Thursday, November 29, 2007

Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)

The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about the state case. The court knew that Juwa had not yet pled guilty in the state case but, taking that case into account, sentenced him to 90 months’ imprisonment. The court described this as an upward departure and also imposed it, in the alternative, as a non-guideline sentence.

At times during the sentencing the district judge seemed to recognize that Juwa had agreed to plead to only one count in the state, but the judge also made statements suggesting a finding that Juwa had acted on multiple occasions. In addition, the written judgment noted that Juwa would be pleading guilty in the state to “molesting his nephew for 3 years.”

The circuit reversed. It concluded, at least on this record, that it would have been “improper” for the district court to base the federal sentence on charged conduct alone, a violation of the due process right to be sentenced based on accurate information. Here, apart from the indictment in the state case, there was nothing to establish that Juwa committed any acts other than the one that he had agreed to plead to. The indictment alone could not establish any other facts, even by a preponderance of the evidence. “[A]t sentencing, an indictment or charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed. Some additional information, whether testimonial or documentary, is needed to provide evidentiary support.”

Here, because there was “uncertainty both from the sentencing transcript and the written order” about whether, and to what extent, the sentencing enhancement was based on the court’s assumption that Juwa had engaged in multiple instances of abuse, it remanded the case for clarification.

In Baker, a summary order, the court, remarkably, vacated a within-guideline sentence as unreasonable, an apparent first in this district.

Baker faced a 108-month guideline minimum for transporting child pornography, and that was the sentence he got. He had argued strenuously for a below-guideline sentence, but the district court made it clear “from the outset that it would only consider a sentence within” the range. It did not say why a 9-year guideline sentence was appropriate, nor did it say why a the 5-year mandatory minimum sentence was not. Moreover, the court did not specifically respond to any of Baker’s arguments for a lower sentence, arguments that the circuit found so compelling that the district court, “at the very least,” should have explained why it was rejecting as them as the basis for a non-guideline sentence. Most significantly, the also court concluded that the district court’s statement that it had considered all of the 3553(a) factors was not enough, because it was obvious that the court really had not done so.

The mystery of Baker is whether the court viewed the sentence as substantively unreasonable, or procedurally unreasonable, or both. The disposition of the case - remanding to the district court to provide reasons for the sentence - suggests that this was a procedural unreasonableness case. But the cases the court cites as the basis for the remand, Sindima, and Rattoballi, are substantive unreasonableness cases. Curious, aint’ it?

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Wednesday, November 21, 2007

Joint Pain

United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ)

In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless. The decision also has an interesting discussion of some unusual wire fraud theories.

Defendants Shellef and Rubenstein were tried together on tax and wire fraud charges. At the same trial, Shellef alone was tried on tax evasion charges relating to some of his personal and business dealings. Both were convicted of all counts.

The tax and mail fraud charges arose from the defendants’ efforts to purchase and resell CFC-113, a highly regulated, ozone-depleting industrial solvent upon which, Congress, in an effort to phase out its use, imposed an excise tax. However, the tax does not apply to CFC-113 reclaimed as part of a recycling process, or CFC-113 that is sold or manufactured for export.

The defendants were charged with attempting to avoid this excise tax, beginning in 1997 or 1998, through a series of complex business transactions. In very brief, they falsified documents so that it would appear that CFC-113 that they had purchased and resold was either reclaimed or was being shipped for export. Similar misstatements duped their suppliers into not charging them the excise tax.

Shellef alone was also charged with tax evasion - he understated his income and assets - relating to his personal and business returns for the 1996 tax year. At trial, Shellef moved to sever the 1996 tax counts from the others, and Rubenstein joined in the motion, all without success.

The circuit reversed. Tax counts can be joined with other crimes from which the tax offenses arose, as when a defendant is prosecuted for fraud and for not paying taxes on the proceeds. Here, however, Shellef’s 1996 tax counts were unrelated to the other charges. The government’s only claimed connection was that all related in some way to the sale of CFC-113 (a claim unsupported by the record for the 1996 conduct) and that all arose from the same businesses. But the circuit held that this was insufficient to support joinder in the prosecution of Shellef under Rule 8(a).

The court further held that the government failed to show that this misjoinder was harmless. The 1996 conduct would have been inadmissible at a trial on the other counts under Rule 404(b), because the earlier acts would have led the jury to “reason that if Shellef was willing to lie to the IRS in 1996 he would be willing subsequently to lie to others” or to interpret the 1996 conduct as an “indication of Shellef’s general mendacity.” The court also held that, for similar reasons, the 1996 evidence probably prejudiced the jury’s assessment of the other counts. The absence of any limiting instructions on these issues compounded this prejudice.

After a much less detailed analysis, the court also held that Shellef’s 1996 tax counts were misjoined against Rubenstein. The court simply noted that this was true for “many of the same reasons” that they were misjoined against Shellef, but did not give any specifics. Interestingly, and with no real analysis at all, the court held that Shellef’s 1996 misdeeds posed an “arguably greater” potential for prejudice against Rubenstein, even though that conduct had nothing at all to do with him.

This opinion is also notable for its discussion of the theories of wire fraud advanced in the indictment, the “no-sale” theory and the “tax liability” theory. The no-sale theory posited that Shellef’s misrepresentations to his supplier constituted fraud because the supplier would not have made the sale if it knew of his true plans to improperly sell the chemical domestically. However, the court held that this is not enough. A scheme that does no more than cause a victim to enter into a transaction it would otherwise avoid is not fraud. Fraud is present only if the scheme depends “for [its] completion on a misrepresentation of an essential element of the bargain.” Here, because the indictment alleged only that Shellef’s misrepresentation induced his supplier to enter into the transaction, but did not charge that the misrepresentation had “relevance to the object of the contract,” the indictment was legally insufficient on a “no sale” theory.

The indictment was sufficient, however, on the alternative “tax liability” theory. This theory was that Shellef induced his supplier to continue to sell the chemical without paying the excise tax or including it in the sales price. This was sufficient because it deprived the supplier of money it should have been entitled to - the tax - and it is irrelevant that that money was to be passed on to the IRS. It was sufficient that the supplier “had a right to” the money and that Shellef’s scheme was intended to deprive the supplier of it.

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Control Freak

United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)

This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory. The defendant Carlo and others defrauded real estate developers by making misrepresentations about Carlo’s efforts to obtain funding for the developers’ projects. In response to the developers’ requests, Carlo falsely assured them that loans were imminent, when in fact they were not. Here, the government did not allege that Carlo defrauded the developers out of any specific money or property, but rather out of their right to control their own assets, which the court held was a permissible theory of fraud. Carlo’s deception harmed the developers by depriving them of material information necessary to determine whether to proceed with their development projects, and this continued or increased the risk that the projects would fail.

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Sunday, November 18, 2007

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held - again - that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions constituted self defense. Freeman had objected to this, citing the so-called “rule of completeness,” Fed.R.Evid. 106. The circuit affirmed, agreeing with the district court that the redacted portion, which dealt with what occurred during the robbery, neither explained the admitted portion, which dealt with the planning of the robbery, nor placed it in context.

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Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, ... even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative - as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.

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Friday, November 02, 2007


The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:

United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1.1, giving both the 4-point enhancement under subsection (a) and the 2-point bump under subsection (c). The government conceded that this was error, and also agreed that the court failed to make adequate factual findings.

United States v. Duran-Colon, No. 06-0974-cr (2d Cir. October 31, 2007), has an interesting discussion of the use of uncharged Rule 404(b) conduct introduced into evidence to show how the relationship between two co-conspirators developed. It noted that, at a jury trial, if "the uncharged conduct is highly similar to the charged offense, such evidence may be unduly prejudicial insofar as it suggests to the jury the defendant's propensity to commit the offense." This case, however, arose from a bench trial, so there was no error.

In United States v. Raftopoulos, No. 05-5963-cr (2d Cir. October 29, 2007), the court upheld a sentence that included lifetime supervised release for a sex offender. However, it remanded the case for clarification of one of the conditions - that prohibiting the defendant from being in a park or other such areas without prior approval from his probation officer. The condition did not contain language limiting the restriction to areas "in which children are likely to congregate," and the court was concerned that, without it, the probation officer would have "too much discretion in interpreting an ambiguous supervised release condition," an impermissible delegation of judicial power.

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007), contains a helpful discussion of Fed.R.Evid 803(3), which permits statements of a declarant's then-existing state of mind.

We close with two interesting harmless error cases. In United States v. Alvarez, No. 06-0107-cr (2d Cir. October 19, 2007), the court held that a procedural error in the calculation/imposition of sentence was harmless. And, in United States v. Nadal, No. 06-2924-cr (2d Cir. October 16, 2007), the court held that the defendant was not prejudiced by the absence of a written statement of reasons in the Judgment, required by 18 U.S.C. § 3553(c)(2) for above-Guideline sentences. Here, since the oral statement of reasons was adequate, a remand on this ground would have been "futile."

The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency ... involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district court agreed with the government, and sentenced Rosa to the ACCA fifteen-year mandatory minimum. The circuit reversed, however, concluding that the available information did not establish that Rosa’s 1991 plea “necessarily admitted, and supported a conviction for” an offense involving a firearm, under Shepard v. United States, 544 U.S. 13 (2005). During his state court plea, all Rosa admitted was that the robbery involved “what appeared to be a firearm.” Other available documents, such as the state bill of particulars and PSR, indicated that there might have been a real gun involved, although no gun was recovered.

The crux of this decision is its discussion of the kind of evidence that a district court is permitted to consult in deciding whether a predicate conviction qualifies under ACCA, what the circuit calls “Shepard evidence.” Where the predicate resulted from a guilty plea, the Shepard decision limits the available evidence to that arising from the record of conviction, and not other materials, such as police reports. Shepard cites specifically the plea colloquy, plea agreement, or other findings of fact adopted by the defendant when entering the plea as the appropriate sources. Here, clearly, the plea allocution by itself did not establish an offense involving a firearm, and the circuit rejected all of the other sources of information relied upon by the district court.

First, it rejected the use of the state’s bill of particulars. Even though a bill of particular might be considered a charging document, the bill did not help define the crime of which Rosa was convicted, or serve to limit the charges that he could have pled guilty to. And, since Rosa’s plea allocution mentioned “what appeared to be” a handgun, the plea trumped the bill’s mention of an unrecovered real gun.

Next the court considered, and rejected, the use of the federal PSR as Shepard evidence. The federal PSR relied entirely on the state PSR, and Rosa had objected to the conclusion in the federal PSR that he was subject to ACCA.

Third, the court held that the state PSR was not Shepard evidence, even though it contained a description of the offense conduct. Even the government agreed that this document did not establish that Rosa “necessarily” pled to an offense involving a firearm. Indeed, the court concluded that the state PSR was not any more useful to the Shepard inquiry than a police report, particularly since that report drew its offense statement from the police reports themselves.

Fourth, the state sentencing transcript, even taken together with the PSR, did not satisfy Shepard. Throughout Rosa’s plea the state trial judge carefully described an offense involving “what appeared to be a firearm.” Accordingly, its offhand reference to “the gun” at sentencing could not be considered an “explicit factual finding” that there was a gun. In addition, in light of this, Rosa’s failure to object to the sentencing court’s use of the word “gun” did not qualify as an admission by silence.

Finally, the government argued that by pleading guilty to first-degree robbery, Rosa waived a statutory affirmative defense that the gun was inoperable, a defense that, if established, would reduce the charge to second-degree robbery. The court disagreed. It viewed his plea as simply an admission that the state had met its burden of establishing that he displayed “what appeared to be” a firearm, and nothing more.

Comment: This is a great decision, but there is a twist. The conviction at issue here was actually a New York State Youthful Offender adjudication (a “YO”). Rosa did not raise, and the circuit did not consider, whether YO’s can be ACCA predicates at all. This an open question in the circuit. But, in United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005), Judge Patterson held that a YO was not an ACCA predicate, and the government, which had agreed that this was so in the district court, did not appeal.

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Who's SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, the circuit agreed with Willette’s claim that his “multiple punishments” for “more than one violation of a single statute” violated the Double Jeopardy Clause. Based on a close reading of the relevant statutes, the court rejected the state’s claim that the relevant “unit of prosecution” for this type of SORA violation was “each day that a sex offender fails to report a new address.” For Willette, who lived with his girlfriend four about fourteen months, this “daily offense” theory would have exposed him to 3,000 years in prison. Thus, while the six-month sentence on the first SORA violation was valid, the court vacated the consecutive sentences imposed on the three additional SORA counts.

The relevance to federal practice is that there are now various federal statutes that require sex offender registration, and impose criminal penalties for the failure to do so. See, e.g., 42 U.S.C. § 16913 and 42 U.S.C. § 14072. This decision should be kept in mind in those cases when the feds try to charge multiple violations.

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