Thursday, February 28, 2008

Summary Summary

It's been a slow month for summary orders, but at last the court has eked out three of them worth noting.

First, in United States v. Spencer, No. 06-2517-cr (2d Cir. February 26, 2008), the court reversed both defendants' conviction of conspiracy to commit bankruptcy fraud because the judge erroneously charged the jury that the defendant who testified had a "deep personal interest in the outcome of his prosecution" that created "a motive for false testimony."

"mandate rule" prohibits relitigating on remand issues that the appellate court has already ruled on. In United States v. Argentina, No. 06-1989-cr (2d Cir. February 26, 2008), the court noted that there is an exception to the mandate rule for "cogent and compelling reasons" such as new evidence; here, however, any error in the district court's refusal to apply the exception was harmless.

Finally, in United States v. Sutton, No. 06-2522-cr (February 11, 2008), the court vacated a special condition of supervised release that was in the written judgment, but that the judge had not imposed orally.

Wednesday, February 27, 2008

Risky Business

United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)

David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed. It held (again) that New York State convictions for attempted burglary in the third degree (N.Y. Penal Law §§ 110/140.20) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) both involve "conduct that presents a serious potential risk of physical injury to another."

For the attempted burglary, the court reaffirmed its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and also noted that a recent Supreme Court case, James v. United States, 127 S.Ct. 1586 (2007), held that attempted burglary is an ACCA predicate.

Similarly, in United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per curiam), the court held that a conviction of second-degree weapon possession, after a jury verdict, was an ACCA predicate. Here, the court rejected Lynch's arguments that (1) the rule should be different after a guilty plea and (2) that, since Lynch did not expressly admit all of the elements of the offense in his state court plea, the conviction was not covered by ACCA.

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Sunday, February 24, 2008

Fast-Track Train Still Stalled

United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)

Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in “fast-track” districts as the basis for downward variance. Once again, all the court notes is that a district judge does not have to consider fast-track sentences. But, of course, we already knew that.

Comment: Just decide the *$&@#)$ issue already. It is not even all that controversial any more, in light of Gall and Kimbrough.

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The Government Giveth and the Government Taketh Away

United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008) (Miner, Sack, Hall, CJJ)

Carol Dominguez faced 240-months in prison: a ten-year crack minimum that was doubled because of her prior conviction. The government moved for a downward departure under 5K1.1 and 18 U.S.C. § 3553(e), then asked the court to sentence her somewhere within a 151 to 188 month range. At sentencing, the judge granted the government's motions, and then considered mitigating information from Dominguez’ family, friends, employers and the defendant herself. The judge indicated that he believed he had the “discretion to sentence you as to what I feel would be fair and reasonable under the circumstances.” He said that he had “reviewed and considered all the pertinent information including but not limited to the presentence investigation report, submissions by counsel the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines” and sentenced her to time served - 464 days - a 93% reduction from the mandatory minimum.

The government appealed, and the circuit reversed, finding fault with the district court’s procedures. Here is what the court said should happen on remand. First, the district court must determine the correct Guideline range, which here is 240 months, the mandatory minimum. Then, since section 5K1.1 does not really apply here - it does not authorize departures below a mandatory minimum - the court must consider the government’s motion under § 3553(e), under which “any reduction may be based only on substantial assistance to the government and on no other mitigating considerations” (emphasis added). On this point, an open question here, the court joined the Fifth, Eighth and Ninth Circuits. The court ended by suggesting that the 5K1.1 factors would be “instructive in determining how much of a departure below the statutory minimum is appropriate,” even though that section does not itself apply.

Comment: This is a very strange opinion. The circuit now seems to believe that when sentencing cooperators who face a mandatory minimum, a court cannot apply § 3553(a); it can base its decision only on the extent of the cooperation. That does not really make much sense, since § 3553(a) obviously applies in all sentencings.

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Russian Revolution

United States v. Verkhoglyad, No. 05-4210-cr (2d Cir. February 14, 2008) (Cabranes, Raggi, CJJ, Berman, DJ)

Oleg Verkhoglyad was a Russian mobster who repeatedly received lenient treatment. First, after cooperating in a 1998 extortion case, he received a 5K1.1 departure. Six months after getting out of jail, he violated his supervised release by committing a multitude of new offenses. He pled guilty to the supervised release violation and a new felon-in-possession charge, then talked his way into another cooperation agreement. After nearly four years of working with the government, he received another 5K letter. This time, he got 4 years’ probation on the gun charge and 3 years of supervised release on the supervised release violation. Within weeks of his sentencing, he violated his supervision by using marijuana and leaving the district without permission. This time, however, his luck ran out. The district judge slammed him, giving him 57 months’ imprisonment, the top of the range he originally faced on the gun charge, even though the Guidelines recommended only 5 to 11 months.

He appealed this sentence, claiming it was both procedurally and substantively unreasonable, but the circuit affirmed. On its surface, the opinion treads no new ground, since it was obvious that the district court did all that 3553(a) requires.

However, lurking below the surface of this opinion is a mini-revolution. Just last year, in United States v. Sindima, 488 F.3d 81 (2d Cir. 2007), the court reminded us all that the primary purpose of a violation of probation sentencing is to punish the breach of trust, and not the conduct itself. Here, the court partially overrules Sindima, without really saying so, by holding that a probation violation sentencing is in fact a resentencing on the underlying offense. This decision is thus clearly intended to make above-Guideline sentences easier to impose in probation violation cases, despite the seemingly opposite approach the court took in Sindima. Worse still, the court does not really deal with the tension it has created with Sindima, other than to assert that Sindima was not supposed to “ignore the fact that revocation of probation requires a defendant to be resentenced on the crime of conviction, and not simply on the breach of trust.”

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Friday, February 15, 2008

The Accidental Terrorist

United States v. Elfgeeh, No. 06-0638-cr (2d Cir. February 14, 2008) (Kearse, Sack, CJJ, Mills, DJ)

Abad Elfgeeh, assisted by his nephew, Aref, ran a money-transfer business out of an ice cream parlor in Brooklyn that funneled money to Yemen and a host of other countries. Although the case had early on been linked to a large-scale terrorism investigation, the defendants were charged only with financial crimes. The district judge took pains to keep the issue of terrorism out of the trial, and the main issues on appeal related to the defendants’ concerns that the trial was nevertheless tainted by its specter.

A. The Terrorism Stuff

1. Testimony

During the trial, an FBI agent mentioned terrorism in response to two of a defense attorney’s questions on cross-examination. The district judge promptly instructed the jury that this was a case about “banking,” and “ha[d] noting to do with terrorism.” Later, when Abad took the stand, the AUSA asked several him questions about whether money he sent was used to purchase weapons or ammunition in connection with tribal violence in Yemen; Abad denied knowing whether this was true.

On appeal, the defendants argued that these events required a new trial, but the circuit disagreed. It found no reason to conclude that the jury could or would not heed the judge’s curative instructions with respect to terrorism. As for Abad’s testimony, the district judge had warned the defendants that he would permit evidence of what the money had been used for if they claimed that they were merely helping immigrants send money to their families. Since Abad clearly opened this door, there was no error.

2. Publicity

Just after the trial began, several of the local tabloids published highly inflammatory articles that linked the defendants to terrorism, and that mentioned evidence that the jury would not otherwise hear. Oddly enough, neither the judge nor any of the attorneys seemed to know what to do in this situation, and no one seemed familiar with the Second Circuit cases that outlined the correct procedures. After a good deal of fumbling around, Aref’s attorney ultimately requested that the jury as a whole be asked whether anyone had read the articles, while Abad’s attorney asked the court not to. The judge sided with Abad’s counsel, and did not poll the jury. He merely told the jurors not to read any press accounts.

Even the circuit recognized that the lower court’s handling of the issue was “a bit haphazard.” But nevertheless a majority found no error. Since the judge was faced with one attorney who wanted the jury questioned and one who did not, the appellate court found no abuse of discretion in the district court’s decision not to poll the jury.

On this issue, Judge Sack dissented. He concluded that there was a real risk that one or more jurors had read the articles and that “there was an extraordinary danger of actual prejudice” if they did. His view was that the district court should have granted Aref’s attorney’s request to poll the jury and that Aref - but not Abad, who was bound by his attorney’s position - should receive a new trial on this ground.

B. Mens Rea

The panel also split on the issue of the district court’s instructions on one of the money-transferring counts. Both Aref and Abad were charged with operating an unlicensed money transfer business after October 2001, under a recently amended statute that required the government to prove that they knew the business was unlicensed. Aref asked the court to so instruct the jury, but it, erroneously, did not.

The circuit held that the error was harmless. As to Abad, this was easy - the government produced (1) a letter from the New York State Banking Department informing him that he needed a license to run a money-transmitting business, (2) evidence from that same agency that the business lacked a license, and (3) testimony from his attorney that he told him the business needed to be licensed.

As to Aref, the majority held that, while the evidence that he knew the business was unlicensed was “more circumstantial” - that is, nonexistent - there was enough. First, his attorney did not put the matter at issue by arguing this point either in his opening or summation. Moreover, Aref did not testify that he was unaware that the business was unlicensed. He claimed that he did not participate in the money-transfer business at all. The majority held that evidence of the “furtiveness” of Aref’s actions constituted “overwhelming evidence that he knew” that the business was unauthorized. Since a license “would indicate authorization, the jury was entitled to find” that he knew it was unlicensed.

Judge Sack once again dissented with respect to Aref. The judge did not believe that there was “overwhelming” evidence of Aref’s knowledge of the “intricacies of an operation run by his uncle.” He saw the evidence as supporting an inference that Aref was merely doing his uncle’s bidding, and that a properly instructed jury might have concluded that Aref believed that his uncle “must have licensed the business,” since he displayed other business licenses in his store.

C. Sentencing Issues

Although Aref struck out on his two seemingly valid trial issues, he eked out a small sentencing victory. The district judge imposed an obstruction of justice enhancement without making any specific findings, and the circuit remanded for that purpose.

The court also vacated the above-Guidelines fine that the district court imposed on Abad. Even under plain error review, the procedural irregularities were severe enough to warrant a remand.

Thursday, February 07, 2008

Dismembers Only

United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)

Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, if spared, Pepin would spend the rest of his life in prison and would not have contact with minors. When the government tried to recast the issue in a new notice as one of “moral condemnation,” and not future dangerousness, the judge stood his ground.

On appeal, the circuit first had to deal with the government’s claim that Judge Weinstein made a legal error - obviously the government was hoping for de novo review. The government lost on this point. In exercising his discretion, Judge Weinstein did not commit a legal error. Despite Supreme Court precedent holding that a wide range of evidence is expected, and perhaps even desirable, at the penalty phase, district courts are not required by law to admit all of the evidence proffered by the government.

Turning next to the district court’s exercise of its discretion, the circuit affirmed, as well. Judge Weinstein supported his ruling with detailed reasoning that was neither arbitrary nor irrational, and the circuit explicitly noted that it was not going to “simply substitute” its judgment for his.


Judge Weinstein’s primary concern had been that the dismemberment evidence would be too prejudicial to be admitted at the penalty phase. The relevant statute, 18 U.S.C. § 3593(c), permits the exclusion of evidence the prejudicial potential of which “outweighs” its relevance, and the judge concluded that this standard was met. With respect to the guilt phase, Rule 403 permits exclusion only if the prejudice “substantially outweighs” the relevance, a more stringent standard. But, since the same jury was to sit at both phases, the judge concluded that the evidence should be be precluded from the guilt phase as well, to protect the penalty phase.

The circuit first held that Judge Weinstein committed a legal error because he applied the wrong legal standard. In effect, he applied the more lenient § 3593(c) admissibility standard to the guilt phase, when Rule 403 should have governed.

The appellate court did not stop there, however. It also held that the district court abused its discretion by precluding the evidence from the guilt phase, even under Rule 403. Since the issue at the guilt phase was whether the murders were “intentional,” the fact that Pepin dismembered the bodies was “potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase.” The court went on to note that it might well be that the evidence will be inadmissible at the penalty phase, if there is one, but that “the possibility of curative instructions” would take care of the problem. In any event, the court declined to rule on this issue now.

The court did qualify its ruling somewhat, noting that perhaps “all evidence of dismemberment” should not be admitted at the guilt phase, but that the district court’s “blanket ban” could not stand.

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