... You Guessed It ... Reversed

Untied States v. Canova, Docket No. 05-6459-cr (2d Cir. May 8, 2007) (Meskill, Newman and Sack, C.JJ.) In this case, for the second time, the Court finds fault with the district court's lenient treatment of John Canova.

Facts: Canova was convicted after a jury trial of making false statements and various similar offenses, all the result of his efforts to obstruct a Medicare investigation into his pacemaker monitoring business. At his first sentencing, which was post-Booker, the district court imposed a Guideline sentence of one year's probation and a fine. It arrived at this sentence principally by concluding that there was no loss (the government alleged a $5 million loss) and granting a six-level downward departure for Canova's "extraordinary record of civil and public service." On the government's appeal, the Court vacated the sentence, holding that the district court's finding of no loss was error. However, the Court remarked that the district court could reconsider the extent of the downward departure in light of the higher range that would result from a proper loss calculation.

When the district court resentenced Canova, it imposed the same sentence, using a different methodology. It calculated the sentence under the Guidelines, this time factoring in a $5 million loss, then granted a fifteen-level downward departure.

Ruling: The Court vacated the sentence once again, finding fault with almost all of the court's grounds for departing.

The Court first held that the lower court abused its discretion in holding that the $5 million loss overstated the seriousness of the offense because the district court considered only the actual harm, and not the intended harm. The Court warned, however, that this departure might not apply in cases like Canova's at all, which was substantially different from the example in the Guideline's commentary. The Court also took issue with the district court's conclusions that Medicare's own conduct or the defendant's restitution were grounds for departure.

Finally, the Court embarked on a lengthy, but ultimately inconclusive, discussion of the substantive reasonableness of the sentence. There is no "particular method for assessing the extent of a departure in order to determine its reasonableness," but "it seems evident that the starting point should be considered." Here, the Court was clearly troubled by a departure that reduced the top of the applicable range by eighty-nine percent, and was even more troubled with the "blunt fact" that the district court treated Canova as though he intended to cause no loss at all, despite the Court's instruction in the first appeal that Canova caused some actual loss and intended a loss of $5 million. The Court indicated that imposing the same sentence on remand in such circumstances would "require a persuasive justification," but made "no ultimate ruling on the reasonableness of the departure," preferring instead to wait until the district court expressly considered the impact of the intended loss on Canova's ultimate fate.

Comment: This all looks pretty grim for Canova, but it should be noted that the Court rejected the government's request that the case be remanded with instructions that the district court impose a sentence of at least twelve months' imprisonment. All the Court did at this stage was urge "careful reconsideration in light of this opinion." If Canova's case illustrates anything, it is the post-Booker truism that what the district court says when imposing sentence is just as important as what it ultimately does. Let's hope, for Canova's sake, that the district court gets it right on the third round.

Court Upholds Warrantless Search of Probationer's Bedroom

United States v. Chirino, Docket No. 06-1207-cr (2d Cir. April 12, 2007) (Kearse, McLaughlin, Straub, C.JJ). In a decision that breaks no new ground, the Court upholds the search of a probationer's bedroom and dresser - where officers found a firearm -that was based on reasonable suspicion that the defendant was in violation of the terms of his probation.

Here, before the search, the officers had information that the defendant, who was on probation for robbery, was in a street gang. Moreover, he had recently been seen in the company of a fourteen-year-old girl who was missing, and who had been held against her will and sexually abused by members of the same gang. When the officers encountered the defendant, he was in bed, nearly naked, with two other underage girls. The Court's conclusion that these facts constituted reasonable suspicion should shock no one.

The Court also, unsurprisingly, rejected a claim that the evidence recovered during the search should be suppressed because the officers did not comply with state-law procedures.

The only noteworthy, in a bad way, of course, aspect of this opinion is Judge McLaughlin's concurrence, which articulates his "continuing belief that something less than reasonable suspicion may support the search of the dwelling of a felon on probation." Indeed, McLaughlin seems to believe that even suspicionless searches of probationers are permissible. Let's hope that (1) he is wrong, and (2) the question does not get to the Supreme Court anytime soon.

Improper Lay Opinion Testimony Voids Fraud Conviction

United States v. Kaplan, Docket No. 05-5531-cr (2d Cir. April 11, 2007)(Feinberg, Leval, Cabranes, C.JJ). Here, improper testimony by a co-conspirator about the defendant's knowledge of the fraud resulted in the reversal of some, but not all, counts of conviction.

Facts: This case involved a complex insurance fraud scheme, with staged automobile accidents and corrupt doctors, all aided by a corrupt lawyer named Galkovich, who actually filed the claims. In 2001, Galkovich was arrested and risked losing his law license, so other conspirators arranged for his firm to be sold to defendant Kaplan. At trial, Galkovich was permitted to testify, over objection, that his initial conversations with Kaplan led him to conclude that Kaplan knew that the insurance claims were fraudulent (e.g., "I think he knew exactly what he was getting into.").

The district court also permitted Galkovich to testify that both he and others knew about the fraud. The district court characterized this as circumstantial evidence of Kaplan's own knowledge.

Ruling: As to the first issue, the Court analyzed Galkovich's opinions under Rule 701(a), which requires that a lay person's opinion be "rationally based on the perception of the witness." Galkovich testified that he based his opinion on his "experience," "what people said" about Kaplan, Kaplan's own statements and "everything" he had been involved in. The Court held that this "extremely vague" foundation did not satisfy the Rule's requirement of a rational basis.

On the second claim, the Court, after grappling with seemingly contradictory precedents, harmonized them into a single rule: "Evidence regarding the knowledge of individuals other than the defendant should be admitted only if there is some other evidence in the record ... from which to conclude that the defendant had the same knowledge." Here, the Court concluded that the evidence was was irrelevant, because there was no evidence that the same knowledge was communicated to Kaplan, or that Kaplan had been exposed to the same sources from which the others derived their knowledge of the fraud. It also held that the minimal probative value of the testimony was far outweighed by its potential for unfair prejudice under Rule 403 because there was a high risk that the jury would misuse the testimony to infer that Kaplan had the same knowledge that the others had.

The Court concluded that these errors were not harmless as to all of the counts relating to the fraud, and remanded for a new trial on those counts. Unfortunately for Kaplan, he was also convicted of two counts related to hindering the investigation (witness tampering and false statements). As to these counts, the Court agreed that some of the district court's jury instructions were error, but found the errors to be harmless.

Comment: This case stands out for a couple of reasons. It is not all that uncommon for the Court to find that evidentiary errors, particularly errors as blatant as those present here, are error. But it is quite a bit rarer for the Court to conclude that the error was not harmless. This case serves as a good example of the kind of harm that the Court will be looking for in future cases. Also, the Court rarely reverses on Rule 403 grounds, so this case might be useful for that reason, as well.

Hiatus Is Over

We're back from "spring break," and are catching up on Second Circuit decisions since our last post.