Wednesday, July 25, 2007

Anders Brief and Motion to Withdraw Must Be Explained Verbally to Illiterate Defendant

United States v. Santiago, No. 06-5136-cr (2d Cir. July 18, 2007) (Cabranes, Raggi, CJJ, Berman, DJ)

In this case, the defendant received the bottom of an agreed-upon sentencing range - 135 months' imprisonment - and waived his right to appeal. He nevertheless filed a notice of appeal and counsel filed an Anders brief and motion to withdraw. Counsel also forwarded to the court of appeals a copy of the letter she sent to the client notifying him of her actions. The court, however, concluded that this might not be enough. It noted that the presentence report indicated that the defendant was illiterate and thus that there was a possibility that he might not have understood the documents he received. "At a minimum, when counsel knows or has reason to believe that the client may be illerate, she must make some reasonable effort to contact the defendant in person to explain the contents of the Anders notice documents or arrange to have someone read them to him." The court accordingly denied counsel's motion to withdraw, subject to a renewed motion that complies with this procedure.

Admission of Plea Allocution in Violation of Crawford is Harmless

United States v. Lombardozzi, No. 04-0380-cr (2d Cir. July 11, 2007) (Kearse, Sack, Hall, CJJ)

No new ground here. Defendant was charged with various extortion offenses in connection with loans that he, through confederates, extended to a restaurant owner. At trial, over objection, the government entered into evidence a co-defendant’s plea allocution, in which he admitted that he “conspired with others” to use threats of violence to collect a loan.

The court of appeals agreed that this violated Crawford, but found that the error was harmless beyond a reasonable doubt. The government placed little emphasis on the allocution in its summation, and the admissible evidence establishing the existence of the conspiracy - the victim’s testimony and recorded conversations - was “overwhelming.”


United States v. Sabhnani, Nos. 07-2567-cr, 07-2615-cr (2d Cir. July 6, 2007 ) (Winter, Cabranes, Raggi, CJJ).

In a decision so fact-bound as to be unlikely to serve as precedent for any other case, the court has ordered the defendants’ release on bail despite the horrific nature of the crimes and the strength of the evidence.

In May of 2007, the Sabhnanis, a married couple with homes on Long Island and in Manhattan, were charged with forced labor and harboring illegal aliens, based on allegations that they enslaved and beat two Indonesian woman who were their domestic servants. After numerous bail hearings in the district court, they were ordered detained as flight risks. The couple is extremely wealthy, and has extensive business, financial and personal ties to foreign countries, including some with which the United States has no extradition treaty.

They appealed the detention order, and the court of appeals agreed that there were bail conditions that would prevent their flight. It should be noted, however, that the court did so only after the government submitted proposed release conditions to the court and the defendants agreed to accept those conditions. “The government’s ability to identify such conditions and the defendants’ willingness to accede to them preclude a conclusion in this case that no conditions of release would reasonably assure the defendants’ presence at trial.”

Tuesday, July 17, 2007

District Court’s Application of November 1, 2002, Guidelines Manual Violated Ex Post Facto Clause

United States v. Kilkenny, No. 05-6847-cr (Cardamone, Walker, Straub, CJJ) (2d Cir. July 5, 2007). Here, the district court used the November 1, 2002, version of the Guidelines to sentence the defendant, rejecting his argument that the November 1, 2000, version should be applied instead. the court of appeals rejected district court’s reasons for using the later, and more onerous Guidelines, and remanded the case for resentencing under the 2000 manual.


In September of 2000, the defendant received, a large loan from M&T Bank. However, he had made several false representations about his finances in the loan application, and ultimately defaulted. On May 8, 2002, the bank foreclosed on the loan. The defendant pled guilty to one count of bank fraud - the count alleged that the fraud spanned from “in or about September 2000 through on or about May 8, 2002.”

The defendant also cheated 22 individuals in a Panamanian bond scheme that took place between February 2000 and June 2001 (Count Two) and structured cash deposits on July 24, 2001 (Count Three).

The defendant pled guilty to all three charges in July of 2003, and the court sentenced him, over objection, using the November 1, 2002, Guidelines manual, under which the Guideline range was 188 to 235 months’ imprisonment. The range would have been the same using the November 1, 2001, manual but, with the November 1, 2000, manual, the range would have been 97 to 121 months. The district court ultimately sentenced the defendant to 216 months’ imprisonment, rejecting the argument that the 2000 manual should have been used. It held that (1) “May 8, 2002, is specifically charged in Count One”; (2) “the entire range of conduct” extended “actually even into 2003,” referring specifically to the defendant’s failure to repay the loan; and, (2) the defendant defrauded additional victims “not specifically charged but detailed in the presentence report” after November 1, 2002.

The Appellate Court’s Decision

The court of appeals rejected all of the district court’s reasons for using the later version of the Guidelines. It first held that it was error for the district court to rely on the May 8, 2002, date specified in the bank fraud count as the last date of the bank fraud offense, since all of the defendant’s conduct with respect to the M&T Bank loan took place in 2000. Where a date in the charging instrument “clearly exceeds the offensive conduct” it is “clearly erroneous for a sentencing court to rely on it.”

Next, the Court held that the failure to repay the bank loan in 2002 should not change the result. Ordinarily, the failure to repay a fraudulently obtained bank loan does not constitute bank fraud. Finally, the court held that the district court erred in relying on uncharged conduct. “[U]ncharged conduct occurring after the conduct of conviction cannot be considered when determining which version of the Guidelines to apply.”

“Copyright-Like” Statute that Exceeded Congress’ Powers Under the Copyright Clause Is Valid Under the Commerce Clause

United States v. Martignon, No. 04-5649-cr (2d Cir. June 13, 2007) (Pooler, Sack, CJJ., and Garaufis, DJ).

In 2004, Jean Martignon was charged under 18 U.S.C. § 2319A, which makes it a crime to manufacture, publish or distribute “bootleg” recordings of musical performances; that is, those made without the consent of the performers. Martignon moved to dismissed the indictment, arguing that the statute violated the Copyright Clause, because live performances were unfixed, and hence not “writings,” and because the statute protected them in perpetuity, rather than for a limited time. The district court agreed, and granted the motion. Martignon also made a First Amendment argument, which the court did not get to.

The Appellate Court’s Decision

On the government’s appeal, the Court of Appeals reversed. Since the government conceded that Section 2319A could not have been enacted under the Copyright Clause, the court had to decide whether Congress had the authority to enact the statute under the Commerce Clause. This question turns on whether the Copyright Clause is an exclusive grant power that limits Congress’ ability to regulate creative works under any other grant of authority.

The Supreme Court has sometimes held that Congress can enact legislation under one constitutional provision that it could not have enacted under another, but has also held that, in some circumstances, it cannot. After a detailed analysis of those precedents, the court here concluded that those cases would “allow the regulation of matters that could not be regulated under the Copyright Clause in a manner arguably inconsistent with that clause unless the statute at issue is a copyright law.”

It went int to conclude that Section 2319A is not a “copyright law.” All copyright laws share a common feature - they create, bestow, or allocate property rights to or among authors or inventors. Section 2319A does not - it is a criminal statute that “creates a power in the government to protect the interest of performers from commercial predations.”

Thus, since Section 2319A is not a copyright law, and is a valid exercise of Congress’ Commerce Clause power - it regulates activity that is commercial or economic - it is constitutionally valid.

What Next?

The case now goes back to the district court to consider the First Amendment argument.