Sunday, January 25, 2009

Summary Summary

Three more quickies:

In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court's oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the "ministerial purpose" of amending the judgment to reflect the actual Guideline range that the court used.

In Watson v. United States, No. 07-0354-pr (2d Cir. January 21, 2009), the district court summarily dismissed a 2255 motion that claimed ineffectiveness of counsel. The circuit found both that there was an insufficient fatual record for summary dismissal and that the defendant had sufficiently alleged prejudice. It remanded the case for further proceedings.

United States v. Sergentakis, No. 07-0809-cr (2d Cir. Januayr 21, 2009), has an interesting discussion of loss calculation methodology in commercial bribery cases.

Crack a Smile

United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)

Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed. It disregarded the career offender guideline range, and sentenced him under the offense level that would otherwise have applied. Subsequently, he moved for a sentence reduction under 18 U.S.C. § 3582(c), seeking the benefit of the retroactive two-point offense level reduction for crack cocaine offenses. Because he had originally been a career offender, however, the district court denied the motion.

Calling the issue a “very close one,” the appellate court disagreed, and remanded the case for reconsideration of the 3582(c) motion. The court noted that McGee’s sentence was indeed “based on” a range that was subsequently lowered by the Sentencing Commission “because the district court premised McGee’s ultimate sentence on the crack cocaine guidelines.” Here, the district court expressly indicated that it was using the offense level that McGee would have been in absent the career offender designation, which suggests strongly that it would have used the lower offense level if the sentencing had taken place after the amended crack guidelines went into effect.

The court also rejected the government’s argument that the policy statement implementing the amendment refers specifically to the pre-departure guideline range. Although this argument was “not without force,” the court concluded that the policy statement “does not preclude the possibility that a defendant who was, even if by virtue of a departure, sentenced ‘based on’ the crack guidelines would be eligible for a reduction.”


Hart's Desire

United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)

Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April 10, Davy, who had been meeting only with local police and prosecutors, met with federal agents and prosecutors for the first time.

After a jury trial, Hart and Draper were convicted, inter alia, of retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2) and (f). On appeal, the court held both that the district court improperly charged the jury and that the evidence was insufficient on those counts.

The statute makes it an offense to harm someone, or threaten to do so, “with intent to retaliate” against him for giving information about the commission of a federal offense to a “law enforcement officer.” A “law enforcement officer” is defined specifically as one employed by the federal government. Thus, where the witness initially had contact with state authorities, “the government must provide sufficient evidence that the witness’s contact with law enforcement officials extended beyond her initial contact with the local police, and involved federal officers.”

Here, the jury charge did not require the government to prove that “at least one of the law enforcement officials” that Davy contacted before being beaten was an “officer or employee of the Federal Government.” This was error. In addition, the undisputed facts were that Davy did not have contacts with federal agents prior to his attack. He testified that his first contact with the feds was two days after the attack.

The court accordingly reversed the convictions on the retaliation counts and ordered their dismissal.


This case is noteworthy for a surprising reason: the defendants did not raise this issue themselves, either in the district court or on appeal. They did not object to the incorrect jury instruction, and their sufficiency argument on appeal was that there was insufficient evidence that they had retaliatory intent. Here, the circuit itself flagged the issue and ordered post-argument briefing on it. Thus, this reversal overcame both the plain error rule and the rule that “ordinarily” arguments not raised on appeal are “deemed abandoned.” The court invoked its “discretion to overlook such failure if a manifest injustice would otherwise result.”

Another tidbit: There is some dispute as to whether the sufficiency of the evidence is to be measured against the charge as given. Under this opinion, it is not.

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Ship of Fuels

United States v. Ionia Management S.A., No. 07-5801-cr (2d Cir. January 20, 2009) (McLaughlin, Calabresi, Livingston, CJJ)(per curiam)

In the 1970's, the United States entered into two international treaties, collectively known as MARPOL, intended to eliminate marine pollution by oil. To give effect to MARPOL, Congress enacted the Act to Prevent Pollution on Ships, 33 U.S.C. § 1908(a) (“APPS”), which authorizes the Coast Guard to issue any regulations necessary to carry out the treaty’s provisions. Under APPS, ships are prohibited from discharging oily waste at sea unless the discharged material is properly filtered. In addition, under C.F.R. § 151.25(a), oil tankers of 150 gross tons and above “shall maintain” an oil record book (“ORB”) to record all transfers and disposals of oily waste generated on the vessel.

This case concerns the M/T Kriton, a 600-foot oil tanker managed by the defendant corporation, which delivered petroleum products along the east cost of the United States. The ship’s crew, directed by two of its officers, routinely discharged oily waste into the ocean using a special hose that was designed to bypass the ship’s filtration equipment. The crew also made false entries in the ship’s ORB to conceal the discharges.

After a trial, the corporation was convicted of, among other things, thirteen APPS violations. It challenged them on appeal, arguing that the duty to “maintain” an ORB required it only to have possession of the book, but not to keep it accurately. The circuit disagreed. Without a requirement that the book be accurate, the regulation would be at odds with MARPOL and Congress’ intent to prevent pollution at sea. The court also noted that the plain meaning of the word “maintain” included “to keep in a state of repair, efficiency or validity,” thus in the context of a regulation imposing record-keeping requirements, the duty to “maintain” plainly includes a duty to maintain a reasonably complete and accurate record.

Monday, January 19, 2009

Habeas Corpulent

Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)

At Seth Dolphy’s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge. The prosecutor’s supposedly race-neutral explanation for striking the juror was that she was overweight: “[B]ased on my reading and past experience, ... heavy-set people tend to be very sympathetic toward any defendant.” When the judge asked him if he was “saying that race had nothing to do with it,” the prosecutor agreed. The defense again objected, noting that the same prosecutor had allowed overweight people on juries in other cases. The judge sustained the strike, holding that “I’m satisfied that is a race neutral explanation, so the strike stands.”

Once his conviction was affirmed in the New York State courts, Dolphy filed a pro se § 2254 petition in federal court. A magistrate judge recommended that the petition be granted because the trial court “misapplied Batson when it accepted the prosecution’s proffered race-neutral explanation without assessing credibility or pretext.” The district court, however, disagreed, finding that the necessary credibility finding was implicit in the trial court’s rejection of the Batson challenge.

On appeal, the circuit reversed. This case involves the third step of the traditional Batson inquiry, which “requires a trial judge to make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.” The court must somehow “make clear” whether it credits the race-neutral explanation. Here, that standard was not satisfied. While the prosecution proffered a facially race-neutral explanation, it “rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant).”

The trial court’s ruling on the Batson objection made no “inquiry or finding” and simply gave a “conclusory statement” that a race-neutral reason had been offered. This did not “necessarily indicate ... that the trial court credited the prosecution’s explanation.” Rather, it seemed only to indicate that the proffer of a race-neutral explanation “was itself enough.”

Accordingly, the court remanded the case to the district court for a hearing on the prosecutor’s sate of mind at the time. However, if the passage of time has made this “impossible or unsatisfactory” - the trial was in 1997 - the court should grant the petition.


The Rare Necessity

United States v. White, No. 07-1180-cr (2d Cir. January 9, 2009)(Kearse, Sack, Livingston, CJJ)

Police officers entered Anthony White’s home in response to a domestic violence call. According to the officers, they found him in the bedroom. He was sitting on the bed loading a sawed-off shotgun that was pointed at the doorway where the officers stood.

White’s version was that, before the police arrived, his girlfriend had threatened him with the shotgun and he had disarmed her. White claimed that he was protecting both himself and his son, who was also in the house. Finally, he testified that he was unloading the gun, not loading it, when the police arrived, and denied pointing it at them. He said that he had possessed the gun for a total of “three and a half minutes.”

Charged with being a felon in possession, White requested jury instructions both on necessity and “fleeting-possession.” The court refused, instead telling the jury that a defendant’s motive or reason for possessing a firearm was not an element, thus the government need not prove or disprove any “particular reason or motivation.” During jury deliberations, when the jury asked whether there were any exceptions for the law for “self-defense purposes,” the court responded that there “may be” exceptions “in the universe” depending on “the facts of the case,” but that none applied in White’s case. He was convicted and sentenced to eighty-four months’ imprisonment.

The circuit affirmed. It continued its long practice of refusing to decide whether there is a necessity defense to a felon-in-possession charge. The court noted that the statute does not provide for such a defense, but also that some courts have recognized it. Here, however, the court held that even if the defense existed, the facts of White’s case did not support it.

White’s testimony “was clearly sufficient” to establish that he was in imminent danger when his girlfriend pointed the gun at him. But once he disarmed her, any immediate danger to him was dispelled. Nor was the threat to his son sufficiently imminent to trigger a necessary defense charge. The threat that White described was “attenuated and speculative in nature.” Moreover, even if White was fully justified in taking possession of the weapon to safeguard his son, he did not show that he maintained possession of it “only for as long as necessary to dispel any threat.”

The court was even more dismissive of White’s asserted entitlement to a charge on “fleeting” or “innocent” possession. He did not possess the gun for “mere seconds, but picked it up, carried it to another room, began handling ammunition, and all told, had the gun in hand” for several minutes.

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On Hold

United States v. Owen, No. 07-4966-cr (2d Cir. January 9, 2009)(Feinberg, Cabranes, Hall, CJJ)

This decision addresses one of the procedural complexities that can arise when a defendant changes counsel on appeal while post-verdict motions are pending in the trial court.

Lance Owen was convicted of a drug offense in the district court. He made a Rule 33 motion that raised ineffective assistance of counsel and newly discovered evidence claims. The court granted the motion based on the newly discovered evidence claim - without addressing Owen's other claims - but the circuit reversed. United States v. Owen, 500 F.3d 83 (2d Cir. 2007). In a footnote, however, that opinion suggested that Owen’s trial counsel might have been ineffective. After the opinion was filed, but before the mandate issued, the district court began proceedings to rule on the ineffectiveness claim.

While those proceedings were pending, the mandate issued, and Owen filed a “protective” notice of appeal of his underlying conviction, which had the effect of putting a halt to the district court proceedings. He then moved for a remand in the circuit so that the district court proceedings could resume, but did not specifically note that the proceedings arose from the Rule 33 motion. A motions panel denied the motion, and the parties submitted merits briefs on the appeal.

This panel, however, concluded that the “protective” notice of appeal had “not yet become effective” because the issuance of the mandate restored the district court’s jurisdiction over the remaining claims in the Rule 33 motion. “Where, as here, the ... order that granted a Rule 33 motion on one of the grounds presented has been vacated solely on that ground - and the other grounds have not been addressed - a notice of appeal is not ‘effective.’”

Thus, a “protective” notice of appeal is to be held in abeyance pending the district court’s resolution of a Rule 33 motion, and will be come effective when the lower court disposes of the last remaining motion.

Crosswalk Puzzle

United States v. Stewart, No. 07-3003-cr (2d Cir. January 8, 2009) (Winter, Miner, Cabranes, CJJ)

Brett Stewart was a passenger in a livery cab that stopped at a red light. Two police officers claimed that the cab’s front wheels ended up in the crosswalk, a traffic violation. They pulled over the cab and recovered a gun from Stewart.

At Stewart’s suppression hearing, the officers gave their account, while the cab driver testified that he stopped before entering the crosswalk, which the district court credited. The court found that the officers had been subject to an optical illusion or distraction; it took judicial notice “of the fact that a stationary object may shift in one’s visual perception as one moves past it [and thus] that an object abutting a straight line may appear to be over that line as an observer moves past and away from that line.” The district court granted the motion, concluding that the police lacked probable cause for the stop and that there was no reasonable suspicion of criminal activity because “a traffic violation for infringing on an intersection does not quality as ‘criminal activity.’”

On the government’s appeal, the circuit reversed, holding that the district court applied the wrong legal standard. A traffic stop “based on reasonable suspicion of a traffic violation comports with the Fourth Amendment.” Neither reasonable suspicion of a crime more serious than a traffic violation nor probable cause is necessary.

On remand, the district court is to determine whether the officers had reasonable suspicion that the cab committed a traffic violation, bearing in mind that “a mistake of fact does not undermine the existence of reasonable suspicion.”

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Saturday, January 17, 2009

Summary Summary

Here are two summary orders of interest:

In United States v. Mammedov, No. 06-2971-cr (2d Cir. December 30, 2008), the court vacated a restitution order where the district court failed to set a payment schedule and, at least implicitly, ordered that the full amount be paid immediately. Ordering immediate payment when nothing in the record suggests that the defendant can comply is an abuse of discretion.

In United States v. Jibade, No. 08-1746-cr (2d Cir. January 7, 2009), the district court told the defendant that he faced possible deportation for his tax fraud conspiracy conviction when, in fact, deportation was mandatory. The court held that this warning was adequate because it put the defendant "on notice" that his guilty plea had immigration consequences so that he could pursue the matter later. Even assuming, however, that the warning was misleading or inacurate, in violation of Rule 11, the court did not vacate the plea because the defendant did not show a reasonable probability that he would not have pled guilty if not for the statements.

Crack Under Pressure

United States v. Williams, No. 08-1065-cr (2d Cir. January 7, 2009) (Hall, Livingston, Gibson, CJJ)

Here, the defendant, Saquan Lewis, unsuccessfully appealed the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c) based on the retroactive amendment to the Guideline for offenses involving crack cocaine.

The District Court Proceedings

Lewis had originally pled guilty to trafficking in crack cocaine and a 924(c) charge under a cooperation agreement. At sentencing, he agreed that he was responsible for between 50 and 150 grams of crack which, under the applicable version of the Guidelines, resulted in an offense level of 32, with 3 levels deducted for acceptance of responsibility. His sentencing range on the crack count was 97 to 121 months, but due to his prior felony, he faced a 20-year mandatory minimum on that charge and a 5-year consecutive sentence on the 924(c). After granting the government’s motion under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the court sentenced him to a total of 100 months’ imprisonment. There was “no evidence” that the range recommended by drug Guideline “played any role in the district court’s determination” of the sentence.

Under the November 1, 2007, crack amendment Lewis’ offense level on the drug charge would have dropped by two levels, to 27. But the district court denied his § 3582(c)(2) motion because the original sentence was based on a § 3553(e) departure and the original sentencing range “had no bearing” on the sentence.

The Appeal

The circuit affirmed. Section 3582(c)(2) authorizes district courts to modify the sentence of a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission.” Lewis, although nominally exposed to a sentencing range of 97 to 121 months, in fact, was subject to a 240-month mandatory minimum and, under U.S.S.G. § 5G1.1(b), that sentence became “the guideline sentence.”

Lewis argued that, as a matter of statutory interpretation, the term “Guideline sentence” was not the same as the term “Guideline range,” but the circuit disagreed. For him, the original range of 97 to 121 months “had no bearing on what became Lewis’ Guideline sentence because the 240-month mandatory minimum” subsumed and displaced “the otherwise applicable guideline range.” Once the mandatory minimum applied, his sentence was no longer “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

This conclusion was further supported by a policy statement that provides that a reduction is not authorized under § 3582(c)(2) if the Guideline amendment “does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision” such as a statutory mandatory minimum term of imprisonment. Lewis was, in fact, subject to a 240-month mandatory minimum, and the court rejected his argument that, in departing below that minimum, the district court “must have” relied upon the original crack cocaine Guideline range. The district court expressly held that this range had “no bearing” on his sentence. The circuit approved of this reasoning, noting that it was consistent with its own rule that § 3553(e) departures may be “based only on substantial assistance to the government and on no other mitigating considerations.”


Nothing In Store

United States v. Uddin, No. 07-3121-cr (2d Cir. January 6, 2009) (Kearse, Sack, Katzmann, CJJ)

Mohammed Uddin owned a small grocery store in Manhattan, and used it to commit food stamp fraud between 2003 and 2006 by dispensing cash in exchange for food stamps. He pled guilty but admitted in his allocution only that the amount of fraud exceeded $5,000 - the jurisdictional amount. After a Fatico hearing, the district court concluded that the loss amount was $377,799, and sentenced Uddin accordingly. On appeal, Uddin challenged the loss calculation.

The District Court Proceedings

The government had been seeking a loss in excess of $1.2 million, arguing that all of Uddin’s food stamp redemptions exceeding $50 during the relevant time period were fraudulent. Uddin argued instead that the loss should be limited to $5,000, the amount he admitted in his plea.

The evidence at the Fatico hearing showed that his store redeemed several times more in food stamp benefits than did two comparably sized stores nearby, and that he exchanged food stamps for cash with a CI on fourteen occasions in 2006 alone.

An agent also testified that, based on his experience, any food stamp redemptions of more than $50 at Uddin’s store were fraudulent. He characterized this as a “conservative” estimate based on the fact that the store had a very limited supply of eligible food items for sale, and those that it did stock were “dusty” and “outdated.” In addition, the store was small, lacked baskets or carts, and did not offer delivery service. Video surveillance in 2006 showed no customers leaving the store carrying groceries worth $50 or more; some appeared to be counting cash as they exited.

A second agent testified that, while the store had been well stocked in 2002 - when it first obtained its license to redeem food stamps - by 2006 the store sold very little eligible food. Moreover, the average food stamp transaction in New York City was about $12, thus the activity in Uddin’s store was quite unusual.

After hearing this testimony, the district court concluded that the government’s estimate of loss was too high, while Uddin’s was too low. The court first assumed that the store’s stock declined steadily and gradually between 2002 and 2006. This led it to discount the government’s proposed loss amount by half, which led to a loss of $629,665. The court also disagreed with the government that every transaction of $50 or more was completely fraudulent, and discounted that assumption by forty per cent. Sixty per cent of $629,665 is $377,799, and that was the amount the court settled on.

The Circuit’s Decision

The court of appeal affirmed, noting that the Sentencing Guidelines require only a “reasonable estimate” of loss in financial crimes. A court can make such an estimate by “extrapolating the average amount of loss from known data.” Here, the district court’s estimate was reasonable and was supported by a preponderance of the evidence, given the evidence of the decline in the store’s stock during the relevant time period. The use of the $50 transaction figure as a “general point of reference for likely fraudulent transactions” was likewise reasonable. Even if “not based on precise data,” it was based on “known” data such as the average dollar amount of food stamp redemptions at similar stores in New York City and the witnesses’ observations of Uddin’s own store.

The court then added - not particularly helpfully - that while “there will undoubtedly be situations in which a district court’s estimate of a loss amount falls outside the boundaries of reasonableness, we need not define precisely what those boundaries are. It is enough that the district court here did not exceed them.”


Lies My Broker Told Me

United States v. Kelley, No. 06-5536-cr (2d Cir. January 5, 2009) (per curiam)

Kevin Kelley, a stock broker, was convicted of securities and wire fraud based on his fraudulent activities with respect to four separate securities. For each of them he would either (1) purchase stocks for his clients without their authorization (2) do so without disclosing his own interest in the company or (3) misappropriate client funds for his own use. Kelley subsequently deceived his clients about the value of their investments by sending them false account statements.

Over his objection, those account statements were admitted into evidence on the securities fraud counts. On appeal, he pursued that claim, again without success. Kelley’s specific argument was that under 15 U.S.C. § 78j - section 10(b) of the Securities Exchange Act of 1934 - it is a crime to “employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance.” His point was that since the deception must be made “in connection with” the purchase or sale of the stock, statements like those at issue here, which he created and disseminated up to four years later, did not fall under the statute.

The court agreed with Kelley in principle, but not in application. The 10(b) violations here arose from Kelley’s broader scheme to induce his clients to buy the stocks, or his use of client funds to buy them without authorization, and not from the statements themselves. Rather, the statements were properly introduced at trial as evidence of Kelley’s intent to defraud and of the scope of his scheme. They also showed that his actions were not “simple mistakes but were instead part of a large, intentional scheme to defraud.”

The court disposed of Kelley’s other arguments in a summary order bearing the same docket number, in which there is one holding of note. The trial court permitted the government to introduce into evidence tax returns of one of the companies involved in the scheme as a “statement by the party’s agent or servant” under Fed.R.Evid. 801(d)(2)(D). On appeal, while the court rejected a Crawford argument with respect to those returns, it agreed that it was error - albeit harmless - to admit an unsigned tax form under this rule.

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