Thursday, October 30, 2008

The Fugitive

United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)

While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer’s permission to go to Israel for two weeks to attend his brother’s funeral. While there, he was arrested and was told to remain in the country. Citing this and a lack of funds, Zedner did not return to the United States. The government then moved to dismiss the appeal; a sharply divided panel invoked the fugitive disentitlement doctrine and dismissed the case with prejudice.


Zedner’s was surely the longest-running criminal case in this circuit. The offense involved his trying to negotiate multi-million dollar “bonds” that were riddled with misspellings and that were purportedly issued by the “Ministry of Finance of U.S.A.” The case itself began in 1996, when he was indicted for attempted bank fraud. After prolonged competency proceedings and multiple appeals, a jury convicted him in 2003. More appeals followed, culminating in a Supreme Court victory, which resulted in a 2006 retrial. He was convicted again and, having fully served the sentence imposed in 2003, was sentenced to time served and supervised release.

On this appeal, he raised several substantial issues, the most pertinent being that the district court lacked jurisdiction to retry him, because it did so before the circuit had issued the mandate.

The Majority’s Decision

As noted above, while the appeal was pending, Zedner went to Israel and did not return, citing various factors beyond his control. He insisted that he was willing to come back once he was able. Nevertheless, the majority declared him a fugitive, rejecting the argument that his absence was not willful. To the majority, his traveling to Israel without the means to return rendered the absence willful. In addition, his arrest in Israel occurred after he was supposed to return to the United States, thus he “did not shed his fugitive status by being accused of new criminal conduct that led to foreign governmental restrictions more than three months after the deadline for his return.”

The opinion has an unusually detailed discussion of the disentitlement doctrine itself, culminating in a summary of the justifications for dismissing a fugitive’s criminal appeal: “1) assuring the enforceability of any decision that may be rendered against the fugitive; 2) imposing a penalty for flouting the judicial process; 3) discouraging flights from justice and promoting the efficient operation of the courts; and 4) avoiding prejudice to the other side caused by the defendant’s escape.”

The majority found that “each of” these justifications warranted dismissal of the appeal here. Worse still, it dismissed the case with prejudice, and did so with very little analysis, just a passing mention that “the goals of punishment and deterrence generally warrant a dismissal with prejudice” because anything else would “dilute the sanction.”

The Dissent

Judge Pooler, in dissent, strongly disagreed. She viewed the complex jurisdictional issues here as “dispositive,” and noted that, in her view, Zedner was right: the judgment of conviction against him was “a nullity,” as was the notice of appeal, which was also filed before the mandate issued. Accordingly, both Zedner’s appeal and the government’s motion to dismiss it were moot, because, in Judge Pooler’s view, jurisdiction of the case has been exclusively in the district court since the mandate came down: “we are obligated to correct that error, and accordingly, we are not permitted to reach the merits either of Zedner’s appeal or the government’s motion to dismiss.”

Even if the appeal could be heard, however, Judge Pooler was “deeply troubled” by the majority’s discretionary decision to invoke the fugitive disentitlement doctrine, citing Zedner’s history of mental illness and the unusual circumstances that prevented him from returning to the United States. She further characterized the “profoundly troubl[ing]” decision to dismiss with prejudice as “ungenerous,” noting that “Zedner has had a long and tortured history with our judicial system. I can think of no worse ending to this matter than what the majority has unreasonably decided to do.”


Sunday, October 26, 2008

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.


Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for dismissal under the Speedy Trial Act (the “STA”). Oberoi pled guilty to one count of mail fraud and one false statement count (the government agreed to dismiss the remaining 155 counts) on the day the trial was set to begin, having reserved the right to appeal the speedy trial issue. He was sentenced to 63 months’ imprisonment, which he has fully served. As the circuit noted, he filed more than a dozen motions in the court of appeals that “delayed the assignment of his appeal to a panel for nearly four years.”

Pre-Indictment Delay

Fifty-eight days passed between October 18, 1999, when Oberoi was charged in the complaint, and December 16, 1999, when he was indicted. He argued that this violated the 30-day time limit for the government to seek an indictment.

The STA provides that an indictment or information “shall be filed within thirty days from the day on which such individual was arrested ... [on] such charges.” In Oberoi’s case, 17 days after his arrest on the complaint, a magistrate judge granted the parties' joint request for an adjournment to December 1, 1999, but did not mention the STA. On December 1, 1999, the parties requested two more weeks, but this time the magistrate solicited the parties’ consent to excluding time. Fifteen days later, Oberoi was indicted.

The court found no pre-indictment STA violation. The STA requires dismissal only of “such charge” against the defendant “contained in such complaint,” language that the court reads “strictly.” Thus, an indictment is not untimely if it pleads different charges from those in the complaint, even if the indictment’s charges “arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint.” The test is an elements test, similar to the familiar Blockburger double jeopardy test.

Here, the court held that the indictment charged something different from the complaint. The complaint charged Oberoi with healthcare and mail fraud from December 1992 to February 1999. But one of the counts in the indictment that he pled to was a false statement charge that was “fresh” to the indictment. While he also pled guilty to mail fraud, the count he pled to was quite specific: submitting a fraudulent claim to a particular employer’s dental plan on December 24, 1995. The complaint made no reference to that particular mailing, nor did the affidavit attached to it, which listed scores of mailings.

The court noted that it need not here “define what features would make two charges the same for the purposes” of the [STA]; it is enough that, here, the specific offenses to which Oberoi pled guilty did not appear in the complaint. Thus, neither count of conviction should have been dismissed under the STA as a result of pre-indictment delay.

Post-Indictment Delay

Oberoi also pointed out “28 discreet periods of post-indictment delay,” spanning “1,487 days” that he claimed were not “properly excluded under the STA. Before even getting to those periods, however, the court was called upon to resolve two questions that were open in this circuit.

1. Does the Clock Stop for Motion Preparation?

There is a “substantial question” as to the propriety of excluding time for preparing motions. Section 3161(h)(1)(F) of the STA stops the clock for “delay resulting ... from the filing of [a pretrial] motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Much of the delay here was occurred as “various defense lawyers prepared to file pretrial motions.”

The problem is that this section is not clear as to whether the time for preparing the motions is excluded, or whether the clock stops only once the motion has been filed. According to the circuit, there is “consensus among the circuits” that motion preparation time can be excluded under the general “interests of justice” provisions of the STA - § 3161(h)(8)(A), as long as the judge makes a contemporaneous prospective finding that the exclusion is warranted.

But here, the exclusions were made under the motions section - (h)(1) - not under section (h)(8), and there is a split among the circuits as to whether motion preparation is covered under section (h)(1). The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have held that delay attributable to motion preparation can be excluded under section (h)(1). The Fourth and Sixth, however, take the opposite view.

Here, the Second Circuit joined the majority, holding “that the time needed for the preparation of pretrial motions can be excluded under § 3161(h)(1).” Since this section automatically stops the clock for the preparation of response papers, it make sense that it would also exclude the time for the preparation of the motion itself. However, there is one “critical” caveat. The lower court “must expressly stop the speedy trial clock, either on the record or in a written order.”

2. The Effect of a Magistrate Judge’s Report and Recommendation

Other “close questions” exist with respect to the filling of a report and recommendation by a magistrate judge. Such filings in this case caused delays that Oberoi argued should be counted on the STA clock.

Section (h)(1)(F) automatically stops the clock when the motion is first filed; once it is fully briefed, subsection (h)(1)(J) automatically stops the clock for up to 30 additional days while the motion is under advisement. When a motion is fully submitted to a magistrate judge is the clock stopped under § (h)(1)(J) while the motion is “under advisement” of the magistrate judge? And what happens when magistrate judge issues a report and recommendation - does this “effectively refile[]” the motion in the district court, stopping the clock again, or does it restart the clock until a party files an objection?

Once again, these questions, open in the Second Circuit, have been answered differently by other circuits. After surveying the cases, the court went along with the Eighth Circuit, which has held that once a pretrial motion has been fully briefed and submitted to a magistrate judge, subsection (h)(1)(J) gives the magistrate a 30-day “advisement” period within which to rule. Once the report and recommendation issues, a new excludable period begins under § (h)(1)(F).

3. Oberoi’s Periods of Delay

Based on these holdings, the opinion surveys Oberoi’s claimed periods of delay in great detail, and makes for fairly dull reading. But the bottom line is that the court found only 57 days could be counted on Oberoi’s speedy trial clock, fewer than the 70 days that the Act permits.


A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.


Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be able to sell the violin as well.

In later conversations, Potocki said that the appraiser needed to see the violin itself, not just a photograph, because there are “many fakes.” In their final conversation, Potocki pressed Sprysak to bring the violin to him quickly. Nothing ever happened, and they never spoke about the violin again.

Unbeknownst to Potocki, Sprysak began looking into selling the violin through two other people, one of whom was an informant. In early 2006, the Sprysak and his new conspirators brought the violin from New Jersey to Manhattan to meet with an appraiser, who was actually and undercover detective. It was ultimately determined to be counterfeit, worth no more than one thousand dollars.


The court first held that the government failed to prove beyond a reasonable doubt that Potocki believed that the violin was worth at least five thousand dollars, a requirement of the statute, 18 U.S.C. § 2315. The conversations between Potocki and Sprysak only showed that Potocki “anxiously entertained the possibility” that the violin might be valuable, even as he noted that there were many counterfeit Strads. He never expressed a belief that the violin was both genuine and valuable; rather, he merely hoped that these would both be true. Potocki’s “serious questions” about the “provenance and value of the violin” meant that the government “failed to prove beyond a reasonable doubt Potocki’s belief that the instrument was worth at least five thousand dollars.”

The government also failed to prove the interstate commerce element of § 2315, which requires that the stolen goods must have “crossed a State or United States boundary after being stolen.” Here, the government attempted to satisfy this element by showing that the instrument had been brought from New Jersey to New York for the 2006 meeting. But there was no evidence that Potocki knew that the meeting occurred, let alone its background, participants or purpose.

Thus, there was no evidence that Potocki’s discussions with Sprysak months earlier were part of a broader “collective venture” to help Sprysak sell the violin in 2006. Rather, Sprysak abandoned the possibility of working with Potocki and “sought out other avenues to achieve a sale.” Thus, this was not a “classic conspiracy” - an “overarching illegal enterprise with multiple members and sustained, organized objectives.”


Judge Calabresi wrote a short opinion, concurring dubitante - which means, roughly, “doubting the correctness of the decision.” He felt that the evidence might reasonably show that Potocki attributed a value of more than $5000 to the violin since, “[e]ven if Potocki held only a 1 in 100 hope that the violin was a Stradivarius (which he told Sprysak, could fetch 1.5 million dollars), the expected value to him would still be $15,000, well above the $5000 required by the statute.” Since the government did not advocate this approach, however, the court was not really wrong to reject it, although he found the matter “a tad puzzling.”

Puzzling to this commentator is Judge Calabresi’s agreement with the majority - and the majority’s view itself - on the interstate commerce element. Here, the evidence was clear that when Sprysak first approached Potocki he told him that the violin had been brought from Europe and was stolen. Potocki must therefore have believed that the violin was stolen in Europe, then brought to the United States from there. This belief would seem to clearly satisfy the statute.

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The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.


Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” - defendant Ogando - on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone - Gomez had been given that number by his handlers - a business card that mentioned Brussels and noted what Gomez would be wearing, and other papers with the names and telephone numbers of other conspirators, some of whom Ogando was related to. In a post-arrest statement, Ogando told the agents that he was at the airport because a friend named Alex - another co-conspirator - had asked him to pick up someone at the airport. He falsely declared that he did not know Alex’ last name, and also said that he did not know any of the other conspirators and did not know why their names and numbers were found in his car.

Other evidence showed that Ogando had been in the Philadelphia area when one of the conspirators was arrested there, and that after that arrest, Ogando made several calls to others associated with the scheme.

The Circuit’s Ruling

The court began by noting that, to prove conspiracy or aiding and abetting, the government must show more than “evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” All of the counts of which Ogando was convicted required a showing of specific intent - that he “consciously assisted the commission of the specific crime in some active way.”

Where the alleged conspirator is a driver, there must be more evidence than a co-conspirator’s testimony that he was to meet the driver at the airport and the driver’s actual presence there. Simply “waiting for someone qt an airport, even under ... suspicious circumstances ... is not by itself an act from which knowing guilty involvement can be reasonably inferred.” Here, the court held, that was all, in essence, the government proved.

Nothing about Ogando’s presence was in any way out of the ordinary for a livery cab driver meeting a passenger at the airport. And his personal relationship with some of the conspirators simply explained why they hired him as a driver, rather than someone else. It did not show that he “knew the nature of the conspirators’ business.” Thus, this evidence was probative of the co-conspirators’ state of mind, but not Ogando’s. Moreover, the evidence that Ogando was in Philadelphia when another participant was arrested indicated that Ogando was there to pick him up, but still did not prove that he knew the nature of the conspiracy. It simply showed that “Ogando was a livery cab driver regularly used by members of this conspiracy.”

Finally, Ogando’s false exculpatory statements on arrest could not fill the void. Although circumstantial evidence of a consciousness of guilt, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the government’s theory of guilt.”


This is a great victory for Ogando. Sadly, he had completed his 30-month sentence by the time he won his appeal. Indeed, this case seems to have taken an unusually long time to get to this point - the conduct occurred in 2002, the appeal has a 2005 docket number, but was not heard until 2008. The opinion contains no explanation for the delay.

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Buyer's Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government's appeal, the circuit reversed.


In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers were looking for drugs; they agreed on a quantity, 3.5 grams, and the sale was completed. Five days later, Hawkins purchased 7 more grams from Luna. Six days after that, Hawkins called Luna and asked him to sell him 3.5 grams on credit. Hawkins said he would sell the drugs to the customer and immediately repay the debt. This sale did not take place.

One co-conspirator testified that Hawkins was an addict who bought drugs, but was neither a drug dealer nor a member of the Luna organization. This witness characterized Hawkins as a “go-between.”

The Circuit’s Decision

The court began its analysis with a discussion of the “buyer-seller rule,” under which a mere buyer-seller relationship “is insufficient to establish a conspiracy” because there is no agreement to “advance any joint interest.” However, while the existence of buyer-seller relationship alone does not establish a conspiracy, if there is additional evidence showing an agreement to join together and accomplish an objective beyond the sale transaction, the evidence can support a finding that the parties participated in a conspiracy. Some of the factors that should be considered on this question are the length of the parties’ affiliation, the level of mutual trust, standardized dealings, sales on credit, and the quantities involved. However, even evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller’s distribution conspiracy, because more is required than “mere knowledge of the purpose of the conspiracy.”

Here, however, it was clear that (1) the Luna conspiracy existed, (2) Hawkins knew about it, (3) purchased drugs from it, (4) intended to resell at least some of the drugs, and (5) Luna knew this. The court found that these last two factors constituted sufficient evidence that Hawkins participated in Luna’s conspiracy by entering into a distribution agreement with Luna himself that “afforded Hawkins a source of cocaine and Luna another outlet - albeit small - for his contraband.” Moreover, the evidence supported an inference that Hawkins was “not freelancing;” but rather that he “agreed to engage in this conduct with Luna on an ongoing basis” and that “Hawkins and Luna trusted each other to work together as supplier and street-level dealer.”

Hawkins purchased drugs, or sought to, from Luna on several occasions within a short time. He brought potential customers to Luna’s attention, made arrangements with Luna to obtain cocaine for resale, and used the cellphone number that Luna had given him. There was also a level of mutual trust - Hawkins indicated that he preferred Luna over other local dealers and Luna agreed, at least in principle, to extend credit to Hawkins. This conduct established sufficiently that Hawkins was more than a mere “go-between.”

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Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”

Courts have struggled to define “lascivious,” which is “not self-defining.” Here, the district court relied on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in which the district court cited six factors that should be considered in addition to any others relevant to the particular case: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

In its charge here, the district court gave a general definition of “lascivious exhibition,” noting that “[n]ot every exposure of the genitals or pubic area constitutes a lascivious exhibition.” It then told the jury to consider the Dost factors.

The court of appeals affirmed this charge. It noted that Dost has “provoked misgivings,” although most of those misgivings have pointed out that the Dost factors are over-generous to the defendant. Here, the court addressed the fifth and sixth factors in particular. As for the fifth factor, many courts have noted that the focus should not be on the characteristics of the child photographed but of the exhibition that the photographer sets up. The sixth factor has been criticized as the most confusing, because it shifts the focus from the photograph to the viewer.

Here, the court held that “[n]otwithstadning” these valid criticisms about Dost, there was no error in the charge. Jurors need “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” The Dost factors are not definitional, and do not purport to be. Rather, they are factors to consider in a particular case that are not “mandatory, formulaic or exclusive” and serve to “mitigate the risk that jurors will react to raw images in a visceral way, rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room.” They therefore “impose useful discipline on the jury’s deliberations,” albeit “imperfectly.” Thus, is it “no error” for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case.

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Saturday, October 25, 2008

Slight Change

United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)

Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed. A divided appellate panel reversed. It also, however, unanimously wrought an important change in conspiracy law: an elimination of the so-called "slight evidence" rule.


On November 5, 2004, two of Huezo’s co-conspirators drove from Connecticut to New York in a Jeep registered to Heuzo to discuss delivering $1 million to an undercover agent, who was posing as a money launderer. Three days later, Huezo drove one of them back to New York, opened the trunk from the driver’s seat, and the agent recovered a bag containing half of the money. It was packaged in bundles, as is typical for money laundering transactions. The two men returned to a house Connecticut, picked up the third co-conspirator, and went out to dinner.

Two days later, Huezo left the house carrying a small back bag that he put in the Jeep. He then left the Jeep and watched as one of his associates put a black suitcase in the back. They drove to New York, but en route, they were pulled over for speeding. The Jeep was registered in Huezo’s name at the address in Connecticut, although the registration was not yet on file, which suggested that it was newly registered. The car was impounded and, during an inventory search, officers discovered $500,000 in the black suitcase and $6000 in Huezo’s own bag.

Further investigation revealed that the three men had traveled from California to Connecticut a few days before the deliveries.

The Majority’s View

Huezo was convicted of “transaction” money laundering, under which the government was required to prove that he knew that “the purpose or intended aim of the transaction was to conceal or disguise a specified attribute of the funds.” This same intent must be proven for aiding-and-abetting and conspiracy. Here, the majority held that there was sufficient evidence for a rational jury to conclude that Huezo had the requisite criminal knowledge and intent.

First, the court noted that there was ample evidence that the money involved in the two deliveries constituted the proceeds of criminal activity - drug trafficking, specifically - and that those deliveries were transactions designed to conceal the nature of the money.

It also concluded that there was sufficient evidence to connect Huezo to the conspiracy and establish both that he knew the conspiracy’s goals and shared his co-conspirator’s specific intent. The evidence here “went well beyond mere presence or association.”

First, while there was no direct evidence that Huezo “saw or knew what was in any of the bags,” there was sufficient circumstantial evidence. His “special treatment” of the small bag was evidence that the $6000 “constituted payment” for his efforts, and the $6000 was packaged in the same way as the rest of the laundered funds. Moreover, Huezo resided in the same house as the co-conspirators, which was also where the money was kept. From this, a jury could “reasonably infer that Huezo had the requisite knowledge and specific intent” to commit money laundering.

In addition, jurors relying “on their common sense and experience in drawing inferences” could reasonably conclude that “the principals in the conspiracy would not have trusted an outsider (with no knowledge of their criminal purpose) to transport $1 million in laundered funds,” to be present when the funds were delivered, and to share their house for several days.

Finally, the court viewed the evidence of the three conspirators' joint travel as further supporting a finding of guilt. It led to a “reasonable inference that the three men traveled from California to Connecticut and met for the express purpose of facilitating the money laundering conspiracy,” and thus that Huezo participated in it by design and not simply by happenstance.”

The Dissent

Judge Sotomayor dissented. In her view there was insufficient evidence that Huezo had either the requisite knowledge or the specific intent to launder. Rather, the evidence only “weakly” supported a view that Huezo “may have known” that the suitcases contained money and that the money was the proceeds of criminal activity, but there was not enough evidence that he knew the purpose of the transactions; that is, that the money was to be laundered.

The “Slight Evidence” Rule

There was one thing, however, that united all three judges, and indeed, the entire court, since the opinion was circulated to all of its judges: a rejection of formulation - invoked by the government here - that, once a conspiracy has been established,” the evidence necessary to link a defendant to it “need not be overwhelming,” or need only be “slight.” This opinion conclusively holds that these “formulations do not accurately describe the government’s burden of proof in conspiracy cases, and the use of [them] should be discontinued.”

Indeed, in his concurrence, Judge Newman, does a terrific job of debunking this language, tracing it back to its origins in a 1930 Fifth Circuit case, where it appeared “without any citation,” then noting that the Fifth Circuit itself found the use of the “slight evidence” formulation in a jury charge to be structural error - that is, one for which no harmless error analysis is required - in 1977.

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Sunday, October 19, 2008

Bonnano Republic

United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)

Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.

1. Mobsters are Always “Guilty as Charged”

During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty of.” The cooperator said that he did not.

On appeal, DeFilippo characterized this as improper opinion testimony. The circuit agreed, finding that the questioning seemed “designed to prompt the witness to declare that anyone linked to organized crime who is charged with a crime is in fact guilty of that crime.” This had nothing to do with DeFilippo, “did not address issues relating to” his guilt, and hence was error.

However, the court held that the error was harmless. There was substantial other evidence of DeFiloppo’s guilt, and the prosecutor did not emphasize the improper testimony in its arguments to the jury.

2. “Killing the Kids”

When cross-examining the cooperator, defense counsel attempted to show that the witness could not recall any of his recorded conversations except for the two that he testified about on direct-examination, in an effort to show that he had been coached. To rebut this, the prosecutor elicited the cooperator’s recollection that, in one conversation, other Bonnano family members discussed killing the children of anyone who cooperated against the family.

The court of appeals held that this testimony was relevant to rebut the defendant’s argument, but was “troubl[ing]” under Rule 403. The statement was “highly inflammatory” and went far beyond establishing the witness’ ability to remember other recorded conversations. Moreover, his credibility could have been rehabilitated with “any one of a number of ‘evidentiary alternatives.’” The appellate court even went so far as to conclude that the government selected this particular memory precisely for its “unfairly prejudicial” effect.

Nonetheless, it found no abuse of discretion, since the district court engaged in the proper Rule 403 balancing, and did not act arbitrarily or irrationally.

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United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)

Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned. On appeal, he argued that his statements to the federal agents were obtained in violation of his Sixth Amendment right to counsel.

The circuit disagreed. Because Worjloh was not subject to federal charges when the feds questioned him, “no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct.” The Sixth Amendment rights related to the state offenses did not “serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state’s conduct.” It might be different if the federal prosecutors had sought to admit evidence obtained by state authorities in violation of the Sixth Amendment, but here, “there is no suggestion that Worjloh’s case was simply handed off from one sovereign to another.”


Unlucky Strike

United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)

Matthews challenged his life sentence under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), on several grounds. The circuit affirmed.

One “three-strikes” provision requires the defendant to establish that his prior convictions were not “serious violent felonies,” as defined by the statute. The court joined eight other circuits in upholding the constitutionality of this allocation. “Where no fundamental right is at issue, there is no doubt that the legislature may assign to defendants burdens of proof with regard to affirmative defenses.”

Matthews also argued that the burden itself - of producing clear and convincing evidence - violates due process. The court noted that four circuits had found that this standard did not violate due process, but did not resolve the issue here. Matthews could not show, even by a preponderance of the evidence, that his past convictions were not serious violent felonies.


Materia Girls

United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)

Defendant Ojeikere was convicted of participating in an “advance fee” scheme the tricked its victims into sending money to the defendant and his confederates to release “large sums of money supposedly held in Nigeria.”

On appeal, he challenged the restitution order, which was nearly $700,000. He claimed that his “victims,” although they suffered losses, had hands too dirty to claim restitution, since they all participated in what they believed was a fraudulent scheme to obtain money from Nigeria. The court agreed with Ojeikere in principle only - restitution is not appropriate where the victims are, in effect, co-conspirators.

But restitution “may not be denied simply because the victim had greedy or dishonest motives.” It should only be denied where the victims’ intentions were in pari materia with those of the defendant. Because Ojeikere did not demonstrate that his victims lost ill-gotten gains “or that they were in pari materia with” his scheme, restitution was appropriate.


Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.


The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.

The court began with an interesting survey of the development of the so-called “officer expert,” in the 1980s, and of the court’s generally favorable response to this type of testimony. The court pointed out, however, that such testimony “must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” As an officer’s “purported expertise narrows from ‘organized crime’ to ‘this particular gang’ ... to the criminality of the defendant,” it becomes “a little too convenient” that the government “has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict - even more so when that expert happens to be one of the Government’s own investigators.”

Here, the agent strayed from his proper expert function in several ways. First, much of his testimony concerned material “well within the grasp of the average juror,” such as the fact that the task force had seized guns and ammunition from MS-13 members, and that MS-13 members had committed drug crimes and murders. The circuit noted that no expertise was required to understand any of those facts: lay testimony, arrest records, death certificates and “other competent evidence of these highly specific facts” was available and would readily have been understood by the jury. Similarly, the officer’s testimony about gang members’ travel patterns and the gang’s operations more generally, “went far beyond interpreting jargon or coded messages ... or explaining organizational hierarchy.” The court was particularly concerned about the officer’s testimony that MS-13 had committed “between eighteen and twenty-three murders since 2000.”

The court also condemned the officer’s improper use of hearsay. While an expert can rely on certain types of hearsay, he “may not, however, simply transmit that hearsay to the jury.” Here, the officer identified hearsay as the source of much of his information, and “at least some of his testimony involved merely repeating information he had read or heard.” Thus, he was not acting as an expert, “but instead as a case agent.” For similar reasons, the testimony violated Crawford by communicating the testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.

Finally, the court concluded that the error was not harmless. The testimony was relevant to several contested issues, including whether the gang (1) was an enterprise, (2) affected commerce, (3) engaged in narcotics trafficking, and (4) engaged in acts of violence. The court accordingly vacated the convictions and remanded the case to the district court for a new trial.

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Summary Summary

A few more summary orders of interest from earlier this month:

In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a "review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of" the defendant and his co-defendant.

In United States v. Mercardo, No. 07-3327-cr (2d Cir. October 7, 2008), the defendant in a drug case argued that he was prejudiced by testimony of an agent who explained that he investigated "violent crimes associated with narcotics use." The court "caution[ed]" the government about "unnecessarily eliciting testimony about agents' responsibilities not relevant to the charged crime," but found the error to be harmless. In addition, the court granted a Regalado remand, even though the defendant was sentenced as a career offender, since it was unclear whether the district court fully understood its departure authority.

Monday, October 06, 2008

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.


This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish - for money - information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a mosque, but who also ran a bakery and a school. Al-Anssi claimed that Al-Moayad supported terrorist groups. Defendant Zayed was Al-Moyad’s assistant. Although Al-Anssi demanded millions of dollars for his work, in all he was paid only about $100,000, and, in 2004, he set himself on fire outside the White House to publicize his claim that he was entitled to more money.

The FBI sent Al-Anssi to Yemen several times in 2002; the plan was to have Al-Anssi introduce the defendants to another informant, “Saeed,” who was posing as a wealthy American who wanted to donate money to support terrorist activities. Also, in September of 2002, Al-Anssi attended and videotaped a wedding hosted by Al-Moayad. At the wedding, a representative of Hamas made a speech proclaiming that, thanks to Hamas, there would be a terrorist attack in Tel Aviv that same day. And, indeed, there was - a suicide bombing on a bus.

In 2003, Al-Anssi set up a sting operation in Germany. He introduced the two defendants to Saeed, and they discussed Saeed’s anticipated donation to their causes. The defendants were arrested after a final meeting in Germany.

The Trial Errors

1. Improper Testimony

At trial, the government called Gideon Black as its final witness. He was on the Tel Aviv bus that Hamas bombed, as mentioned in the wedding speech. The district court overruled the defendant’s motions to preclude Black’s testimony and to instead allow them to stipulate that they knew that Hamas was engaged in terrorist activities. The court also permitted the government to introduce, through Black, graphic photographs and a DVD depicting the event. Moreover, the court permitted Black to testify about the horrible aftermath of bombing, not just the bombing itself, also over objection.

On appeal, the court held that the district court’s Rule 403 balancing with respect to this evidence was so skewed as to be “arbitrary.” Worse still, the district court refused to give a meaningful limiting instruction. In fact, the evidence was largely irrelevant. The defendants were not charged with any offense in connection with the Tel Aviv bus bombing. Moreover, the evidence was not necessary to show that the defendants knew that Hamas was involved in violence, because the defendants never denied knowing this. Finally, even if it were proper to admit evidence that the bombing occurred, evidence of the bombing’s aftermath was even less probative at trial and far more prejudicial.

Judge Johnson permitted other improper testimony, as well. During the government’s rebuttal case, the judge had admitted into evidence a document that purported to be an application form for a terrorist training camp. The form had been partially filled out by someone named Abu Jihad, and listed defendant Al-Moayad as his sponsor. The judge then permitted the government to call someone named Goba - who had attended the training camp - as a witness. Although the government proffered that Goba would only testify only about the form itself, in it elicited testimony that went far beyond the scope of the proffer.

Goba testified about his experiences in the training camp, including visits to the camp from Osama Bin Laden, and described speeches that Bin Laden made. In addition, during Goba’s tesitmony the government introduced an Al Jazeera news video documenting that visit.

The court of appeals again found error. First, the court noted that Judge Johnson failed to undertake a conscientious Rule 403 balancing at all, perhaps because of the government’s misleading proffer about what Goba would say. But it was clearly error to admit Goba’s testimony, particularly the parts relating to Bin Laden. This was “highly inflammatory and irrelevant and should not have been permitted.” There was, after all, no evidentiary connection between Goba the defendants.

Having held that the testimony of both Black and Goba was error, the appellate court went on to hold that error was not harmless as to the issue of the defendants’ predisposition, which went to the heart of their entrapment defense. Here, while there was some evidence of predisposition, it was not overwhelming, and much of the government’s proof on that issue was inadmissible for other reasons. Moreover, the government’s conduct with respect to Black’s and Goba’s testimony magnified the prejudicial effect. For each witness, the government repeatedly elicited testimony that was well beyond the scope of its proffer.

2. Al-Anssi’s Notes

While in Yemen, Al-Anssi took notes of his meetings with Al-Moyad and Zayed. During its examination of Al-Anssi, the government introduced those notes as substantive evidence, without any limitation. This, too, was error.

First, the notes were not properly admitted as prior consistent statements, because they were made after Al-Anssi’s motive to fabricate - his expectation that he would be paid large amounts of money by the FBI - had already arisen. Nor was the evidence admissible to rehabilitate Al-Anssi’s credibility.

Finally, the notes were inadmissible to rebut any supposed false impression created during the defendants’ examinations of Al-Anssi. It is true that redirect examination can be used for this purpose, but “otherwise inadmissible evidence can be used to rebut a false impression only if the evidence is carefully limited.” Generally, in such situations, the district court must admit the evidence for a clearly defined, limited purpose, and not for its truth. Here, by contrast, Judge Johnson admitted the notes in their entirety, for their truth, and without any limitation.

The erroneous admission of Al-Anssi’s notes was not harmless, given its effect on the defendants’ entrapment defense. Several assertions in the improperly admitted notes that were critical to the government’s predisposition case were not duplicated anywhere else. The notes were also seriously prejudicial for other reasons. They were the only evidence that Al-Moayad had a relationship with Bin Laden after the 1980's, a critical point at trial, and also suggested Al-Moayad had given material support to Hamas.

3. Improper Admission Other Evidence

The court held that the admission of other evidence, without limitation, was error.

First, the form showing that Al-Moayad had sponsored an applicant to an Al-Qaeda training camp, discussed above, was inadmissible hearsay. The court of appeals rejected the government’s argument that the form was a co-conspirator’s declaration, since there was no evidence that Al-Moayad was in a conspiracy with the person who filled out the form.

Next, it was also error to admit the wedding speech, at least without limitation. The speech was not a co-conspirator statement, since there was no evidence that Al-Moayed was in a conspiracy with the speaker.

Third, the government admitted a will found in Croatia in which the testator indicated that he was willing to die as a martyr. This, the circuit held, was hearsay, but the government used it for its truth.

These three errors, together, contributed substantially to the unfairness of the trial.

4. Cumulative Impact

Finally, the court also agreed with the defendants that the collective impact of all of the district court’s errors rendered the trial fundamentally unfair.


This case has several noteworthy features. Most importantly, it clearly illustrates the importance of preserving evidentiary errors in the district court. Every error the court reversed on was objected to by the defense attorneys, and with great specificity. That was critical here, since it is highly unlikely that the court would have reversed here on plain error grounds.

Another noteworthy feature of this case is the unusually high degree of government misconduct, both at trial and on appeal. At trial, the government repeatedly took advantage of the fact that the judge was asleep at the wheel by introducing evidence that it must have have known was improper, and by repeatedly going beyond its own proffers as to the supposedly limited purpose of the evidence. On appeal, the misconduct took a different form. As least as they were described by the circuit itself, the government made numerous arguments on appeal that seem to have been wholly without basis in law or fact.

This case also introduces a new feature: the “concurrence by footnote.” Throughout the opinion, there are footnotes revealing that Judge Wesley took a position that differed from the views of the other two judges. But he did not write separately on those points, and did not quibble with the ultimate outcome.

Finally, it is noteworthy that the circuit sent this case back to a different judge with no analysis and with none of the usual qualifications that are intended to spare the district judge’s feelings.

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Sunday, October 05, 2008

Summary Summary

Submitted for your approval - another set of notable summary orders.

In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count. However, 18 U.S.C. § 924(c) authorizes only imprisonment, the section oes not mention a fine. The circuit noted that the 924(c) fine was thus “arguably invalid.” But “rather than explore and adjudicate the issue,” it simply struck the fine on that count.

In United States v. Lutz, No. 07-5188-cr (2d Cir. October 3, 2008), the court held that the defendant was not entitled to a Regalado remand where the district judge clearly indicated that “Kimbrough” would not “make any difference to me at this point ... I don’t think it would have an impact at all.”

United States v. Malenge, No. 07-2823-cr (2d Cir. September 29, 2008), deals with a host of important issues relating to the criminal prosecution of aliens seeking asylum in the United States. Malenge fled political violence in the Democratic Republic of the Congo. Hoping to join her husband, also a refugee, in Connecticut. She boarded an Amtrak train in Montreal and was arrested by immigration authorities when she tried to enter the United States with false documents. Without waiting for Malenge’s asylum claim to proceed, the Northern District USAO charged her with various false-document offenses. She unsuccessfully moved to dismiss the indictment in the district court.

On appeal, Malenge argued that her prosecution violated the United Nations Convention Relating to the Status of Refugees, which the United States is bound to comply with through a related U.N. Protocol. The court disagreed because that Protocol does not provide any judicially enforceable rights.

Worried that the prosecution would affect her right to seek asylum, Malenge also raised a due process claim. But the court found no evidence that the prosecution violated her procedural rights in the asylum proceeding, and noted that there is no legal basis for the appellate court to prevent her prosecution in order to protect her asylum claim.

Finally, she asked the court to order the USAO to await an asylum determination before proceeding against her, or any other refugee who enters the United States using false documents. The court held that it could not grant the request but found that it had “significant merit." Deferring prosecution would, “assuming [Malenge] is correct that her burden for seeking asylum has increased, prevent a felony conviction from unnecessarily prejudicing [her] claim for asylum [and] allow the Department of Justice to exercise its prosecutorial discretion after a full evaluation of an asylum seeker’s credibility.”

The court expressed dissatisfaction with the NDNY’s “blanket policy of immediately prosecuting asylum seekers for their use of false documents,” calling it “troubling, to say the least.” Malenge could have entered the country legally with a credible asylum claim, thus her immediate prosecution “penalizes her for her ignorance in contradiction of our government’s police of providing safe haven to refugees,” and “appears to place” the NDNY USAO “at odds with the Executive Branch as a whole, which has committed [by treaty] ... to avoid such penalties.”

The court concluded by indicating its “agree[ment]” with Malenge that her prosecution “is fundamentally inconsistent with the policies and obligations of the federal government with regard to the treatment of refugees” and with the district court’s “observation that Malenge’s use of false documents should not create a basis for denying her asylum application.”

Although the court was not reviewing the asylum claim itself, it noted that it would likely find an abuse of discretion if that claim were denied based on Malenge’s use of false documents as a means of fleeing persecution.