Wednesday, December 24, 2008

Dogged Determination

United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)

On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house. They found evidence suggesting that Hayes was a large-scale drug trafficker, so they suspended the search and made arrangements to obtain a search warrant. One of the officers, while waiting for the warrant, released a drug-sniffing dog, “Kilo,” from the car, where it had been confined for several hours. During a Frisbee came with the officer in Hayes’ front yard, the dog alerted. The officer encouraged the dog to continue investigating, and it ran around Hayes’ house, toward the back of a detached garage. From an area of thick brush, about sixty-five feet from the house, and near the border with a neighbor’s property, the dog retrieved a black bag. Without waiting for the warrant, the officer opened the bag and found about fourteen ounces of cocaine.

In the district court, Hayes unsuccessfully alleged that his Fourth Amendment rights had been violated. The circuit affirmed.

The Dog Sniff

Hayes first argued that Kilo’s sniff was a warrantless search of his property. The Second Circuit has held that a canine sniff outside the door of a private residence - unlike one at an airport or other public area - is a “search,” and thus subject to the constraints of the Fourth Amendment. Hayes argued that this rule should apply here, but the court disagreed. The contents of the black bag that Kilo detected were not inside his residence; they were outside, in the brush some sixty-five feet away. Hayes had no legitimate expectation of privacy in “the air in [his] front yard.”


In addition, the area where the bag was found was not part of the curtilage of Hayes’ home. The court held that Hayes did not have a reasonable expectation of privacy in the area, even assuming that Kilo passed through the curtilage en route to the black bag. “Such a transient trespass does not implicate the Fourth Amendment where the incriminating evidence is discovered outside the curtilage.”

The court then gave a detailed analysis of the curtilage question itself. This issue is governed by Fourth Amendment principles, not common law property factors, and there is a four-factor test: the proximity of the area to the main residence; any enclosure of the area; the use of the area; and steps taken to protect it from view. See United States v. Dunn, 480 U.S. 294, 300 (1987).

As to proximity, the sixty-five-foot distance between Hayes’ house and the brush area weighed against a proximity finding. While in some cases such a distance could satisfy the proximity factor, here the brush was a border and served as the fringe of Hayes’ property in relation to his home.

Hayes conceded that there was no enclosure, but argued that the nature of his property should exempt him from this requirement. The court disagreed because the purpose of the enclosure factor is to determine those areas the homeowner intended to keep private.

As for use, the only use Hayes made of the area was to hide the black bag. It was of no moment that Hayes expected that the area would be immune from police scrutiny. “A finding of curtilage cannot be supported absent evidence in the record that the area was designated and used for other intimate purposes that one might ordinarily conduct inside of one’s home.”

Finally, the court found that Hayes took no meaningful steps to shield the area in question from observation. There was no fence or other structure, and the general area was visible from the street.

The Opening of the Bag

The court also rejected the claim that the officer should have waited for the warrant before he opened the bag. Since there was no expectation of privacy in the “non-curtilage area” where the bag was recovered, there was likewise no expectation of privacy in the bag itself.

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Thursday, December 18, 2008

Summary Summary

There were some interesting summary orders this week.

In United States v. Romero, No. 06-1199-cr (2d Cir. December 18, 2008), the district court imposed a $10,000 fine, observing that the debt would make the defendant eligible for work in prison. That observation was incorrect, since a fine is not a prerequisite for obtaining prison employment. The circuit remanded so that the lower court can reconsider whether to impose a fine.

In United States v. McFadden, No. 07-3614-cr (2d Cir. December 17, 2008), the court did not enforce an appeal waiver in a plea agreement because, during the plea allocution, the court did not specifically flag the waiver, and even implied that McFadden had a limited right to appeal his sentence. As a result, the appellate court ordered a Crosby/Regalado remand.

In United States v. Sykes, No. 07-0505-cr (2d Cir. December 17, 2008), the court strongly suggested that a search of the defendant’s vehicle was outside the scope of a search warrant that authorized a search of his residence “including all storage areas and curtilage,” although it concluded that the admission of evidence recovered from the vehicle was harmless error. The court noted that deeming an area “curtilage” does not by itself authorize the search of a vehicle and would, in this case, have required further fact finding by the district court.

In United States v. Vargas, No. 08-0295-cr (2d Cir. December 17, 2008), the district court erroneously instructed the jury that it could presume an effect on interstate commerce if either illegal drugs or the proceeds of their sale was the object of a robbery, although the error was harmless.

Taking Stock

United States v. Elgindy, No. 06-4081-cr (2d Cir. December 17, 2008) (Sack, Katzmann, CJJ, Rakoff, DJ)

Defendants Elgindy and Royer were convicted of securities fraud-based racketeering counts, as well as related extortion charges relating to a complex stock manipulation scheme. On appeal they challenged, inter alia, venue and the district court’s jury instructions on the securities fraud counts. The circuit affirmed.

The Scheme

In 1998, Elgindy started Pacific Equity, a company that provided information for stock investors. It had a publicly available website that published negative information about publicly traded stocks, while a subscriber-only site profited from this information by advising its subscribers to short-sell those same stocks. In 2000, Elgindy began receiving misappropriated negative law enforcement information about certain stocks from Royer, who was then an FBI agent. Elgindy would pass on this information to his subscribers and instruct them to short the stock before he made the information public. Then he would release the information to the public through his other website, and instruct his subscribers to release it through other public means, so that they could profit from the resulting drop in the stock’s price. In addition, Elgindy himself traded on and profited from the misappropriated information. Eventually, Royer left the FBI and began working directly for Elgindy. He continued to provide misappropriated information, however, using other law enforcement officers as his sources.

The defendants also used this set-up to commit extortion. At one point, they learned that a company’s CEO had been convicted of a drug felony that had been expunged. Elgindy described the CEO as a “three time felon” on the subscriber web site, and told him that he would not leave him alone unless the CEO gave him a discounted block of stock.


The defendants challenged the sufficiency of the evidence of Eastern District venue. Since they were charged with multiple counts, venue had to be in a district where all of the counts could be tried. Here, that standard was satisfied.

The there was Eastern District venue on the securities fraud counts because seven of the subscribers to Elgindy’s private website were located in that district, Elgindy sent hundreds of email messages to those subscribers containing Royer’s misappropriated information, and trades in the affected stocks were made by other investors residing in the Eastern District. While there was no “direct evidence” that Elgindy’s Eastern District subscribers themselves traded on the information, that was “of no moment.” Venue need only be proved by a preponderance, and “the jury could reasonably infer that it was more likely than not that one or more of these subscribers traded in the applicable securities.” Moreover, it was reasonable for the jury to find that Elgindy’s subscribers followed his instructions to disseminate information, which impacted the purchase of those stocks by non-subscribers who lived in the Eastern District.

These activities satisfied the “substantial contacts” test, which looks at the “site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of the [venue] for accurate factfinding.”

These same Eastern District contacts also satisfied the racketeering and conspiracy counts.

As for the extortion counts, venue lay in the Eastern District for the similar reasons. Disseminating the fact that the CEO was a “three time felon” put downward pressure on the company’s stock, which in turn provided Elgindy with the ammunition to extort the CEO into giving stock Elgindy. Moreover, at least one of Elgindy’s Eastern District subscribers played an active role in those events.

The Securities Fraud Instructions

The defendants were convicted of securities fraud on two theories: that they unlawfully traded on material confidential information, and that they engaged in market manipulation.

For the first theory, they argued that the law enforcement information that Royer obtained was not “nonpublic,” since much of it was also publicly available. They claimed that it was error for the court to instruct the jury that “the fact that information may be found publicly if one knows where to look does not make the information ‘public’ for securities trading purposes unless it is readily available, broadly disseminated, or the like.”

The court found no error in this instruction. Borrowing from a Supreme Court case interpreting the Freedom of Information Act, it held that “[t]he law enforcement reports that Royer misappropriated were not themselves public in any practical sense, even if some of the sources from which they were compiled could be accessed by the public. Moreover, the manner in which law enforcement information was combined in the reports was itself nonpublic and helped inform its relevance for trading purposes.” The court did note, somewhat cryptically, however, that, “While the trial court’s instruction here given might not be universally appropriate, in the factual context of this case it correctly stated the relevant principles the jury needed to apply.”

As for market manipulation, the district court instructed the jury that the essence of the manipulation was “the deception of investors into believing that prices at which they purchase and sell securities are determined by the natural interplay of supply and demand,” and thus that “any conduct” that is “designed to deceive or defraud investors” by affecting the price of securities is prohibited. The defendants claimed that this was error because it permitted a conviction without a finding that the defendants “disseminated false information to the marketplace.”

But the relevant statute prohibits the use of “any manipulative or deceptive device or contrivance,” which the court held “extends to manipulation of all kinds, whether by making false statements or otherwise.” Here, the defendant “sought to artificially affect the prices of various securities by directing ... subscribers to trade and disclose the negative information at times and in manners orchestrated by the defendants that were dictated not by market forces, but by defendants’ desire to manipulate the market for their own benefit.” This conduct “squarely meets the ordinary meaning of ‘manipulation.’”

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Wednesday, December 17, 2008

Restoration Drama

United States v. Bullock, No. 07-3059-cr (2d Cir. December 17, 2008) (Jacobs, Minor, Sotomayor, CJJ)

Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition. He was subject to a fifteen-year mandatory minimum under the Armed Career Criminal Act (“ACCA”), and actually received a sentence of 188 months. On appeal, he argued principally that his prior convictions - three robberies - were not ACCA predicates because his civil rights had been restored. See 18 U.S.C. § 921(a)(20). Specifically, he noted that he had “been off parole for 11 years,” was “entitled to vote,” and that New York law did not restrict his right to possess ammunition.

The circuit disagreed. Restoration of civil rights has three components - the right to vote, the right to serve on a jury, and the right to hold elective office. The court agreed that Bullock’s rights to vote and hold office were “arguably” restored by operation of law under N.Y. Elect. Law § 5-106 and N.Y. Civ. Rights Law § 79. But, since Bullock was not pardoned and his prior convictions had not been “expunged,” he still did not have the right to serve on a jury in New York. Accordingly, the district court properly counted Bullock’s as ACCA predicates.

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Wednesday, December 10, 2008

Summary Summary

Here is the latest crop of summary orders of interest:

In United States v. Adelson, No. 06-2738-cr (2d Cir. December 9, 2008), a government appeal, the court affirmed a 42-month sentence, which was a substantial downward variance from the guidelines, which recommended life. Citing Cavera, the court noted that for "financial offenses" sentences "if adequately explained, should be reviewed especially deferentially."

In United States v. Cardenas, No, 06-5601-cr (2d Cir. December 9, 2008), the court remanded for an evidentiary hearing as to whether an “oral cooperation agreement” existed. The defendant alleged that there was, and there was not “overwhelming evidence to the contrary.” Moreover, the defendant’s allegations were not contradicted by any of his prior statements. Since the defendant made “sufficiently specific allegations under oath to raise issues of material fact as to the existence of the alleged oral agreement . . . the record was insufficient to deny the motion without inquiry.”

In United States v. Ballares, No. 07-5845-cr (2d Cir. December 8, 2008), the court held that the defendant waived his objections to a magistrate judge’s report and recommendation because he filed the objections out of time.

And, in United States v. Bennett, No. 06-2443-pr (2d Cir. December 3, 2008), on the appeal of the denial of a 2255 motion, the court remanded for further factfinding on whether defense counsel was ineffective by “overriding [the defendant’s] right to testify on his own behalf.”

Monday, December 08, 2008

Run-On Sentence

United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)

Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun. The guidelines recommended a minimum sentence of 60 years; 30 for the drugs plus 30 for the gun, and the district court sentenced him to 55 years.

Chavez had asked the court to shorten the sentence on the drug charge in light of the long sentence he faced for the gun, but the district court concluded that it could not lawfully do this. Rather, the court independently selected 25 years as the appropriate sentence for the drug conspiracy, then imposed the mandatory 30-year § 924(c) sentence.

On appeal, Chavez argued that the district court misunderstood its sentencing authority, but the circuit affirmed. It read § 924(c) as “plainly designed to impose penalties that are cumulative to the penalties imposed for other crimes.” Moreover, there is nothing in § 3553(a) that would give a district court the authority to reduce a sentence on one count in light of the penalties prescribed for another: “consideration of only the factors set out in § 3553(a) could lead the court to conclude that a shorter total sentence than the total specified for a § 924(c) conviction and recommended for the underlying crime would be appropriate.” Thus, a sentencing court must first determine the appropriate prison term for the count to which the § 924(c) count is to be consecutive, then impose the gun sentence. If the court reduces the prison term on the underlying count on the ground that the total sentence is too severe, it “conflates the two punishments and thwarts the will of Congress that the punishment imposed for violating § 924(c) be” additional and consecutive.


This decision is unconvincing. Several of the § 3553(a) factors arguably permit a sentencing court to consider the § 924(c) sentence in selecting an appropriate sentence on the underlying count: the "nature and circumstances of the offense"; the need for the sentence to reflect the "seriousness of the offense"; the "respect for the law" and "just punishment" provisions and the deterrence provisions all seem to cover this. Moreover, in a similarly structured statue, 18 U.S.C. § 1028A, which mandates a 2-year consecutive sentence for aggravated identity theft, Congress specifically directs that the sentencing court “shall not in any way reduce the term to be imposed” on the underlying offense “so as to compensate for, or otherwise take into account,” the § 1028A sentence. The absence of a similar instruction in § 924(c) would seem to suggest that the circuit got this one wrong. Finally, and in any event, under Kimbrough, district courts are clearly permitted to “thwart the will of Congress” in exercising their sentencing discretion.


Sunday, December 07, 2008

Take It To The Banc

United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)

Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two “location specific” concerns. The court held that firearms offenses are more dangerous in densely populated urban environments and that the need for deterrence was greater because New York’s strict gun laws made it one of the few places where gun-running was profitable.

On Cavera’s appeal, a panel of the court vacated the sentence as procedurally unreasonable (the case was blogged here twice, most recently in October 2007 under the title Location, Location, Location). The circuit then took up the case en banc. Although the court divided deeply on some issues, the majority vacated the panel opinion and affirmed the sentence.

The Deterrence Theory

The en banc majority opinion, written by Judge Calabresi, agreed that the district court’s deterrence rationale was a valid basis for an upward variance.

There is “no special reason to think that reliance on a locality-based categorical factor is - without more - suspect.” And, the “existence and enforcement of strict local gun laws in a particular jurisdiction is likely to make the cost of getting a gun in that jurisdiction higher than in a jurisdiction with lax anti-gun laws.” This, in turn, increases “the profits to be had from trafficking guns into the strong-enforcement jurisdiction.” The penalty thus needs to be “correspondingly higher to achieve the same amount of deterrence.” The majority cited “considerable” empirical support for this position, although it noted that, “[l]ike any economic theory,” the point was not without controversy. Nevertheless it was not an abuse of discretion for the district court to rely on this type of reasoning.

Judge Straub dissented, and was joined by Judges Cardamone, Sotomayor and Pooler. Judge Straub argued that it was error for the district court to conclude that, “as a general matter,” greater deterrence was necessary because gun trafficking is more profitable in New York than elsewhere, although there would have been no error if the district court had found that Cavera himself had been motivated by such greater profits.

More importantly, the dissenters disagreed that, as a factual matter, gun trafficking was more profitable in New York. Their review of the information relied on by the district court pointed to no such conclusion.

Judge Sotomayor wrote a separate dissent, joined by the other dissenters, that made this same point, describing the district court’s deterrence reasoning as “unsubstantiated and unconvincing,” since it was based on a single law review article that “hypothesized - without the benefit of data - that gun trafficking might be more profitable in areas with strict gun laws.” This opinion also points out that the majority should not have relied on data and economic theories not referenced by the district court. This “shifts the appellate court’s role from reviewing the lower court’s sentencing rationale to crafting it.”

The Dangerousness Theory

The members of the court had an even wider range of views on the district court’s conclusion that firearms offenses are more dangerous in densely populated urban areas. The court did not rule on the issue.

As summarized in the majority opinion, “some of us would hold that the district court, in its wide discretion, permissibly relied on a determination that trafficking guns into an urban area is likely to create more harm than the national average offense envisaged by the Guidelines. Others would hold that the district court erred to the extent that it based the sentence on the notion that guns are more dangerous in metropolitan areas. Still others are unsure whether reference to such broad, nonspecific geographical and demographic factors is appropriate in the context of this case.”

Other Interesting Tidbits

The majority opinion has a lot of other interesting, if more general, material that is worth looking at.

1. En Banc procedure

This opinion gives nice explanation of the court’s view of the en banc procedure itself, a procedure that the court uses “sparingly.” It notes that when the members of the court are in “substantial agreement,” an en banc opinion “gives us the opportunity to speak somewhat more broadly, for the purpose of giving guidance to district courts in this Circuit and to future panels.” It also notes that when the members of the court “possess significantly differing views on a particular issue,” it is “often wise to avoid speaking as an en banc Court unless the point is one that is strictly necessary to decide the case.” This is interesting, as it might explain the infrequency of en banc rehearing in this circuit.

Most importantly, however, Judge Calabresi’s majority opinion seems to have abandoned, sub silentio, the circuit’s annoying practice of using the phrase “in banc” instead “en banc.”

2. Substantive Reasonableness

The majority opinion changes the court’s standard for substantive sentencing review, even though the court did not review Cavera’s sentence substantively. From now on, the court will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions ... . To the extent that our prior cases may be read to imply a more searching form of substantive review, we today depart from that understanding.”

The opinion also describes the substantive review process in detail. First, the court takes into account “the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” The Guideline range is not presumptively reasonable, while a non-Guideline sentence is not presumptively unreasonable, and there need not be “extraordinary” circumstances to justify one.

Substantive review is also informed by 18 U.S.C. § 3661, which provides that there is “no limitation” on the information about the defendant that a court can consider “for the purpose of imposing an appropriate sentence.” Section 3661 is not a “blank check” for district courts, however. A appellate court will consider “whether a factor relied on by a sentencing court can bear the weight assigned to it” under the totality of the circumstances of the case.

The court recognizes that a district court may vary from the Guidelines based solely on a policy disagreement, even where that disagreement applies to a wide class of offenders or offenses. Variances from the Guidelines will “attract greatest respect” on appeal when the judge finds that the case is outside the “heartland,” while a finding that a Guideline sentence does not properly satisfy § 3553(a) in a “mine-run case” will be subject to “closer review.”

The question of when a sentence merits “closer review,” however, is still evolving. “More will have to be fleshed out as issues present themselves.”

3. Procedural Reasonableness

Procedural review entails, in very large part, considering the district court’s explanation for the sentence. An adequate explanation is a “precondition for meaningful appellate review.” The explanation must satisfy the reviewing court that the district court “has considered the parties’ arguments and that it has a reasoned basis for exercising its own legal decisionmaking authority.”

A district judge imposing a non-Guideline sentence “should say why she is doing so” and should “bear[] in mind that a major [variance]... should be supported by a more significant justification than a minor one.” However, once the appellate court is “sure” that the sentence “resulted from the reasoned exercise of discretion, we must defer heavily to the expertise of district judges.”

Such deference might well “result in substantial variation among district courts,” but this is a “necessary cost” of the Booker remedy. In its recent cases, “the Supreme Court has made clear its view that disparities in sentences imposed by different district judges are more likely to reflect justified differences than are those arising from difference of opinion among appellate panels.”

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Who’s Your Daddy?

United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born. After that, he was transferred to the Ready Reserves; he performed no further duty or services for the army, and received no pay or other form of government compensation. Although the army had the right to recall him to active duty, it never did so, and he was discharged in 1972.

Connolly legally entered the United States in 1993, but was deported in 1998 after a drug conviction, without asserting a claim to U.S. citizenship. He reentered illegally sometime after January 2002, and in 2005 was charged with illegal reentry. He defended the case both in the district court and on appeal by arguing that under 8 U.S.C. § 1403, he was a U.S. citizen.

The circuit disagreed. Section 1403 grants citizenship to anyone born in Panama on or after February 26, 1904, “whose father or mother or both at the time of the birth of such person” was a U.S. citizen “employed by the Government of the United States.”

Connolly’s case presented two questions. The first was whether his father was his “father” under the statute, since Connolly was born out of wedlock. In resolving this against Connolly, the district court had relied on an obscure interpretation letter ostensibly issued by the INS in sometime in 2001 that provided that the term “father” in this statute excluded the father of a child born out of wedlock unless the child had been legitimated. The district court gave this letter Chevron deference, and accordingly found that Connolly’s father was not, in fact, his “father.”

The circuit was not convinced. First, the letter was of dubious provenance, existing only as a Westlaw citation, with no “date or any other publication information that would help to identify how it came to exist.” Moreover, Chevron deference is only warranted where Congress has not spoken clearly on the issue. But here it has. The statute uses the term “father” without modification, restriction or exception, and the ordinary meaning of “father” is a “male parent.” Nor did the absence of statutory language distinguishing children on the basis of legitimacy create an ambiguity. When Congress has wanted to distinguish fathers of children born out of wedlock in title 8, it has done so. The court was also skeptical of INS letter itself: its lack of “thoroughness”; its poor “reasoning”; and the “limited relevance” of its sources. Finally, the court noted that a “more recent” pronouncement by the Department of Justice reached the contrary conclusion.”

The court stopped short of actually holding on the issue, however, because it held that Connolly could not establish that his father was “employed by the Government of the United States” when Connolly was born, in light of the fact that the father had been separated from active military duty eighteen days before Connolly’s birth. The plain meaning of “employ” is to “use or engage the services of” or “to provide with a job that pays wages or a salary.” In addition, when Congress does not provide a definition of the term “employee,” courts must assume that it had in mind “the conventional master-servant relationship” under common law. Under this test, the father was not “employed” after his separation from active duty. After leaving Panama, he returned to the job he had before being drafted; he did not participate in training, get paid a salary or receive another compensation. While army reservists serve a “necessary and valuable purpose,” this does not “constitute an employment relationship under the ordinary meaning of the statutory language.”


Saturday, December 06, 2008

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.


Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been stabbed or shot.

About two months later, Maurice Clarke was arrested on gun charges. He told a detective that he had been hired to kill Ellis; he was given a gun and was driven around by someone else who was looking for Ellis, whom they could not find, and was paid for his time. Clarke later said that he would invoke his Fifth Amendment rights if called to testify, so his statement was admitted into evidence through the detective as a statement against Clarke’s penal interest.

In March of 2002, one month after Clarke’s arrest, Orlando Gordon, one of Lee’s drug associates - he bought crack from and sold marijuana to Lee - was assaulted by “Mel,” a member of Lee’s crew. Gordon and Lee spoke about their respective assailants, Ellis and Mel, and discussed a “body for body” swap, under which Lee would deliver Mel to Gordon and Gordon would deliver Ellis to Lee. Gordon, a confidential informant, recorded a conversation with Lee about this plan and, during the conversation, Lee could be overheard placing a call to someone else asking for a “favor” to be “taken care of” - the shooting of Ellis. Lee and Gordon discussed this plan a bit more, but nothing came of it.

The Crawford Error

The court of appeals agreed that the admission of Clarke’s statement through the detective was a Confrontation Clause error under Crawford. Moreover, the error was preserved - although the trial was pre-Crawford, the defense expressly mentioned Confrontation Clause concerns when arguing against the admission of the statement. The court also concluded that the error was harmless.

Effect of the Error on Williams

The majority had little trouble concluding that the admission of Clarke’s statement “contributed to the verdict” against Williams. The only evidence against Williams, absent the hearsay, was that he rented a car and gave it and a gun to Lee, and that he later retrieved a gun from another member of the crew because Lee had “just been bit.” Only Clarke’s statement tended to suggest that Williams gave the car and gun to Lee to help Lee get back at Ellis. “Without the Clarke testimony there is absolutely no indication that the ... car and gun incidents involved a hired killer.” This was true even though Clarke’s statement did not explicitly mention Williams or Lee. A “reasonable juror” could have drawn precisely this inference, and the prosecutor encouraged the jury to do so. Since Williams was not implicated in Lee’s later discussions with Gordon about having Ellis shot, Clarke’s statement was “critical to Williams’ conviction.”

Effect of Error on Lee

The harmless error question was “closer” as to Lee because his conversation with Gordon made is clear that he was “orchestrating a plot to have Ellis shot.” Nevertheless, the majority vacated Lee’s conviction because there was very little evidence that the plan with Gordon included promising something of value to the shooter, an element of the offense of conviction. When Lee called the shooter during his conversation with Gordon, he spoke of shooting Ellis as “a favor for a favor.” This was not sufficient to establish the pecuniary value element.

While there was some other evidence that might have referred to the pecuniary value element - a mention that Lee was “spending more money” - the probative force of that evidence was weak, given that Lee was purchasing marijuana from Gordon at the time of their interactions. Moreover, the government repeatedly referred to Clarke as a “hired killer” who was “paid” to kill Ellis. Since Clarke’s statement “clearly” established the pecuniary value element and the other “money” reference was ambiguous, the government did not establish beyond a reasonable doubt that Clarke’s statement did not contribute to the verdict against Lee.

The Dissent’s View

Judge Straub disagreed. On his review of the record, Clarke’s statement did not contribute to the verdict against either defendant. He viewed the statement as “relatively unimportant to the” government’s case since, it did not “connect either defendant to a murder for hire conspiracy.” Rather, it “only established how far such a conspiracy, irrespective of its participants might have progressed.”

Sufficiency of the Evidence

On the other hand, the court held that the evidence against the defendants, including the Clarke statement, was sufficient. For this, the court turned to United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008), a highly similar case (blogged below under the title For Your Consideration), which held that sufficiency review should take into consideration improperly admitted evidence - a principal not without controversy. Here, a reasonable trier of fact could have found that Williams rented the car and gave the gun to Lee as part of plan for Lee to avenge his stabbing by Ellis. Clarke’s statement could reasonably be interpreted as relating to that plan, and thus that Williams and Lee were “involved in a conspiracy to pay Clarke to murder Ellis.”

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How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was not an escape plan, but rather was a plan to force a change of counsel. In calculating Salim’s sentence, the court imposed a 3-level official victim enhancement, a 2-level obstruction of justice enhancement, and a 3-level restraint enhancement. It declined to impose the terrorism enhancement of U.S.S.G. § 3A1.4, however. Both sides appealed, and the court affirmed as to Salim’s claims, but reversed on the terrorism enhancement.

The Terrorism Enhancement

Guideline section 3A1.4 provides for a dramatic enhancement if the “offense is a felony that involved, or was intended to promote, a Federal crime of terrorism.” The guideline adopts the definition of “Federal crime of terrorism” contained in 18 U.S.C. § 2332(g)(5): a crime that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and that is a violation of certain enumerated statutes, including the one to which Salim pled guilty.

The district court concluded that the attack on the guard was “in furtherance of his intent to affect or influence [the district court’s] decision about substitution of counsel, and was in retaliation for judicial conduct denying [his] applications for substitution of counsel.” It refused to impose the enhancement, however, because it also held that the enhancement only applied to “conduct transcending national boundaries,” which did not occur here.

The circuit reversed. The district court distilled this extra requirement from 18 U.S.C. § 2332b(f), which gives the attorney general “primary investigative responsibility” for all “Federal crimes of terrorism” ... “[i]n addition to any other investigative authority with respect to violations of this title.” The lower court concluded that this section would be meaningless unless “Federal crime of terrorism” referred only to crimes involving transnational conduct because other sections of title 18 already give the attorney general “broad authority to investigate” intra-national crimes. Thus, the “addition[al]” authority referred to in § 2332b(f) must refer to transnational crimes.

The circuit disagreed, since no transnational conduct requirement is contained in § 2332(g)(5), the definition selected by the Sentencing Commission. Moreover, the district court’s construction of § 2332b(f) was itself erroneous. That section does not give the attorney general additional investigative “authority” for Federal crimes of terrorism, it gives him “primary investigatory responsibility” for them. And “[w]hatever” that phrase means, it is “plainly distinct” from “investigative authority” because “it envisions an authority expressly superior to that possessed by another actor.” It is “not meaningless” to give an officer “primary investigative responsibility over a certain category of crimes, even if he has pre-existing authority to investigate the same crimes.”

Salim also argued that the enhancement should not apply because the rulings of a judge do not constitute “government conduct” under § 2332(g)(5). The court found this claim “patently meritless.” A federal judge is a “government official,” and thus the “conduct of government” includes judicial rulings.

The Obstruction Enhancement

The district court found that Salim lied at the Fatico hearing about his motive for the attack when he testified that his intent was merely to force his attorneys to resign and not to influence the district court’s determination about whether to grant a substitution of counsel.

An obstruction enhancement based on this finding was proper. Salim’s main argument on appeal was that his motive for attempting to attack his attorneys was immaterial, because he pled guilty only to attacking the guard. But this relied on an “impermissibly narrow notion of materiality.” The issue under consideration was whether the terrorism enhancement applied, which in turn required the court to consider the purpose of the attack. For the obstruction enhancement, a statement is material if it “would tend to influence or affect the issue under determination.” Since motivation is clearly a factor in the terrorism enhancement, Salim’s statements were material.

They were also false. The district court did not clearly err in concluding Salim’s testimony that he believed that a change of counsel could be effectuated unilaterally by his counsel was a lie. Finally, the district court made adequate findings as to every element of the enhancement, including intent.

Official Victim

Salim challenged this enhancement on the ground that there was no evidence that the attack was motivated by the guard’s “official status.” But Salim clearly knew of the guard’s status, and testified that he was trying to obtain a key that the guard possessed only as a result of his official status. This satisfied the enhancement.


Salim claimed that, since he did not restrain the guard until after he had been disabled by the stabbing, the restraint enhancement should not apply. The circuit disagreed: “Handcuffing a victim and locking him in a cell after a potentially lethal attack prevents a victim from seeking aid and thereby adds to the underlying offense of attempted murder.”

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The Waist Band

United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)

October is the cruellest month. That’s when a New York City detective recovered a gun from Hector Padilla’s waistband. Padilla was sentenced to 120 months’ imprisonment, the statutory maximum. On appeal, his principal challenge was to the stop-and-frisk.

The Terry Stop

The detective, who was on surveillance in a “high-crime” area, became suspicious when he saw Padilla and another person following a “skinny,” “disheveled” white male down a secluded wooded path. The officer thought either that the two men were planning to rob the disheveled man or that the three were going to engage in a drug deal together. The officer drove around the block; when he saw the three again they were on the other side of the path and appeared to be walking as a group. This did not dispel his suspicions. It was still possible a robbery could take place; it was also possible that a drug deal had occurred during the time the three were out of view. Moreover, as he pulled up, he saw Padilla adjust something in the center of his waistband. The object appeared heavy, and Padilla’s motion was “consistent with the adjustment of a gun lodged in one’s waistband.” Accordingly, the detective and his partner drew their guns and ordered all three men to place their hands on the police car. The detective immediately patted down Padilla and, feeling a “hard object shaped like a gun,” recovered a .38 caliber revolver.

The Court’s Ruling

The circuit agreed with the district court that there was reasonable suspicion both for the stop and the frisk. As for the stop, the detective was justified in believing that Padilla and his accomplice might be targeting the disheveled man for a robbery or that a drug deal was about to take place, particularly given the “high-crime nature of the neighborhood.” Moreover, the detective’s explanation of why he continued to be suspicious after the men emerged from the path was “reasonable.” Thus, the officer’s concerns were not based on an “inchoate and unparticularized suspicion or hunch.”

The frisk was also justified. Given his police experience, including prior arrests of armed individuals and the “regular sight of his fellow officers adjusting concealed firearms,” it was reasonable for the detective to suspect that Padilla was carrying a gun. Nor was the court persuaded that Padilla’s gesture was “ambiguous.” The detective testified that the adjustment was not consistent with any of the innocent explanations proposed by defense counsel at the hearing; even if it were, the “distinctive” nature of the waistband adjustment provided the detective with reasonable suspicion that Padilla was armed.

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