Monday, December 31, 2007

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants repeatedly asserted, both before the jury and to the district court, that life without parole was the only legal option if they were acquitted of death. While this was true under the then-mandatory Guidelines, it was not true under the statute. On appeal, they asserted that they should be resentenced due to the district court’s mistaken belief that a life sentence was mandatory.

Holding: The circuit disagreed. Although it recognized that the district court erroneously believed that life sentences were mandated, and not just by the Guidelines, the court concluded that the judge had not “misread or misunderstood” the statute. Rather, it found that “a more likely explanation” was that “the defendants agreed to life imprisonment as the only possible non-capital sentence to strengthen their argument to the jury, at the penalty phase of this case, that justice did not demand their deaths.”

The circuit noted that, even after the defendants were acquitted of the racketeering counts for which life truly was mandatory, they continued to “insist” that the jury be charged that the only two sentencing possibilities on the CCE count were life imprisonment or death, and asked the court to emphasize this in its instructions, which it did. Moreover, the defendants then repeatedly argued this to the jury. Characterizing this as a “tactical” decision, the court held that the appellate claim that the district court erred in believing that a life sentence was required was waived - “truly” waived, such that not even plain error review would apply - and not merely forfeited. “A finding of true waiver applies with even more force when, as in this case, defendants not only failed to object to what they now describe as error, but they actively solicited it, in order to procure a perceived sentencing benefit.”

The court concluded that it was “no doubt that it was a tactical decision” by the defense attorneys to agree that a life sentence was the only alternative to death, and not a mistake, citing numerous treatises that have observed that capital juries are less likely to impose the death penalty if they believe that the defendants will not be released from prison. The court also noted that this tactical decision was a “reasonable” one, likening it to accepting a Rule 11(c)(1)(C) plea.

Comment: This is a tough case, because it really does seem that both the district court and the defense attorneys misread the CCE statute. It is, after all, a confusing provision that does mandate a life sentence in some circumstances, although, oddly enough, not in murder cases. The circuit is clearly off the mark in finding that the district judge did not misread the statute, since the judge repeatedly said that the section mandates a life sentence, and never said that it reached this conclusion based on the defendants’ offer to accept a life sentence. Nevertheless, the court is on firmer ground in finding that the defendants waived their appellate claim by inviting the error in the district court, since they clearly did so.

By the way, it is no accident that the court goes to such lengths to characterize the actions of defense counsel as “tactical” and “reasonable.” These findings, unnecessary to the disposition of this appeal, are an obvious effort to preempt any future claim that the defense attorneys were ineffective. Although the court never mentions Strickland, it is clearly the subtext of this portion of the decision.

2. Jury Selection

This case also has an interesting discussion of jury selection issues in capital cases. At trial, the district court dismissed a few jurors for cause based solely on their responses on written questionnaires that indicated, in essence, that they would never impose the death penalty in any case. The appellate court strongly urged district courts, particularly in capital cases, to question prospective jurors before dismissing them for cause, but refused to characterize this as a constitutional mandate. It also noted that any error here was rendered harmless by the jury’s refusal to impose the death penalty. The court rejected, at least on these facts, the notion that this type of error could produce a jury that was more likely to convict at the guilt phase. Here, the jury acquitted the defendants of two of the three capital counts.

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Wednesday, December 26, 2007

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.

In response to these objections, the government wrote to the district court and noted that it was “troubled by some of the defendant’s objections which seem to raise questions regarding whether the defendant has truly accepted responsibility.” The letter went on, however, to remind the court that the defendant had timely notified the authorities of his intention to plea guilty. In a subsequent, unsolicited, communication with the Court, the government took up this theme again, noting again that Griffin’s arguments were “troubling,” and, again, that the government questioned “whether the defendant has truly accepted responsibility.” This second brief contained a long discussion of the case law about acceptance of responsibility and it noted that a defendant’s guilty plea can be “outweighed by conduct that is inconsistent with acceptance of responsibility.” It concluded that it was “unclear” whether Griffin’s objections rose “to the level of outweighing his acceptance of responsibility,” but that they surely raised “questions on the issue of acceptance.”

During the sentencing hearings, which took place a few months after this briefing, the judge repeatedly warned the defendant that his apparently false denials relating to the BabyJ video and his post-arrest statements put his acceptance at risk. After the hearings, and just one day before sentencing, Griffin suddenly changed his position and “corrected” his previous statements. He admitted that he possessed a BabyJ video, and indicated that he might have told the FBI, although he did not recall for certain.

The district judge ultimately decided against applying the acceptance of responsibility adjustment, but indicated that he came to this position on his own, and was not influenced by the government’s briefing. Griffin received a 120-month sentence, the statutory maximum.

The Circuit’s Decision: The majority concluded that the government’s second letter was “beyond the pale,” and violated the plea agreement. First, the arguments Griffin made that triggered this response were “permitted by the plea agreement.” Moreover, the government’s extended discussion of the law of acceptance was not solicited by the court; rather, the government, “on its own initiative,” warned the court about the defendant’s “troubling” arguments and extensively reviewed the law surrounding acceptance of responsibility. The government’s letter also exceeded the bounds of the plea agreement, which only permitted it to correct inconsistencies in fact or law made by Griffin. Moreover, the government did nothing to retract its statements or ameliorate their impact. Although the government never expressly opposed the adjustment, it “could have done little more to attempt to persuade the court to deny it.” Finally, the majority was unimpressed by the district court’s disclaimer of reliance on the government’s statements; the appellate court did not want to have to speculate whether the court “was in fact influenced, even unconsciously.”

As it always does when the government has breached a plea agreement, the court remanded the case for resentencing before a different judge.

Comment: This case provoked an interesting debate between the dissent and the majority. Judge Wesley, in dissent, agreed that the government’s second communication to the court breached the plea agreement. His beef was with the majority’s choice of remedy, given that Griffin ultimately admitted that he had falsely denied important aspects of the relevant conduct. Judge Wesley acknowledged that since the government breached first, a later finding that Griffin lied after that initial breach would not render the breach harmless. But Judge Wesley saw this case differently. Griffin’s last minute change of position was, to Judge Wesley, an indication that Griffin had been lying along. Thus, Judge Wesley would have affirmed on a basic contract principle - Griffin did not bargain in good faith. “I am ... hard pressed to award defendant a remand in light of his acknowledged untruthfulness long before the government’s breach.” The majority’s response to this is actually fairly weak: it notes that the government “never made” this argument, and that there is “no authority” for Judge Wesley’s position.

This case is also interesting for what it does not say. Griffin raised a host of other issues - a Rule 16/due process argument based on the government’s refusal to turn over a copy of his hard drives, and challenges to certain enhancements that were based on his use of Kazaa. The majority ultimately ducked these, although Judge Wesley, perhaps imprudently, noted that he would have resolved them all in the government’s favor. With respect to the Rule 16 claim, the majority noted that last year’s Adam Walsh act contains provisions that address these matters; since similar Adam Walsh challenges have not yet reached any court of appeals “we think it better for the district court to address” the arguments first. More interestingly, for the Kazaa issues, the majority noted that, despite a lengthy hearing about the operation of Kazaa, the record is “confused and difficult to follow.” The appellate court suggested that it “would benefit from further exposition and clarification in the district court.”

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Wednesday, December 19, 2007

Summary Summary

Welcome to yet another installment of the blog's roundup of summary orders of interest.

In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel's failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer. In United States v. Turner, No. 06-0967-cr (2d Cir. December 17, 2007), the court remanded for resentencing where the government breached the plea agreement in four different ways; the court ordered that the case be sent back to a different judge, which it always does when the government has breached a plea agreement. In United States v. Miley, No. 06-1105-cr (2d Cir. December 13, 2007), the court affirmed an above-Guideline sentence of 48 months' imprisonment (the range was 24 to 30), finding that the district court properly based its decision on pending charges, arrests, outstanding warrants, the defendant's pattern of fraudulent activity, and the atypicality of the charged fraud.

Blurry Vision Leads to Clear Error

United States v. Lin Guang, No. 05-4724(L)-cr (2d Cir. December 13, 2007) (McLaughlin, Wesley, CJJ, Sessions, DJ)

Two defendants in an extortion case raised a host of garden-variety challenges to their conviction, to little effect, and to their sentence, one of which prevailed.

During one of the extortions, a victim was beaten and a caustic substance was sprayed into his eyes, briefly blinding him. Once he rinsed it out, his eyes felt better, but from that point on he found it painful to read for long periods of time, and thus had stopped reading the newspaper. Based on this account, the district court imposed a six-level Guideline enhancement for permanent injury, which is defined as “loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent.”

The circuit held that the district court’s finding that the impairment, as described, was both substantial and permanent, was clearly erroneous. While it was clear that the victim suffered a substantial impairment of his eyesight at the time of the assault, his testimony that, having recovered, it still hurt his eyes to spend time reading did not constitute a substantial impairment that was likely to be permanent. The case was remanded for resentencing.

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Monday, December 17, 2007

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be able to give a lesser sentence when they send it back.” After an uncontested criminal history departure, the court sentenced Liriano-Blanco to 46 months and, despite the waiver, he appealed.

Here is how the circuit untangled this mess. First, it observed that the ultimate question - whether a district court can impose a non-Guideline sentence in response to fast-track disparities - is still open in this circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But it decided it could not answer it here, because of the appeal waiver.

But the court very obligingly gave Liriano-Blanco a second bite at the apple, out of its “concern regarding mistaken statements by [the] sentencing judge about the defendant’s right to appeal.” The district court “relied on the possibility of appeal” in choosing a higher sentence, and the AUSA did not correct the judge’s error by pointing out that the appeal had been waived. The circuit concluded that, although it could not decide the case on the merits, there was nothing in the waiver to bar the court from returning the case to the district court so that, “having been made aware that Liriano-Blanco cannot appeal its decision, it might resentence him if it sees fit to do so.”

As for the fast-track question itself, we’ll just have to wait and see.

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In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result of a factual investigation, and not “opinion” work product, which is entitled to greater protection, because opinion materials might reveal the mental impressions of counsel. On this point, the court faulted appellant’s presentation to the district court; he relied solely on a conclusory affirmation from counsel that claimed that appellant was acting on his instructions, but did not give the court the tapes themselves for in camera review.

The court then grappled with the degree to which the work product doctrine applies to grand jury proceedings, which fall into a gap between Civil Procedure Rule 23(b)(3), which privileges materials prepared in anticipation of civil litigation, and Criminal Rule 16(b)(2), which privileges materials prepared by the defendant or counsel during the investigation or defense, but only in a “pre-trial proceeding in which there is a known defendant.” The court held that a “grand jury is entitled to fact work product where the government shows that the grand jury has a ‘substantial need’ for the materials and that it has ‘exhausted other means of obtaining’” them.

Here, both prongs were satisfied, although the court’s reasoning is a bit skimpy. For the first prong, the court simply held that a grand jury must have “access to the data it needs,” which “clearly includes” the recordings. Thus, there was “no doubt” that the need was “substantial.” Not the most satisfying analysis: the grand jury needs it, thus its need is “substantial.” With respect to the exhaustion prong, the court did better. It rejected appellant’s argument the government could have asked him about the contents of the recordings; this would not likely have been productive, since appellant had already claimed that they were privileged. Moreover, the government could not get what it needed from the other participant in the conversations, since his own account of the conversations would not replicate the “unique memorialization” contained in the tapes themselves.

In a separate summary order, the court rejected appellant’s alternative arguments. With respect to the Fifth Amendment, since the tapes were voluntarily prepared, there was no compulsion. And appellant could not claim an act of production privilege; the government knew enough about the existence of the tapes and their location - most likely they were either with appellant or his counsel - and requiring him to produce them would not require him to incriminate himself by admitting these facts. Nor would production “implicitly authenticate” the recordings. Finally, the recordings could not be deemed memorializations of appellant’s own communications with his counsel, since they did not involve the attorney himself.

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Friday, December 07, 2007


Welcome to the Blog’s periodic roundup of summary orders of interest.

In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns.

In United States v. Perez, No. 06-1040 (2d Cir. November 27, 2007), the court, yet again, bounced an Anders brief. Here it ordered counsel to file a supplemental brief that either (1) addressed the court’s Guidelines findings and calculations and the reasonableness of the sentence, or (2) explained why a discussion of reasonableness was unnecessary. If the brief really lacked all of these things, one wonders what it actually said!

Graft Dodger

United States v. Ganim, No. 03-1448-cr (2d Cir. December 4, 2007) (Jacobs, Sotomayor, Wesley, CJJ)

Until his downfall, Joe Ganim was the mayor of Bridgeport, Connecticut. In 2003, he was convicted of racketeering, bribery and other offenses arising out of a bribery and kickback scheme. In essence, he had a fee-splitting arrangement with public relations and engineering firms to which he would steer city business in exchange for “cash, meals, fitness equipment, designer clothing, wine, [and] jewelry.” At trial, he acknowledged receiving these “gifts,” but asserted that they represented tokens of friendship and legitimate lobbying activity. The jury felt otherwise, however, and Ganim ultimately received a 108-month sentence.

On appeal, he took issue with the district court’s jury instructions with respect to the various bribery-related crimes of which he was convicted: bribery, bribe receiving, extortion in violation of the Hobbs Act, and “honest services” mail fraud. His claim was that in situations where a bribe is given in exchange for a future act, the government is required to prove a “direct link” between the benefit received and a specifically identified future official act. The court disagreed, and affirmed his conviction. The “requisite quid pro quo ... may be satisfied [by] a showing that a government official received a benefit in exchange for his promise to perform official acts or to perform such acts as the opportunities arise.” The government need not draw “direct link” between the bribe and a particular future act.

Hmmm. The court’s rule sure sounds like it covers plain old lobbying. But, anyway, that’s the law.

Wednesday, December 05, 2007

Writ Small

United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)

Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review.

This opinion is interesting, however, because the court identifies a situation when this obscure writ would lie. Most past cases have noted only the writ is “probably available,” or “might be deemed available,” or “might be available” in certain circumstances. Here, the court makes clear, without apparent qualification, that the writ would lie “if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues.” Now we know.