Wednesday, March 25, 2009

Publish and Perish

United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam)

This case was originally decided by summary order in December of 2009. On the government’s motion, the court withdrew the summary order and issued this published decision in its place.

The decision resolves two recurring claims with respect to mandatory minimum sentences. First, the court has long held that the federal drug statutes' disparate treatment of cocaine and crack offenses does not violate equal protection. Samas made the same equal protection claim here, arguing that the issue should be reconsidered in light of Kimbrough. The circuit disagreed: “Kimbrough bears upon the discretion of district judge to sentence within the maximum and minimum sentence ‘brackets’ [but] does not disturb our precedents rejecting challenges to the constitutionality of the mandatory sentencing scheme” for drug cases.

Samas also argued that the parsimony clause in § 3553(a) conflicted with the mandatory drug sentencing provisions. But the circuit made clear that a sentencing court must impose the mandatory minimum sentence even if it would reach a different result by considering § 3553(a). That section applies “except as otherwise specifically provided,” a clear reference to statutes that prescribe a mandatory minimum.

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Monday, March 23, 2009

Summary Summary

So far, there have been three summary orders of note in March. Let’s take a look.

In United States v. Alkhabbaz, No. 07-4679-cr (2d Cir. March 23, 2009), the defendant was convicted of fraud and money laundering offenses. The circuit held that it was error to impose a sentence enhancement for using a minor, since the use of the minor was in connection with the underlying fraud, not the money laundering offense itself. The court also strongly suggested that the government could not seek to correct on remand a sentencing error in the defendant’s favor that it did not appeal in the first instance.

In United States v. Madoff, No. 09-1025-cr (2d Cir. March 20, 2009), the court affirmed the denial of bail pending sentencing. The court agreed that Madoff posed a risk of flight since his age and exposure to a long prison sentence gave him an incentive to flee. He also had the means to flee, despite his protestations to the contrary; the district was “not required to treat this defendant’s financial representations as reliable.” The court also found “substantial evidence” that Madoff posed a risk of economic harm to the community.

In United States v. Stuckey, No. 08-0291-cr (2d Cir. March 18, 2009), it was error to admit un-Mirandized statements on the government’s main case on the theory that the defense “opened the door” to them, since the statements were not used to impeach the defendant’s testimony. Trial counsel did not object on this ground, however, and the court found no plain error.

Friday, March 20, 2009

For Your Information

United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)

Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. § 841(b)(1)(B), while the other had a 10-year mando under § 841(b)(1)(A). Before trial, the government filed a prior felony information pursuant to 21 U.S.C. § 851(a)(1). This had the effect of doubling the mandatory minimum to which Morales was exposed. But the information specifically indicated that Morales would be subject to the “enhanced penalties of Title 21, United States Code, Sections 841(a), 841(b)(1)(B) and 851.” After trial, but before sentencing, when it is otherwise to late to file an information, the government filed an amended information referencing § 841(b)(1)(A).

At sentencing, Morales complained that he went to trial because he believed that the only mandatory minimum he faced was 10 years: the 5 years under § 841(b)(1)(B) - which was doubled by the prior felony information - and the 10 years under § 841(b)(1)(A), which he indicated he believed the government had refrained from doubling in an exercise of its discretion. Not an unreasonable thought, since the defendant was, at the time, 67 years old.

The government, on its part, noted that § 851 does not require that a prior felony information identify the statutory basis of the proposed enhancement at all. It claimed that it had simply made a clerical error, and that the amended information corrected the error, which is expressly permitted by the language of § 851(a)(1). The district court agreed, found that Morales was subject to a 20-year mandatory minimum, and imposed it.

On appeal, the circuit vacated for further findings. It agreed that § 851 does not require the government to specify the basis of the enhancement or its length, but looked beyond the language of the statute to determine its purpose. In fact, § 851 has two purposes. The first, not implicated here, is to allow the defendant to contest the accuracy of the claim that he has a prior felony conviction. But the second, inherent in the statute’s requirement that the information be filed before trial or the entry of a guilty plea, is that the defendant is supposed to have “ample time to determine whether to enter a plea or go to trial and plan his trial strategy with full knowledge of the consequences of a potential verdict.” After all, if an opportunity to question the prior conviction were all that was required, “notice after conviction but prior to sentencing would suffice.”

Accordingly, the court held that “a prior felony information that, like this one, could mislead a defendant as to the minimum penalty he or she would face after a jury’s conviction undermines Congressional intent.” Given this, it is “not possible to determine the appropriate remedy, if any, until it is known whether the mistake in the prior felony information adversely affected defendant’s decision to go to trial or his trial strategy.” The court therefore remanded the case to the district court for further findings on “(1) whether defendant understood the citation to 841(b)(1)(B) and the absence of a citation to 841(b)(1)(A) as an indication that the government had elected not to seek Section 841(b)(1)(A)’s higher mandatory minimum; and (2) if so, whether defendant’s misapprehension adversely affected trial strategy or triggered a decision to go to trial rather than to accept or seek a plea bargain.”

In a footnote, the appellate court also pointed out that the district court could still impose a 20-year sentence, even if it concluded that Morals was not subject to a 20-year mandatory minimum.

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Seizure Disorder

United States v. Simmons, No. 07-5127-cr (2d Cir. March 17, 2009) (Pooler, Sotomayor, Katzmann, CJJ)

This appeal tackles an interesting search and seizure issue, a challenge to the discharge of a juror, and a sentencing issue. Simmons prevailed only on the sentencing claim.

The Anonymous Tip

Police officers received an radio run reporting an anonymous 911 call about an assault, with “a possible gun involved,” in progress. They sped to the address, which was in a neighborhood known for drug and gang activity, and could see no evidence of an assault. Simmons, along with two others, was inside the lobby of the building, and matched the description in the radio run. There was no indication that he was engaged in an assault.

The officers entered the lobby. As Simmons walked toward the front door, one of them ordered him to stop. He did not. The officer ordered him to stop a second time, and this time Simmons complied. The officer asked him to take his hands from his pockets and, when Simmons did not, asked him again, but he still did not. This prompted the officer to grab Simmons’ right side, where he felt a gun. In fact, Simmons had two guns, one in each pocket. In the district court, he unsuccessfully moved to suppress the guns, and the circuit, noting that this “case [was] close,” affirmed.

It began by holding that an anonymous tip that reports an ongoing emergency can be deemed more reliable, and hence requires less corroboration, than one that merely reports “general criminality.”

Next, the court held that Simmons was “seized” when the officer ordered him to stop, and rejected the government’s argument that his post-stop conduct - specifically, his refusal to remove his hands from his pockets - could be a factor in determining whether the officers had reasonable suspicion for the initial stop. The grounds for a stop may be based on events that occur after the order to stop is given “only in cases where the suspect attempts to flee from the policed after being ordered to stop” because the seizure does not occur until the person is apprehended. But since the “grounds for a stop must exist at the time of the seizure,” and since Simmons was seized when he obeyed the second order to stop, the events that occurred after he complied “do not factor into the analysis of reasonable suspicion for the initial stop.”

Ultimately, the court concluded that the officers had reasonable suspicion, both for the stop and the pat-down. The 911 call reported an assault in progress, possibly involving a weapon, Simmons matched the description of the suspect and was at the specified location. Simmons was with other people, late a night in a high-crime area, and the fact that he had his hands in his pockets could have suggested that he was concealing a weapon, especially given the mention of the weapon in the tip, and Simmons' refusal to take his hands from his pockets.

The Juror

Having lost his suppression motion, Simmons went to trial. During two days of deliberations, his jury repeatedly asked for reinstruction on reasonable doubt and also indicated that it “cannot come to a unanimous decision.” When it returned to deliberate for the third day, one juror was absent. She reported to the clerk that she could not come to court because her child was ill. The defense objected to excusing the juror without knowing how long she might be absent, but the judge excused her with no further inquiry, citing “the quality of the trial,” the “indivisible nature of justice,” and the need to avoid inconveniencing the other jurors, in particular one who had complained of financial hardship due to prolonged jury service.

The circuit found no abuse of discretion, although it again cautioned that this was a close case. Some of the judge’s reasons for excusing the juror - the “quality of the trial” and the “indivisible nature of justice” - were “abstractions” that did not offer support for excusing a juror. And, while making an inquiry into a juror’s anticipated length of unavailability is “certainly a better practice than foregoing such inquiry,” it was not “required” here, in light of the judge’s finding that waiting an additional day before continuing deliberations risked causing the absence of another juror. If not for this additional factor, however, there was “serious doubt as to whether the district court’s decision would have been a permissible exercise of discretion, as the decision lies at the margins of that discretion.”

The Sentencing

Simmons was convicted of being a felon in possession of a firearm, which ordinarily has a ten-year statutory maximum. Originally, the government alleged that he was subject to the fifteen-year mandatory minimum under ACCA, but the district judge held that ACCA did not apply. This caused the government to cross-appeal. Subsequently, however, the court of appeals decided United States v. Darden, 539 F.3d 116 (2d Cir. 2008), which rendered that decision correct, and the government abandoned its appeal.

Although the district court did not apply ACCA, it still sentenced Simmons to 175 months’ imprisonment, fifty-five months more than the applicable statutory maximum. The defense pointed this out to the court in a Rule 35(a) motion, but the seven-day period for correcting a judgment had passed. In an order, the district court acknowledged its error but, without authority to correct it, instructed the parties to bring it to the court of appeals’ attention. They did so, jointly asking for a resentencing, which the circuit granted.

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Saturday, March 14, 2009

Global Warming

United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)

In Yauri’s money laundering plea agreement, the government agreed to a two-level reduction for a “global disposition" and to a loss amount of “more than $30,000.” His presentence report, however, recommended guidelines calculation based on a loss of more than $154,000 and omitted the global disposition reduction. At sentencing, his counsel, who had not attended the plea hearing, did not object to the omission of the global reduction, and agreed that the loss amount in the presentence report was correct, despite the language in the plea agreement and the fact that Yauri had not allocuted to a specific loss amount.

On appeal, he argued that his counsel was ineffective, and the government agreed, but only with respect to the failure to call the court’s attention to the global disposition reduction. The court agreed, as well, and remanded for resentencing.

Counsel’s possible ineffectiveness on the loss amount presents a more complicated question. The court is generally averse to resolving ineffectiveness claims on direct appeal, and here the record is not fully developed on the loss amount issue. While normally, a § 2255 motion would be the preferred method for raising such a challenge, sometimes a remand for further factfinding is the better way to address an ineffectiveness claim. This is such a case. Since it is already being remanded on one ineffectiveness claim, “efficiency will be served” if the district court addresses the second claim at the same time.



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Same Claim, Different Day

United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)

In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months’ imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government’s efforts to sign him up as a cooperator, and affirmed. The court held that any deficiency in counsel’s advice was attributable to Pitcher’s own dishonesty in dealing with his attorney.

In 2004, Pitcher filed a § 2255 motion arguing that he would have received a much shorter sentence had his counsel not misinformed him about the risks of going to trial and the benefits of cooperating. After an evidentiary hearing, the district court granted the motion, vacated the sentence and resentenced Pitcher to time served. The government appealed, and the circuit reversed.

A § 2255 motion cannot be used to relitigate questions that were raised and considered on direct appeal. The claim is not barred, however, if it rests upon a different “ground” for relief than the one previously raised. A “ground” is a “legal basis for granting the relief sought by the applicant.” Here, the ground raised in the § 2255 motion was that Pitcher’s attorney gave him an “overly optimistic assessment of his chances at trial.” But this was “simply the inverse” of the claim disposed of on his direct appeal, that the attorney was ineffective for discouraging him from cooperating. Both were premised on the same facts and, hence rested on the same legal ground.


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Rehearing Loss

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

Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit’s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim. See “33 Skidoo” posted September 25, 2007. In the second, Owen II, the court held that a “protective” notice of appeal, filed after the remand, was not effective, and agreed to hold the appeal in abeyance pending the district court’s resolution of the Rule 33 motion. See “On Hold,” posted January 19, 2009. Here, the court disposes of the government’s motion for panel rehearing of Owen II, in which the government claimed, for the first time, that the Rule 33 motion was untimely because the handwritten, pro se motion was filed 279 days after the verdict, while Rule 33 has a seven-day filing deadline for motions grounded on claims other than newly discovered evidence.

The court declined to resolve the question, and denied the government’s motion. The time period prescribed in Rule 33 is not “jurisdictional” - that is, created by statute - thus a district court can consider an untimely Rule 33 motion if the untimeliness was the result of excusable neglect. Here, while there is no evidence that Owen received an extension of time from the district court, it nevertheless appears that the court intended to decide the motion before counsel filed the protective notice of appeal.

Under these circumstances, since the Rule 33 motion is still pending, the district court is in the best position to decide, “in the exercise of its informed discretion,” whether the motion was timely.



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Coffe, Tea or Jail?

United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)

On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face. He was charged with simple assault, in violation of 18 U.S.C. § 113(a)(5), and his defense was a lack of intent to injure. After a bench trial, a Magistrate Judge convicted him, holding that intent to injure was not an element of the offense, and finding that Delis had the intent to “engage in an offensive touching.” He appealed first to the district court, which affirmed, and then to the circuit, which affirmed as well.

Section 113(5) criminalizes “simple assault,” a term with common-law origins. At common law, a battery was the “unlawful application of force to the person of another.” That offense did not require the specific intent to injure or touch offensively, only a general intent to commit the unlawful act. Common-law assault, on the other hand, was either an attempted battery or the deliberate infliction upon another of a “reasonable fear of physical injury,” and was a specific intent crime.

But the terms assault and battery have long been used “interchangeably.” Even at common law, a completed battery, performed with only a general intent, or even one that arose from mere criminal negligence, also constituted an assault. Thus, the common-law definition of simple assault includes a completed common-law battery, which does not require a specific intent to injure.

This conclusion is supported by the statutory language itself. Subsections 1 through 3 of § 113(a) expressly require a particular specific intent. The omission of a specific intent element from § 113(a)(5) suggests this section does not require the specific intent to injure.

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Off-Whitley

United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)

Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except "to the extent that a greater minimum sentence is otherwise provided by ... any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir. 2008), the defendant received a fifteen-year mandatory minimum under the Armed Career Criminal Act, and a five-year consecutive 924(c) sentence. The court held that the “except” clause exempted the defendant from the 924(c) sentence, since he was subject to a greater minimum on the ACCA count. Whitley left open whether the “except” clause applied to non-firearms offenses. Here, a different panel, following Whitley, answered that question with a resounding “yes.”

The government made largely the same arguments it made in Whitley, and the court again rejected them. First, it held that the statutory text supported Williams. The phrase “any other provision of law” includes all crimes that carry a mandatory minimum sentence, as long as the firearm was possessed in connection with a predicate offense arising from “the same criminal transaction or operative set of facts.”

Nor does this interpretation produce “anomalous sentencing results.” Exempting the defendant from the 924(c) sentence in some cases does not mean that he will necessarily get a lower sentence than Congress prescribed. A court could, as a matter of discretion, impose the same sentence on the predicate that the defendant would have received if he had been subject to both the predicate and the 924(c) sentences.

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Trust Fun

United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)

Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization’s funds. He also failed to pay tax on the money, and ultimately pled guilty to tax evasion. At sentencing, over his objection, the court imposed a two-level enhancement for abuse of trust, over his objection.

The circuit affirmed. Friedberg conceded that he abused a position of trust with respect to the Odd Fellows, but argued that he did not occupy a position of trust with respect to the government, which was the primary victim of the tax evasion. But the circuit pointed out that the commentary to the abuse-of-trust guideline requires consideration the relevant conduct, not just the elements and acts cited in the count of conviction.

The embezzlement was clearly relevant conduct to the tax evasion.
Friedberg abused his position to enrich himself and avoid paying taxes, thus his employer was also a victim of the offense.

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Monday, March 02, 2009

Summary Summary

February turned out to be an interesting month for summary orders. Here are the final four:

In United States v. Santillo, No. 08-4378-cr (2d Cir. February 26, 2009), the court upheld the imposition of a year-and-a-day prison sentence even though both the defendant and the government had stipulated to a sentence of five years’ probation.

In United States v. Navarro, No. 08-0484-cr (2d Cir. February 26, 2009), the court held that the government did not breach its plea agreement by advocating for a Guideline sentence in response to the defendant’s request for a downward variance. The government had promised not to take a position concerning where within the range the court should impose sentence, and merely asking for a within-Guideline sentence was permissible.

In United States v. Bossinger, No. 07-5718-cr (2d Cir. February 25, 2009), the court found “merit” to the defendant’s claim of prosecutorial misconduct in summation. The prosecutor “did a breathtaking variety of things we have repeatedly cautioned the government to avoid.” He - or she, the opinion does not specify - (1) improperly characterized the defense case as, inter alia, a “story,” “drivel,” and “nonsense,” (2) called the defendant’s testimony “lies” more than thirty times in a twenty-four page summation; (3) used sarcasm to attack the defendant’s credibility; and (4) misstated two pieces of evidence. Nevertheless, the court affirmed. The defense only objected to the derogatory comments, making reversal “difficult,” because misconduct that is not objected to will only warrant a reversal if it constituted “flagrant abuse.” Here, the derogatory comments by themselves did not deprive the defendant of fair trial, and the rest of the conduct did not rise to the level of “flagrant abuse.”

Recently, in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), the court vacated a VICAR conviction due to the government’s improper use of an “officer expert.” See “Expert Tease,” posted October 19, 2008. In this summary order, United States v. Rubi-Gonzalez, No. 07-4424-cr (2d Cir. February 25, 2009), the court vacated the conviction on the same grounds. Rubi-Gonzales was a co-defendant of the defendants in Mejia, but was tried separately after his case was severed out. Here, as in Mejia, the “expert”’s testimony included inadmissible material, transmitted hearsay to the jury in violation of Fed.R.Evid. 703, and, arguably, violated Crawford. The error was not harmless with respect to two elements of the offenses of conviction.