Saturday, September 29, 2007

Follow The Bouncing Anders

United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam)

Once – or rather twice - again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal standard for procedural reasonableness and desribe[d] the sentencing process” but did not analyze either the procedural or substantive reasonableness of the sentence itself. The other made conclusory statements about the reasonableness of the sentence but did not analyze the district court’s sentencing determinations or the sentence itself.

After reviewing the purposes of Anders briefs, the court held that such briefs must include a discussion of both the substantive and procedural reasonableness of the sentence, reminding the bar that there is no presumption of reasonableness for Guidelines sentences in this Circuit.

What is the lesson here? It will be a whole heck of a lot easier if appellate counsel avoids filing an Anders brief. Try not to do so unless the client got the sentence he asked for, or the mandatory minimum, or the appeal was waived by a plea agreement.

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Double Trouble, But Not Double Jeopardy

United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ)

This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of Supreme Court cases, the Circuit concluded that the answer to this question is “possibly, but not here.”

Dioniso pled guilty in 2001 under plea agreement in which the government agreed to dismiss certain racketeering charges with prejudice, and ultimately did so. In 2004, despite its promise, the government indicted him on suspiciously similar charges, and he moved to dismiss the new indictment as a violation of the Double Jeopardy Clause. The district court held that, per se, jeopardy never attaches to a pretrial dismissal.

The Circuit disagreed with this ruling, although not the ultimate outcome, taking a much more nuanced approach. To resolve this complex question the court “look[ed] beyond formalistic labels” and “scrutinize[d] the substantive resolution underlying that disposition.” Neither an actual acquittal nor conviction is a necessary to trigger double jeopardy; the crucial question is “whether the defendant faced the risk of a determination of guilt” and thus whether the disposition of the indictment “entailed findings of facts on the merits such that the defendant was placed in genuine jeopardy by the making of such findings.” Thus, there must be an adjudication of “some facts that go to the merits” of the charge before it can be said that the defendant was placed in “actual jeopardy.” (emphasis in original).

Here, it was easy for the court to conclude that no jeopardy had attached to the dismissed charges, since the dismissal arose exclusively from an agreement between the parties, and there was no record evidence that the dismissal entailed a resolution of any factual elements that went to the merits, nor of a process that put the defendant at risk of conviction.

The door is not completely shut for Dionisio. He would seem to have a strong claim that the government breached its plea agreement by reviving, in barely disguised form, counts that it had promised to dismiss. But that will have to wait. Double jeopardy claims can be heard in an interlocutory appeal, which this was. A claim that the government breached a plea agreement cannot.

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Friday, September 28, 2007

Crawford's Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his actions were driven by credulity and inexperience, rather than greed. The court also faulted the limiting instructions themselves, noting that they might have left jurors open to assuming that the allocutions could be considered on the issue of Becker’s intent.

Finally, the court concluded that the other evidence of Becker’s intent and membership in the conspiracy was “far from overwhelming.” Significantly, the court made clear that its finding that evidence as to these issues was legally sufficient did render an error affecting them harmless. This is an important distinction to which the Circuit has not always adhered.

Becker’s case is all the more remarkable in that arose in the context of a 2255 petition, and not a direct appeal, which means that he successfully overcame several procedural hurdles: the law of the case doctrine, since the court had, on his pre-Crawford direct appeal, rejected the Confrontation Clause claim, and a Teague problem. Fortunately for Becker, his case was not yet final (by a mere ten days) when Crawford was decided.

One note: Becker has already served his entire prison sentence and most of his term of supervised release. Let’s hope that the government does the right thing and drops the case entirely.

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Absence Makes the Court Affirmer

United States v. Kaid, Docket No. 05-4480-cr (2d Cir. September 12, 2007) (Calabresi, Raggi, Hall, CJJ) (per curiam)

Two years after his client was convicted, defense counsel filed an affirmation stating that he was absent for twenty minutes during the testimonial portion of the trial. At issue was whether this constituted ineffectiveness. The district court had decided, rather than try to reconstruct the events years later at a hearing, that it would assume the facts to be true. It held that the absence did not constitute a Sixth Amendment violation. The Circuit, expressing some skepticism about whether the absence had been adequately established at all, nevertheless agreed. The court rejected the invitation to treat the absence as per se ineffectiveness, a doctrine that is reserved for extreme situations, such as where the attorney is not an attorney at all or has been implicated in the defendant’s crimes.

Instead, the court undertook a traditional Strickland analysis, concluding that counsel’s absence, while objectively unreasonable, did not prejudice the defendant.

Tuesday, September 25, 2007


United States v. Acosta, Docket No. 05-1283-cr (2d Cir. September 5, 2007) (Pooler, Parker, Wesley, CJJ)

Last term, the United States Supreme Court held that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock-and-announce” rule. Hudson v. Michigan, 126 S.Ct. 2169 (2006). Here, the Circuit, unsurprisingly, holds that the same is true for violations of the knock and announce statute, 18 U.S.C. § 3109.

It is almost too sad to blog, but here, in brief, is the court’s reasoning. Both § 3109 and the Fourth Amendment’s knock-and-announce principle “share the same common law roots, overlap in scope, and protect the same interests, which necessitates similar results in terms of the exclusionary rule’s application.” Moreover, a civil remedy is available; a citizen can file a Bivens action. This, according to the Circuit, is an adequate deterrent to federal agents who might contemplate violating the knock-and-announce statute.

However pathetic this decision is, we really have to blame the Bush Supreme Court for it, and not the Circuit. The Bush court simply loves making categorical rules that cut off entire branches of Fourth Amendment relief, and Hudson is not the only example. Samson v. California, 126 S.Ct. 2193 (2006), ended all Fourth Amendment protection for parolees. Expect more like this in the future, folks, for that is surely the trend.

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United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ)

In case you were wondering, Rule 33 applies only to "newly discovered" evidence, and not "newly available" evidence.

Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the Bronx. Owen was pulled over while driving the truck, and explained, not very convincingly, that he was a mover, in the process of moving personal items to Florida for a client. When DEA agents found the marijuana in the truck, they arrested him.

Owen and the two others, Samuels and Baroody, went to trial. No defendant testified, but each, through counsel, pointed his finger at the others. All were convicted, and Judge Patterson sentenced Owen to five years’ imprisonment.

At Samuels’ sentencing, before sentence was imposed, Samuels exculpated Owen. He said that he had “hired him for a job” but that Owen “didn’t know anything about drugs.” Samuels also said that he told the government that Owen was innocent during a proffer. Owen then, pro se, moved for a new trial under Fed.R.Crim.P. 33, characterizing Samuels’ statements as newly discovered evidence, and Judge Patterson granted the motion.

The Court's Ruling: On the government’s appeal, the Circuit reversed. It characterized the evidence as “newly available,” and not “newly discovered,” rejecting Owen’s claim that he was unaware of Samuels’ ability to exculpate him until Samuels did so. If in fact Samuels never told Owen that there was marijuana in the boxes he was transporting, Owen “would have known prior to trial” that Samuels could testify to that fact. The court then declined to extend Rule 33 to newly available evidence, rejecting the First Circuit’s minority holding on this point.

Comment: Despite the bad outcome for Owen, this case nevertheless has a few helpful nuggets. First, it seems to endorse severance as the proper relief where “a codefendant’s assertion of privilege deprives the defendant of exculpatory testimony” at trial. Moreover, ths case does not completely shut the door to this type of Rule 33 motion, noting that there “may be” cases where a codefendant’s post trial testimony “does indeed constitute newly discovered evidence.”

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Sunday, September 23, 2007

Tear Up That Anders Brief - The Court Has Found An Issue!

United States v. Hall, No. 05-6919-cr (2d Cir. August 30, 2007) (Calabresi, Raggi, Hall [no apparent relation], CJJ) (per curiam)

This case adds yet another wrinkle to the Circuit’s ever-evolving Anders jurisprudence. Here, the defendant appealed a below-Guidelines sentence and counsel filed a detailed Anders brief. In that brief, counsel correctly pointed out that the district court had omitted the written statement of reasons required by 18 U.S.C. § 3553(c)(2) but argued that any claim of error on this ground would be harmless, since the court gave adequate oral reasons.

Instead of granting Anders relief, however, the Court of Appeals remanded the case to the district court with instructions to include a written statement of reasons. The Court noted that the statement of reasons might affect way that the Bureau of Prisons treats the defendant, and thus directed counsel to remain on the case until the statement is filed. This will “ensure that the defendant has the benefit of counsel to review the written statement of reasons ... and ensure that no meritorious issues that arrive in connection with that written entry are overlooked.”

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Attorney's Quick Change Of Heart Saves The Day

United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).

Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.

At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact that the district court took no action at all with respect to the jurors, and the overall lack of evidence “that further deliberations would have risked producing a verdict that the jurors would not have otherwise supported.”

Of perhaps more interest in this appeal is the court’s discussion of one of the two defendants, Borghese, who initially joined in his co-defendants’ motion for a mistrial, then quickly changed his mind and announced that he opposed it. The Circuit held that Borghese did not consent to the mistrial, and thus could not be retried. The change of position was immediate - it occurred “within seconds” of the declaration of the mistrial. In addition, the objection was made before the jury was discharged, and thus the court could have changed its decision.

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The Birds Were Exotic; The Appeal Was Not

United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam)

The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any exotic bird of a species covered by the Convention, and violators face civil or criminal penalties.

Thomas Cullen used straw purchasers to import Black Sparrowhawks, an African raptor, into the United States. He was trying to make it look as if the importation were valid under a provision permitting persons who have lived outside the United States for more than one year to import a personally owned pet, even if it is a member of one of the listed species. Cullen was convicted both of importing the birds and of making false statements to the Wildlife Service.

Cullen’s claims on appeal were borderline frivolous. He claimed that the Convention did not apply only to captive-bred birds, even though nothing in the statute supported that argument. He also claimed that the statutory phrase “personally owned pet” was unconstitutionally vague. The Circuit correctly held that both “personal” and “pet” are words that are comprehensible to an ordinary person.

Government Has No Evidence; Court Deems It Sufficient

United States v. Parkes, No. 05-1486-cr (2d Cir. August 15, 2007) (Jacobs, McLaughlin, Calabresi, CJJ).

In a sterling example of the alchemy of result-oriented jurisprudence, here the court finds sufficient evidence of an effect on interstate commerce, even though there was none.

Otis Parkes and two others planned and carried out 2003 robbery attempt in the apartment of a drug dealer. Their target was marijuana and marijuana proceeds that the dealer kept hidden in his closet. During the robbery, one of the co-conspirators shot and killed the drug dealer. Parkes went to trial on a Hobbs Act robbery conspiracy charge under 18 U.S.C. § 1951, along with other, related charges, including murder in furtherance of a crime of violence, under 18 U.S.C. § 924(j). He received a life sentence.

The government had taken the position (a typical SDNY overreach) that it did not have to prove any effect on interstate commerce and that, as long as it proved that the target of the robbery was drugs or proceeds this element was satisfied. At the charge conference, Judge Kaplan disagreed, but permitted the government to reopen and call an “expert,” who testified that marijuana is “almost exclusively” trucked into the United States from Mexico, and that “very little” is grown in New York. He conceded that he did not know the origin of the marijuana found in this case and that marijuana can be, and is, grown in New York State.

On appeal, the Circuit reached two significant, albeit contradictory conclusions. It first held that, in a Hobbs Act prosecution, the government must, indeed, prove an effect on interstate commerce, rejecting the government’s (renewed) argument that a robbery involving drugs or proceeds affects commerce as a matter of law. This is significant because, to get there, it had to conduct what is calls a “mini-en banc” to undo United States v. Fabian, 312 F.3d 550 (2d Cir. 2002). There, the court had held that, for the loan sharking portions of the Hobbs Act, drug proceeds affect commerce as a matter of law. Fabian had imported the Congressional findings under the Controlled Substances Act, 21 U.S.C. 801, et. seq., that all drug trafficking affected commerce to the Hobbs Act. Here, the Circuit did an about-face, relying, of all things, on Booker, which of course has nothing to do with commerce, to conclude that Fabian is “no longer good law.”

So far, so good for Mr. Parkes. Unfortunately, the court then concluded that the non-evidence introduced by the government was sufficient, because “a reasonable juror, hearing [it] could have found that the attempted robbery of ... marijuana or proceeds would have affected interstate commerce in any way or degree.”

The court rejected all of Parkes’ other claims, as well, but remanded the case for resentencing under Booker.

Comment: This is a ridiculous case. On the one hand, it requires the government to prove an effect on interstate commerce in Hobbs Act cases involving drugs or proceeds. But on the other hand, it completely excuses the government’s failure to do so.

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Notice No-No's

United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ).

Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, in all, faced a three to nine month revocation range. However, Judge McMahon sentenced him to one year in prison, without giving notice of her intention to upwardly depart.

On appeal, he argued that he should have been entitled to notice of the court’s intention to impose a sentence higher than recommended by the Chapter 7 policy statements. The Circuit affirmed.

The court began by noting that, ten years ago, it had held that there was no right to such notice, because revocation sentences are governed by Chapter 7 policy statements, and these non-binding policy statements are not guidelines.

The court concluded that the same holds true post-Booker, even though a defendant remains entitled to notice of a court’s intention to impose an above-guideline sentence now that the guidelines themselves are advisory. The court saw little need to harmonize the two types of cases, noting that, even post-Booker, it has continued to distinguish between “policy statements” and “sentencing guidelines” and, in this situation the “distinction continues to be warranted.”

Comment: What an odd little case. It is now the rule in this Circuit that one kind of advisory sentencing regime, the initial sentence, has an important procedural protection that another kind of advisory regime, the revocation sentence, lacks.

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The Thirty Years' War

United States v. Cuevas, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ

In this case, the defendant Jose Cuevas, who was extradited to the United States from the Dominican Republic, argued, with out success, that a 30-year sentencing cap contained in the extradition decree should apply to him.

Cuevas was charged, in the late 1990's, with drug trafficking and money laundering offenses. He was home in the Dominican Republic at the time and, not unwisely, decided to remain there.

Undeterred, the government initiated extradition proceedings. After much diplomatic back-and-forth, the D.R. handed Cuevas over to American authorities on July 6,2002. Two weeks later, the U.S. received a copy of the extradition decree itself, signed by the president of the D.R. which invoked a treaty requirement that a “no penalty greater than ... thirty years shall be imposed.” Unimpressed with this, Judge Rakoff ultimately sentenced Cuevas to 390 months, or 32 1 /2 years’, imprisonment.

Cuevas appealed, inter alia, on the ground that the sentence was illegally long in light of the extradition decree. In an unpublished order, the Circuit remanded for a hearing on whether the U.S. and the D.R. “reached an agreement as to the sentence that could be imposed.”

On remand, it emerged that, usually, when a foreign country cares about the sentence to be imposed on an extraditee, it requests formal assurances prior to surrendering him. Here, the D.R. made no such request prior to surrendering Cuevas. The district court thus found that the U.S. never agreed to a limitation of the sentence. The extradition decree was irrelevant because the U.S. could not be bound by a condition it learned of only after taking custody. The court also noted that the D.R. know of the over-long sentence, buthad not protested it.

The Circuit affirmed. Nothing in the extradition treaty itself seemed to help Cuevas, and the court was singularly unimpressed with the extradition decree; the “Dominican Republic’s unilateral belief” that Cuevas would not be sentenced to more than 30 years’ imprisonment “is insufficient to bind the United States.”

Cuevas also relied on the U.N. Convention Against Illicit Traffic in Narcotic Drugs, a treaty that both the U.S. and the D.R. have signed. He argued that under this Convention, the U.S. had agreed that Dominican law would control the conditions of extraditions. The court rejected this interpretation of the treaty, finding that in this case the domestic law of the D.R. was not binding here.

The Circuit did, however, remand the case for resentencing because this was a pre-Booker sentencing and it could not say “with certainty” that the district court would not have imposed a non-Guideline sentence “had it perceived this to be a possibility.”

Post-Script: As of this writing, Judge Rakoff has not yet resentenced Cuevas. Let’s hope he sees the light this time. This is a particularly unfair case - the D.R. clearly expected that Cuevas would not get more than 30 years’ imprisonment, and the decree to that effect was dated four days before he was turned over to the U.S., even if it was not received until later. The equities, if not the law, clearly side with Cuevas. Given the relatively minor differences involved, it would not really be the end of the world if the judge were to give him 30 years - the bottom the Guideline range - instead of 32 1 /2.

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Don't Go Western, Young Man

United States v. Cole, No. 06-0226-cr (2d Cir. August 9, 2007) (Sack, Parker, Hall, C.JJ)

This case demonstrates the first principle of sentencing thermodynamics: the farther a district court gets from Foley Square - here, the Western District - the more bizarre its rulings are likely to become.

Facts: Patrick Cole was the patron of a garden-variety Ponzi scheme that netted him nearly $1.5 million over four years. He pled guilty to mail fraud under a plea agreement that contained various stipulations about the Sentencing Guidelines, but that left him free to dispute the applicability of the “sophisticated means” enhancement. Cole gave the probation officer who was preparing the presentence report a copy of the plea agreement, and the officer sided with the government on this issue.

Cole also filed timely objections to the report with the district judge but, at sentencing, the judge would not even entertain those objections, citing “local procedural guidelines” that require, in essence, exhaustion of administrative remedies - a conference with the probation officer - before sentencing. Finding that no such meeting had taken place, Judge Arcara refused to hear Cole’s sentencing arguments.

Perhaps equally bizarrely, in the middle of the sentencing, the judge decided that Cole, who had not accounted for most of the stolen money, must have “a stash somewhere or an offshore account.” It determined that this was the basis for an upward departure, then sentenced Cole to 90 months’ imprisonment, 12 months longer than the top of the rage that he was not permitted to contest.

The Appellate Court’s Decision:

The easy part of this case was the upward departure. Cole had less than two hours notice of the district court’s intention to upwardly depart. Since this was woefully insufficient, the court remanded the case for resentencing. It dodged, at least for now, any substantive comment on the upward departure itself, even though it would seem to be pretty clear that the departure was unwarranted.

The real challenge for the Circuit was the source and meaning of the “local procedural guideline” that Judge Arcara invoked to bar Cole’s sentencing arguments. It turns out that the source was Judge Arcara’s individual rules (Judge Skretny uses them too). But what this rule actually is took some unraveling. Everyone agreed that it was not a “local rule.” The Circuit concluded that, if it is not a local rule, it must be something, so it decided that it was a “standing order,” which is regulated by Fed.R.Crim.Proc 57(b).

Under this Rule, standing orders must be “consistent with federal law.” Judge Arcara’s standing order is clearly inconsistent with Fed.R.Crim.Proc. 32(f), under which the parties may meet with the probation officer to discuss objections to the presentence report, and Rule 32(i) under which the sentencing court “must allow” to comment on sentencing matters.

The Circuit concluded that, on remand, the court “must permit Cole to argue his objection [to the presentence report] and to argue any other objections as may be appropriate.

Post-Script. While the Court “note[d], with concern” Judge Arcara’s conduct, it did not reassign the case to a different judge on remand.