Wednesday, July 30, 2008

In Search of Lost Time

United States v. Abiodun, No. 06-5335-cr (2d Cir. July 30, 2008) (Cardamone, Cabranes, Katzmann, CJJ)

Emmanuel Abiodun was one of a group of people who ran a large credit card and identity fraud scheme in which credit reports were illegally downloaded and used to obtain credit cards in the victims’ names. Abiodun himself purchased between 300 and 400 reports and, the district court found, was responsible for a loss of between $1.6 and 2.0 million.

The court also increased his offense level by six levels based on its finding that Abiodun’s conduct involved more than 250 victims. The court included in this number individuals who suffered no actual financial loss, but who spent time securing reimbursement from banks and credit card companies.

On appeal, the circuit agreed that this was appropriate. The fraud guideline defines a victim as anyone “who sustained any part of the actual loss” for which the defendant is accountable. But this can include monetary harm, or any other type of harm that is “readily measurable in money.” On appeal, Abiodun argued that under these definitions it was error for the court to include individuals whose identities were stolen but who were fully reimbursed for their financial losses.

The circuit disagreed. Fully reimbursed individuals can still be victims under this guideline if “as a practical matter,” they suffered “(1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms.” Thus, the district court correctly concluded that, if someone whose credit information was stolen spent “an appreciable amount of time securing reimbursement,” this loss of time could be measured monetarily and thus that such a person would be a "victim."

Despite this holding, which is in essence, an affirmance, the court vacated the sentence. The district court counted such “time losers” as victims, but did not add in the value of this time when calculating the overall loss amount. But the definition of “victim” is limited to persons whose loss is included in that total. Thus, on remand, the district court either has to (1) recalculate the loss amount to include the value of the time lost by these individuals or (2) keep the loss amount the same, exclude these people from the victim count, and determine whether Abiodun’s crime still affected more than 250 victims.


There are a couple of oddities about this decision. The first is that it could result in a higher sentence on remand, since the loss amount might go up. Usually when this is the case, the court offers the defendant the option of withdrawing his appeal instead of pursuing the remand, but it did not do so here. See, e.g., United States v. Harrington, 354 F.3d 178, 186 n.5 (2d Cir. 2004). The second is that the court also vacated the sentence of Abiodun’s co-defendant, even though there is nothing in the opinion to suggest that his case presented this same issue.


Glitter and Begay

United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)

In New York, reckless endangerment in the first degree involves conduct “evincing a depraved indifference to human life” that “creates a grave risk of death to another person.” Nevertheless, under Begay v. United States, 128 S.Ct. 1581 (2008), the circuit here concludes, it is not a “crime of violence.”

Under Begay, which interpreted the Armed Career Criminal Act, 18 U.S.C. § 924(e), an offense must present a degree of risk similar to, and proscribe conduct that is similar in kind to, the offenses listed in the statute - burglary, arson, extortion and offenses involving explosives - to qualify as a "crime of violence." For “in kind” similarity, the statute must involve conduct that is “purposeful,” “violent,” and “aggressive.”

Here, the court applied this same rubric to the definition of “crime of violence” in sentencing guidelines, which is identical to that in § 924(e), and concluded that reckless endangerment in the first degree is not a crime of violence. While the statute describes conduct that poses a sufficient degree of risk, the offense is not similar “in kind” to the listed offenses because it does not “criminalize purposeful or deliberate conduct.”

This case also reminds that the Begay analysis is “categorical”; it looks only to the statutory elements, and ordinarily the defendant’s actual conduct is irrelevant.


Car Trouble

United States v. Delossantos, No. 06-4713-cr (2d Cir. July 25, 2008) (Feinberg, Miner, Parker, CJJ)

Marino Delossantos was a drug dealer, who was negotiating a deal with an undercover officer. While Delossantos was under surveillance, defendant Rodriguez was seen at the building where Delossantos lived ,and also drove him to and from various locations related to the drug deal. Rodriguez was arrested at the end of one such trip; he made statements and gave consent to search his apartment and car, where officers found drugs and other evidence. He moved to suppress the statements and evidence as the fruit of an illegal arrest, and the district court granted the motion, holding that no probable cause for the warrantless arrest of Rodriguez.

On the government’s appeal, the circuit reversed, holding that the agents had probable cause to arrest Rodriguez without a warrant, based on the available facts. A car passenger is often engaged in a “common enterprise” with the driver, and it is “reasonable” for an officer to “infer that if one person in a vehicle is engaged in drug dealing, so are the other[s].”

Nor was the court impressed with Rodriguez’ efforts to qualify or explain the individual facts upon which probable cause rested. Those explanations, even though “persuasive in varying degrees,” do not alter the existence of probable cause because the facts must be considered in their totality, and in light of the “training and experience of the arresting agents.”


Sunday, July 27, 2008

Remand Performance

United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)

This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month’s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender. The range that applies in such cases is the product of the career offender guideline, and not of the 100-to-1 powder to crack ratio.

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Warrant Peace

Untied States v. Waker, No. 07-4160-cr (2d Cir. July 22, 2008) (Hall, Livinston, CJJ, McMajon, DJ) (per curiam)

Here, the defendant unsuccessfully argued that various defects invalidated a search warrant.

He first cited two typographic errors - the magistrate accidentally set the execution deadline as April 30, 2004, instead of April 30, 2005, and the agent accidentally post-dated by one day facts in the supporting affidavit. But the court held that “minor errors” are not cause for invalidating a warrant. Here, the dating errors were harmless because “each document in which they occurred contained accurate information from which one could easily establish the correct dates.”

Waker also argued that the warrant’s cross-reference to the applicant’s affidavit violated the Fourth Amendment’s particularity requirement. The court again disagreed. The affidavit was attached, the language of warrant clearly incorporated it, and this is enough under the Fourth Amendment.


Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)
Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)

This month, the court re-issued decisions in two cases decided in June - one of which the court subsequently withdrew [see prior posts “Role of Certs” and “Withdrawal Symptoms”] - dealing with counsel’s obligation to file a petition for a writ of certiorari.

In Nnebe, an appeal of the denial of a 2255 motion, all parties agreed that appointed counsel violated the court’s CJA plan by failing to seek certiorari despite his client’s request that he do so. At issue here was the appropriate remedy. The government argued that 2255 relief was unavailable, and that this should end the case. Nnebe argued instead that the court should construe the petition as one to recall the mandate and vacate its judgment. The court agreed to do so. Although this is an “unusual remedy,” Nnebe acted with diligence and clearly established that he requested that a certiorari petition be filed.

In Pena, where the defendant had retained counsel, the court held that the constitutional right to the effective assistance of counsel does not include either discussing with the defendant the possibility of seeking certiorari or assisting him in filing a petition. Unlike in Nnebe, the CJA did not apply.


Deceptively Simple

United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)

The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it. Specialists also trade for their own firm’s accounts. “Interpositioning” occurs when the specialist interposes himself in the middle of public trades to make a profit for the firm. It is prohibited by NYSE rules.

Defendant Finnerty engaged in thousands of instances of interpositioning, making $4,500,000 in profit for the firm’s account, and thereby inflating his bonus. He was charged with, and convicted of, three counts of securities fraud. After trial, the district court granted his motion for a judgment of acquittal, holding that the government failed to prove that interpositioning was a “deceptive act” under securities law because the government did not “provide proof of customer expectations.” The government appealed, and the circuit affirmed.

Securities law prohibits any “manipulative or deceptive device or contrivance” in connection with the purchase or sale of securities. The government did not argue that there was any market manipulation here, arguing only that Finnerty’s actions were deceptive. It agreed that he made no misstatements, however, arguing that he engaged in “non-verbal deceptive conduct.” While conduct can be deceptive, it “irreducibly entails some act that gives the victim a false impression.”

Here, the government identified “no way in which Finnerty communicated anything to his customers, let alone anything false.” Rather, what he did was a “garden variety conversion.” Even if some customers might have understood that NYSE rules prohibit specialists from interpositioning and that those rules “amount to an assurance (by somebody) that interpositioning will not occur,” here there was no evidence that this understanding was “based on a statement or conduct by Finnerty.” Thus, he did not commit securities fraud.

Nor was his ability to take advantage of his position by itself deceptive; “not every instance of financial unfairness” constitutes securities fraud absent proof of manipulation, a false statement, a breach of duty to disclose, or deceptive communicative conduct. Finally, the evidence of consciousness of guilt could not overcome this problem. Finnerty clearly knew that he had violated an NYSE rule, and tried to cover it up. But this does not establish securities fraud, either.

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Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.


In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and paid for her room. The next day, Julio brought her $14,000 in a duffel bag and told her it was for her handler in the D.R. He drove her to the airport and she flew back, turned in the money and received $3,000.

One month later, she made another trip to New York with two suitcases given to her in the D.R.. This time, she was caught at JFK with 3.25 kilograms of cocaine. She agreed to cooperate by making recorded phone calls and a controlled delivery, assisted by an ICE agent, who posed as a cab driver. She called the phone number she had been given - with instructions to speak to Julio - and Andrea answered. Andrea said that Julio was sleeping, but that she had spoken to Leerdam’s handler, who said that Leerdam should come to their house. Leerdam and the “cab driver” brought the suitcases inside, while Andrea remarked, “so much work, huh?” then said that she had been told to take Leerdam to a hotel.

At this point, both women and Julio were arrested. Andrea made a post-arrest statement denying that she knew Leerdam, and asserting that she was doing a favor for her nephew by bringing Leerdam to a hotel. She also denied knowing what was in the suitcases. Later, she told agents that she had met Leerdam before, but did not know her name. Julio, in his statement, said he did a favor for his nephew by - referring to the September trip - by driving Leerdam around. He denied giving her any money.

The Appeal

The court reversed both defendants’ convictions on the ground that there was insufficient evidence that they entered into the conspiracy with the specific intent to commit the offenses that were its objects or that they had the requisite knowledge.

For Julio, the court held that, while there was “ample” evidence of the existence of the conspiracy and of his presence and participation in events that furthered it, there was insufficient evidence that he did so knowingly and with the intent to further a cocaine smuggling and distribution conspiracy. For the September trip, there was no evidence of the contents of the suitcase, or that Julio know what was in it. Given this, and his “complete lack of participation” in the October events, even the $14,000 he gave to Leerdam in September was not enough. While “indicative of participation in illegal behavior,” it was consistent with a wide variety of offenses, and was by itself insufficient to prove his specific intent to participate in the drug conspiracy. The court also rejected the argument that the fact that Leerdam had been told to call Julio during the October trip rendered the evidence sufficient. The request was not fulfilled, and Julio was dormant during this entire episode. Finally, the court rejected the claim that Julio’s false exculpatory statement rendered the evidence sufficient. The totality of the facts, in the aggregate, was not enough to sustain his conviction.

For Andrea, the evidence was “even more sparse.” Indeed, the court issued an order reversing her conviction one day after oral argument. The evidence against her “considered in the aggregate,” supported “at most” an inference that she “knew that she was assisting suspicious behavior.” But it was also consistent with “providing hospitality to her nephew’s girlfriend and regretting” it.

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The Amazing Trace

United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)

This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag. At trial, the government called an interstate commerce nexus expert, but did not introduce testimony about a trace report to demonstrate the gun’s legal chain of custody. Crawford testified that there was no gun in his bag and, in summation, his attorney adopted this “frame-up” theme as the defense. Counsel noted in particular that there was no evidence that the government had traced the gun, an effort to suggest that such a trace would have established that the gun belonged to someone other than Crawford.

During deliberations, the jury sent a note asking “why wasn’t the gun traced to the original owner?” As the parties discussed this, the district judge learned that the government had given the defense a copy of the trace report before trial. Accusing defense counsel of gamesmanship, the judge sua sponte reopened the evidence and allowed the government to call the ATF agent who had conducted the trace. The agent explained the result of the trace, and also testified that the report had been provided to defense counsel before trial.

On appeal, the circuit ordered a new trial, holding that the district court abused its discretion by reopening the trial during deliberations. The appellate court adopted the Fourth Circuit’s approach to this issue, which focuses on the “timeliness of the motion, the character of the testimony and the effect of granting the motion.” The party seeking to reopen must give a “reasonable explanation for failing to present the evidence” in its main case, and the evidence must be “relevant, admissible, technically adequate, and helpful to the jury.” The reopening should not imbue the evidence with “distorted importance,” and should not prejudice the opposing party, which must have an adequate opportunity to respond to it.

Here, the reopening failed every part of this test. The government offered no explanation at all for its failure to introduce the trace report; instead, it argued that it did not have to since it did not ask for the reopening. The circuit disagreed. “That the district court played an active role in initiating reopening proceedings does not excuse the government from showing that it had a reasonable explanation for failing to introduce the evidence in a timely manner.” Indeed, here the court noted that it is possible that the government’s failure to introduce the trace report was a “strategic choice” because the content of report lent credence to the theory that Crawford was framed.

Second, as to the character of the evidence, the court agreed that the trace report was relevant and “probably” helpful to the jury. But here, the government also introduced evidence that defense counsel knew that a trace had been conducted. This evidence was “questionable,” to say the least.

Finally, the court considered the overall effect of the evidence. First, it agreed that the belated introduction of the report “probably imbued” it with “distorted importance.” The evidence also greatly prejudiced the defense. Defense counsel’s summation rested on the existing trial record, where there was no trace report. He probably would not have made that argument if the government had introduced the report in its case-in-chief, and he had no ability to respond to it adequately because he could not sum up on it after the reopening.

Moreover, the evidence that the report had been given to counsel was “devastating” to the defense because it suggested that counsel had attempted to mislead the jury into believing something he knew not to be true. On this point, the court categorically rejected the government’s argument that counsel acted improperly in commenting on the absence of evidence about the trace report - it was perfectly “appropriate” for him to highlight the omission of the report in his summation, and he did so in a way that was neither distorting nor misleading.

In concluding, the court noted that, although it was not adopting a “blanket rule” against admitting evidence after the start of jury deliberations, this should be done only with “extreme reluctance.”


Summary Summary

So far, a bunch of interesting summary orders this month. Here’s the roundup:

In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant’s participation in the conspiracy.

United States v. Gumbs, No. 06-4708-cr (July 24, 2008), upheld a finding that the defendant’s false claim of United States citizenship to pretrial services warranted a sentence enhancement for obstruction of justice.

In United States v. Marucilli, No. 08-1145-cr (July 23, 2008), the court vacated the defendant’s conviction in a housing fraud case because the district court erroneously instructed the jury that the money that funded the housing subsidy was the property of the United States. This “improperly took out of the hands of the jury the factual issue of whether the United States exercised ‘sufficient supervision and control’ over the funds to support the allegation that they were ‘moneys of the United States.’”

In United States v. Givens, No. 05-5189-cr (July 18, 2008), there court was an Apprendi error in the court’s treatment of a “continuing criminal enterprise” sentence under 21 U.S.C. § 848(a). The critical findings - role and drug quantity - should have been made by the jury, not the court.

In United States v. Mahaffy, No. 07-3570-cr (July 7, 2008), the court vacated a false-statements conviction under 18 U.S.C. § 1001 because the charge on intent was erroneous. A statement that is literally true cannot support a conviction under this section, even if it is intended to mislead the questioner.

Wednesday, July 16, 2008

Bank Failure

United States v. Carlton, No. 07-2344-cr (2d Cir. July 16, 2008) (Winter, Miner, Cabranes, CJJ)

In June of 2004, after a hearing, Judge Robinson found that Carlton, who was on supervised release for a bank robbery, had committed another one. He sentenced Carlton to 30 months’ imprisonment. About a year later, the government indicted Carlton for that same robbery and the case was randomly assigned to Judge Robinson. Carlton asked the judge to recuse himself, but he refused. A jury convicted Carlton, and the judge sentenced him to 600 months’ imprisonment.

On appeal, he argued that it was error for the judge not to recuse himself, but the circuit disagreed. Nothing that the judge said or did at the supervised release revocation would cause his “impartiality reasonably to be questioned.” Moreover, the judge did not have “personal knowledge of disputed evidentiary facts concerning the proceeding.” Judge Robinson’s knowledge did not come from an extrajudicial source; it came only from the revocation hearing. Knowledge acquired from judicial duties does not constitute grounds for disqualification.

The court also rejected Carlton's claims that there was a double jeopardy violation, and that his prior bank robberies should not have been admitted under Rule 404(b). Taken together, the similarities among the robberies established the existence of a pattern.


The big mystery here is why there is no discussion of the 50-year sentence. Was it challenged on appeal at all? Strange.


Sunday, July 13, 2008

Discovery Channel

United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked at Rule 16(a)(1)(B)(ii), which mandates discovery of all statements the defendant makes in response to interrogation by a known government agent. The court concluded that Siraj’s reading of subsection (B)(i) would make subsection (B)(ii) superfluous because “every statement discoverable under subsection (ii) would also be discoverable under subsection (i).”

Second, the court held that, since subsection (B)(ii) expressly makes discoverable only those statements made to known government agents, “Rule 16 implicitly excludes from its scope written memorializations of other oral statements such as those at issue here.”

Finally, the court rejected Siraj’s argument that a 1975 case, Johnson, under which the statements would have been discoverable, applied. Since Rule 16 did not have a provision like (B)(ii) at that time, the case did not govern here.


This decision is probably correct, although there are better reasons than those cited by the court. The real key here is the word “by” in Rule 16(1)(B)(i). That word seems to limit this provision to statements, or at least writings, attributable to the defendant himself, i.e. those he authored, and not accounts memorialized by others.

It should also be noted that this case is probably not as grave a problem for defendants as it would seem at first glance. It does not seem that Siraj is claiming that he did not get the reports at all. Although one cannot tell for certain from the opinion, it appears that he got the reports as Rule 3500 material of either the undercover or his handler, and that his only real complaint is that he wished he had received them sooner, which he would have under Rule 16. Unfortunately, careless drafting of the opinion makes it difficult to tell for sure. But, obviously, if Siraj got the reports as 3500 material, he would be hard pressed to claim prejudice about the timing of the disclosure. They were, after all, his own statements. The court would therefore not likely be sympathetic to a claim of unfair surprise.


No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term - “trafficking” - that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent holding that there is no distribution, where two individuals jointly acquire a drug for their own use. Wallace was not a simple “joint possessor.” He testified that he gave drugs to others that he had previously purchased on his own.


The Secret Guardin'

United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)

In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.

The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion - advocated by some in Congress - that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.

First, a district court must decide whether the evidence is discoverable at all. Next, it must decide whether the state secret doctrine applies; it does when there is a “reasonable danger” that production of the evidence will expose evidence that, in the interest of national security, should not be exposed, and where the “head of the department” that has control over the matter has said so. If the material is discoverable and privileged, the court must next determine whether it is material to the defense; that is, useful “to counter the government’s case or to bolster a defense.” All of these rulings are reviewed on appeal for abuse of discretion.

Here, the circuit found no abuse of discretion, even though the government did not establish the privilege through the “head” of the relevant “department.” Here, this formality would have been of “little or no benefit.” On its own review, the court agreed that the district court did not deny the defendants any helpful evidence, and that the lower court permissibly relied on ex parte contacts with the government.

Relatedly, this decision also deals with NYCLU’s motion to intervene in the case. First, the court had to decide whether such a motion is even proper. It is, given the public’s First Amendment right to access to criminal proceedings. Since federal courts have the inherent power to formulate procedural rules to implement a remedy for the violation of recognized rights, “a motion to intervene to assert the public’s First Amendment right of access to criminal proceedings is proper.”

The court next held that the standard of appellate review of the disposition of such a motion is abuse of discretion, and that there was no abuse of discretion here.

Finally, the district court did not err in denying NYCLU access to its sealed orders and other documents relating to the privileged materials, although the court stressed that district courts should avoid sealing judicial documents “in their entirety” unless it is truly necessary.

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Lethal Rejection

United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)

Donald Fell was not having a good day. During a card game, he killed his mother’s boyfriend, while his buddy, Charles Lee, killed Fell’s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car’s owner. Eight days later, they were arrested in Arkansas.

After Lee “accidentally[?]” hanged himself in prison, Fell faced a capital trial alone. He did not seriously contest his guilt, and was convicted. After a two-week penalty trial, the jury sentenced him to death, and Judge Sessions imposed that sentence. On appeal, Fell raised a series of challenges to the death sentence, all of which the court of appeals rejected.

Jury Selection

Fell’s primary complaint was that the district court improperly rejected for cause three potential jurors who were in fact qualified to serve. The court of appeals used a “substantial[ly] deferen[tial]” standard of review, in light of the district court’s “dependence on its direct observations of demeanor and subjective assessments of credibility,” and affirmed.

The first, Juror 64, had expressed strong reservations about the death penalty, but stated that she could nevertheless follow the court’s instructions and apply the law. Although viewing this as a “close[] call” the court found no error in her dismissal.

This juror had indicated, in a written questionnaire, that she strongly opposed the death penalty, although she could envision some circumstances, such as genocide or mass murder, that would warranted it. During voir dire, however, she indicated that she could follow the law and the “process,” although with further probing she vacillated somewhat, ending with a statement that she would “definitely lean more” toward life imprisonment. On the government’s motion, the judge excused her, finding that she could not be “fair and impartial.”

The circuit agreed. Although this juror said she could put aside her personal aversion to the death penalty and follow the law, she “walked a fine line” throughout her questioning. Accordingly, the district court’s conclusion that she could not be fair was within its “broad” discretion.”

The next juror, Number 141, indicated in the questionnaire that he was neither strongly in favor of nor strongly opposed to capital punishment. During voir dire, however, he several times said that he would not impose the death penalty absent evidence of premeditation. After extensive questioning, however, he reversed himself and indicated that he could consider a death sentence on the basis of reckless, but not intentional, conduct that resulted in death. The district court concluded that the question of this juror’s fairness was “so close” that it would be unfair to permit him to serve.

Again, the circuit found no error. The district court “properly
considered all of Juror 141's responses in the context in which they were given and did not err in concluding that his views would significantly interfere with his duties as juror.”

The last challenge was to Juror 195, who, in writing, indicated that she was a strong supporter of the death penalty. During questioning, however, she repeatedly expressed uncertainty as to whether she could impose it if the decision were in her hands. The district court properly excluded her because her inconsistent responses created a legitimate doubt that she could follow the court’s instructions.

Evidentiary Issues

The court rejected several claims relating to the district court’s evidentiary rulings.

The government had originally offered Fell a plea agreement that would have resulted in a sentence of life imprisonment. Fell and his attorneys signed it, but the government did not. It submitted the agreement to Main Justice for approval, but the Attorney General rejected it. Fell wanted to enter the proposed agreement into evidence, but the district court would not let it in. Instead, it permitted him to admit a stipulation that provided that he had unsuccessfully offered to plead guilty in exchange for a life sentence.

In summation, Fell argued that this stipulation showed that he had accepted responsibility, while the government argued, in rebuttal, and with no objection, that it did not. The government argued that Fell only offered to plead because he knew the evidence against him was overwhelming. The prosecutor also argued that the government had rejected the offer because it wanted a jury to decide the penalty, that Fell’s plea of not guilty forced the government to try him, and that Fell could still have pled guilty if he wanted to.

On appeal, the court upheld the exclusion of the plea agreement itself, describing the ruling as within the court’s “traditional authority” to exclude evidence of marginal relevance.

It was more troubled by the prosecutor’s rebuttal comments, but found no plain error. First, it found the record “virtually conclusive” that the jury understood that Fell was willing to plead guilty. Thus, the rebuttal did not open the door to the admission of the plea agreement itself.

The court separately analyzed the government’s arguments that, as a result of Fell’s pleading not guilty, the government had to try him, and that he could have pled guilty if he wanted to. The court began by warning that prosecutors are not supposed to make comments that “trench[] on the defendant’s constitutional rights and privileges.” Nevertheless, in a page surely copied right out of the government’s brief, the court characterized the government’s comments as simply an effort to place Fell’s use of the stipulation “in context,” and hence as a “reasonable” response to Fell’s own arguments.

Fell next claimed that the government, in its summation, improperly argued that the jury should reject mitigating evidence - in particular, that relating to Fell’s horrendous childhood - that did not relate to the crime itself. Although, in a footnote, panel revealed some disagreement as to whether the comments were even improper, the court in any event found no plain error. The district court’s instructions made clear that the jury must consider all of the mitigating information, that the arguments of counsel were not evidence, and that if those arguments differed from the court’s instructions the instructions controlled. Here, moreover, the verdict form indicated that the jury credited the mitigating evidence relating to Fell’s background and childhood.

The court also considered - and rejected - several other highly fact-specific evidentiary claims, most of which were not objected to below, and a claim regarding their cumulative impact: (1) the timing of a hearing on some expert testimony; (2) evidence concerning Fell’s apparent religious beliefs which, although troubling, was proper in “context” and not prejudicial; (3) out-of-court statements of his mother indicating that she was afraid of him - an “excited utterance”; and (4) Fell’s own out-of-court statements indicating a willingness to commit multiple murders and his desire to kill his mother, offered to rebut Fell’s claims regarding background.

Aggravating Factors

The court next held that three of the non-statutory aggravating factors, all of which related to Fell’s participation in the carjacking victim’s death, did not improperly overlap, even though they were supported by the same evidence.

The Indictment

The court rejected Fell’s argument that the indictment was defective because it did not allege the non-statutory aggravating factors. The court disagreed, holding that only those factors that comprise death eligibility - intent and statutory aggravators - need be alleged in the indictment.


Tuesday, July 08, 2008


United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” - an apartment used solely for the purpose of selling drugs - when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the sentencing suidelines, an issue that, surprisingly, the court had never before addressed in a precedential opinion. It did so here, however, and affirmed.

The court joined eight other circuits to conclude that where the sentencing court finds by a preponderance of the evidence that seized currency is the proceeds of drug trafficking, it may “consider the market price for the drugs in which the defendant trafficked in determining the drug quantity represented by that currency.” Here, there was no error in the district court’s findings that: (1) Jones possessed the money; (2) the money was drug money, and (3) that, based on the price an informant had recently paid for crack from that same apartment, the $883 would have purchased about twenty-five grams.

Kimbrough to the Rescue

The court also held, however, that the district court committed a procedural error by apparently treating the guidelines for crack cocaine as presumptively reasonable, without recognizing its discretion to reject the notorious 100 to one ratio. Although the record was somewhat ambiguous, and the sentencing occurred before Rita, Gall and Kimbrough were decided, the court of appeals gave Jones the benefit of the doubt, and vacated the sentence.


This is a great decision, filled with unusually strong language about the sentencing court’s discretion in general and the crack cocaine guidelines in particular. Put it on your summer reading list!

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