Friday, May 29, 2009

Reduction Ad Absurdum

United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)

After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months’ imprisonment, and received a sentence at the bottom of the range. In 2008, he moved, under 18 U.S.C. § 3582(c)(2), for a sentence reduction under the retroactive ameliorating amendment to the crack guidelines. With that amendment, Savoy faced a revised range of 151 to 188. However, in the motion, he argued that the court should sentence him to 120 months. The district court granted the § 3583(c)(2) motion and reduced the sentence to 151 months, but refused to go lower. The court believed that the relevant guideline provision, § 1B1.10, was binding and precluded a sentence below the amended range.

On appeal, the circuit affirmed. The language of § 1B.10 is mandatory: the court “shall not reduce the defendant’s term of imprisonment under ... § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” Savoy argued that Booker and its progeny have made this mandatory language advisory. The circuit disagreed, but took the easy way out. Instead of reasoning its way through the issue, the court simply noted that seven other circuits have held that sentencing courts lack authority to reduce a sentence below the amended guideline range, and noted that it was “persuaded by the reasoning of those courts.”

There is, however, a circuit split on the issue, so perhaps it will go up.

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Thursday, May 14, 2009

Citizen Feign

United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)

Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega. When the agents warned him that it was a crime to lie to them, he admitted the truth.

Tureseo was originally charged only with illegal reentry. As that case wore on, however, he again insisted that he was Danny Ortega, a United States citizen. His wife provided Ortega’s birth certificate to his counsel, who passed it on to the government, asserting that it belonged to his client. As a consequence, the government obtained a superseding indictment charging Tureseo with falsely claiming United States citizenship and aggravated identity theft. Tureseo, now with new attorneys, was convicted after a jury trial.

The Defendant’s Absence

On the second day of the jury charge, with just two short instructions left to give, the defendant was not present. In the jury’s absence, the judge explained that, the defendant had refused to come to court that morning and that the lead defense attorney, after calling chambers, had gone to the jail to prod Tureseo to get moving. The judge waited an hour for them to arrive, then concluded the charge without them, instructing the jury to disregard the fact that Tureseo and one of his attorneys were missing.

Shortly thereafter, lead counsel and Tureseo came to court. Counsel explained that Tureseo’s absence was the fault of a marshal who refused to cuff him, and moved for a mistrial based on the court’s decision to proceed in their absence.

The circuit found that the district court violated Tureseo’s right to be present. The record was unclear as to whether Tureseo knowingly and voluntarily absented himself from the trial. Beyond hearing counsel’s explanation, the district court did not conduct an inquiry into the circumstances of Tureseo’s absence, and whatever inquiry the court had earlier undertaken did not take place on the record. On these facts, the decision to continue the trial in Tureseo’s absence was error.

The error, however, was harmless. The jury was permitted to return to court later to examine Tureseo’s features - a disputed issue in the case - and there was “overwhelming evidence of Tureseo’s guilt” such that there was “no possibility of prejudice.”

Aggravated Identity Theft

Tureseo requested that the court instruct the jury that, for the aggravated identity theft count, the government was required to prove that he knew that the means of identity he used to falsely claim United States citizenship belonged to an actual person. The district court refused, which was error under Flores-Figueroa v. United States, __U.S___, 2009 WL 1174852 (May 4, 2009). Moreover, the error was not harmless: while there was “substantial evidence” that Tureseo knew that Ortega was an actual person at the time he used Ortega’s birth certificate to assert United States citizenship, the evidence “d[id] not all flow in one direction.” Ortega testified that he did not know Tureseo, which suggested that Tureseo did not know of Ortega’s existence, either.


Sunday, May 10, 2009

Summary Summary

There have been five summary orders of interest in the past month or so. Here they are:

In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence.

In United States v. McGowan, No. 08-2603-cr (2d Cir. May 4, 2009), the court found no abuse of discretion in the district court's permitting hearsay at a supervised release revocation hearing. The declarant was a 12-year-old child victim and the district court "implicitly found" that her age and the "suggestive nature of the offense weighed in favor of not requiring her testimony." Moreover, the hearsay was trustworthy, since it was supported by "ample circumstantial evidence" such as surveillance photographs and the defendant's own admissions.

In United States v. Scott, No. 08-1489-cr (2d Cir. April 14, 2009), the court held that a restitution order could include lost investment returns from funds that were stolen from variable annuities and IRA's.

In United States v. Hamilton, No. 07-2874-cr (2d Cir. April 14, 2009), the court vacated a sentence under Kimbrough where the district court indicated that it would not consider the defendant's age because the guidelines forbade it. The circuit would not "assume that the district court understood that it had discretion to consider age and its correlation with recidivism."

In United States v. Cayce, No. 08-3784-cr (2d Cir. April 2, 2009), the court remanded the case for further consideration of the defendant's motion to withdraw his plea. It noted that at least two factors supported the motion: he moved to withdraw on the next business day after the plea hearing, and the basis was a statute of limitations defense, a claim of "legal - though not factual - innocence."

The Pursuit of Happy Ness

United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)

Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds. He was sentenced to 15 years in prison. On his first appeal, the circuit affirmed. He then sought certiorari in the wake of Regalado Cuellar v. United States, 128 S.Ct. 1994 (2008), and the Supreme Court vacated the affirmance and remanded the case for further consideration. This time, the circuit found that the evidence was insufficient and reversed the conviction.

Cuellar held that, for transportation money laundering offenses, the government must prove that the defendant’s purpose, “in whole or in part, was to conceal the nature, location, source, ownership or control of the funds.” A showing that a defendant hid funds during transportation is not sufficient to support a conviction, since there is “a difference between concealing something to transport it, and transporting something to conceal it.”

Ness was convicted of two counts. A substantive transaction money laundering count under 18 U.S.C. §§ 1956(a)(1)(B)(i), and a conspiracy with three objects:transaction money laundering, transportation money laundering under 1956(a)(2)(B)(i), and engaging in monetary transactions in unlawful funds under 18 U.S.C. § 1957(a).

With respect to the § 1956 charges, the circuit found no evidence that Ness’ “purpose in transporting the [drug] proceeds was to conceal” the nature, location, source, ownership or control of the money. All the government proved was “how” Ness moved the money, not “why.” Even Ness’ “avoidance of a paper trial” by hiding the proceeds and using code words showed “only that he concealed the proceeds in order to transport them. Under Cuellar, such evidence is not sufficient to prove transaction or transportation money laundering.”

A different analysis doomed the § 1957 object. This statute requires the government to prove a “monetary transaction” that involved a “financial institution.” Here, the evidence on that element was insufficient. “Financial institution” has a long and complex definition, comprising the twenty-six types of institutions listed in 31 U.S.C. § 5312, plus several others described in related regulations. Neither Ness nor his armored car company qualified under any of these definitions.

On appeal, the government relied solely on one of the regulations, 31 C.F.R. § 103.11, which covers money transmitters and the like. The circuit first held that since the government did not present this theory to the jury it “cannot support an affirmance.” In any event, it lacked merit, since Ness’ business lacked the features that the regulation requires of a money transmitter.

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Tuesday, May 05, 2009

Extension Headache

United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)

In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation. At his sentencing, the district judge said “the sentence is going to be six months’ home confinement,” and entered a written judgment providing that Vargas “shall be on supervised release for ... [s]ix (6) months home confinement and electronic monitoring.” The court made no mention of any supervised release beyond the period of home confinement.

Two months later, however, the court entered an “Amended Judgment” that contained the same six-month period of home confinement but also continued the original five-year term of supervised release. Vargas appealed from the Amended Judgment, arguing that, since the court revoked his supervised release in January, absent a new violation, the court could not continue the original term two months later. The circuit disagreed, but reversed due to a procedural error.

The circuit viewed the Amended Judgment as an effort by the district court to “correct” an “omission” from the January 2008 Judgment. The court rejected Vargas’ argument that the court’s failure to mention any term of supervised release beyond the home confinement in the January 2008 Judgment meant that his sentence would end after the home confinement period. The revocation did not “necessarily eliminate” the possibility that Vargas’ supervised release might be reinstated, since the court did not “terminate” the supervised release. The court also rejected Vargas’ argument that the district court intended to impose six months of home confinement in lieu of the nearly four years of supervised release that Vargas would otherwise still have had to serve, calling that an “exceedingly odd” punishment for a violation.

On the other hand, the circuit also rejected the government’s argument that, under the January 2008 Judgment, the original term of supervised release “remained intact,” with the added condition of home confinement. The district court could have sentenced Vargas to continued supervised release after the home confinement, but did not “explicitly do so.”

In the end, since the January 2008, Judgment did not “clearly continue or terminate” the original supervised release term, this case turned on the circuit’s view of a district court’s authority to correct the judgment by later extending the term of supervised release. The court found that authority in 18 U.S.C. § 3583(e)(2), which provides in relevant part that a court “may, after considering the factors set forth in [various subsections of 18 U.S.C. § 3553(a)] extend a term of supervised release ..., and may modify ... or enlarge the conditions ... at any time prior to the expiration or termination of the term.” Since this section “explicitly states” that a court can “extend a term of supervised release ‘at any time’ prior to its expiration ... the district court could extend Vargas’ supervised release term up to the allowable limit” after considering the relevant § 3553(a) favors.

While such extensions normally occur where “new circumstances” - like a violation of a condition - require extension to further the “general punishment goals” of § 3553(a), a district court “may correct an inadvertent omission that runs against the policies of section 3553(a) by extending supervised release even in the absence of a new violation.” Thus, here, while the district court had the authority to correct its “apparent” error, it could only extend the term if it considered the relevant § 3553(a) factors. Since the court did not do so here, the circuit vacated the Amended Judgment and remanded the case to the district court to first consider the statutory factors before determining whether an extension is appropriate.


Sunday, May 03, 2009

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for permission to search and she agreed. The officer found four firearms, ammunition and a bulletproof vest. In the bedroom, the officer saw photographs protruding from under the mattress. The girlfriend gave him permission both to look at and keep them. They showed McGee holding a gun.

McGee was convicted of possessing the firearms. On appeal, he challenged the denial of his motion to suppress, and the circuit affirmed. The court found that officer reasonably concluded that the girlfriend had the authority to consent to a search.

McGee relied primarily on Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007), in which a girlfriend’s consent was found to be ineffective. In Moore, the girlfriend gave the police consent to enter and search Moore’s study after she cut a lock on the door. The lock had been placed on the door to keep her out, and the police knew it. McGee argued that his girlfriend had similarly been locked out and thus lacked “access” to the house.

While the court found this argument “by no means unreasonable,” it nevertheless disagreed. A third-party’s access to a premises “depends on the understandings communicated by the titular owner to that person.” The girlfriend in Moore lacked access to the study because the lock was intended to keep her out.

Here, by contrast, although McGee had locked the girlfriend out of the house, his purpose was different. “McGee did not lock [her] out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. ... To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it.” Accordingly, the girlfriend had “access” to McGee’s house in the sense in which the term is used in analyzing this type of Fourth Amendment issue.

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Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession

Polizzi argued that all but one of his possession counts should be vacated because possessing a single collection of child pornography on a single date could constitute only a single violation of § 2252(a)(4)(B). The circuit agreed, and found plain error, as well.

The statute makes it a crime to possess “1 or more” matters that contain “any visual depiction” of an image containing child pornography. It also contains an affirmative defense if the defendant “possessed less than three [such] matters.” The court rejected the government’s claim that each “matter which contains” a prohibited image is a separate unit of prosecution under this section.

Under the “clear language” of the statute, a person “who simultaneously possesses multiple ... matter[s] containing a visual depiction of child pornography” is subject to “only one conviction under 18 U.S.C. § 2252(a)(4)(B).” The language “1 or more” indicates that a person commits only one violation of the statute by possessing more than one matter containing child pornography. Unlike the word “any,” which may be ambiguous in setting the applicable unit of prosecution, the phrase “1 or more” clearly “specifies the plural.” This reading of the statute is bolstered by the existence of the affirmative defense, which “necessarily contemplates that a person who possessed two matters containing prohibited images would face a single charge of violating” this section.

2. Multiple Counts of Receipt

The court considered a similar argument with respect to the receipt counts under § 2252(a)(2), which criminalizes the receipt of “any” prohibited images. The court found the term “any” ambiguous as to setting the applicable unit of prosecution; under the rule of lenity, absent evidence of a contrary congressional intent, “a person who receives multiple prohibited images in a single transaction can only be charged with a single violation of § 2252(a)(2).” Here, the trial evidence showed that Polizzi received prohibited images on four distinct dates, with no evidence of multiple and distinct transfers on each of those dates. Thus, Polizzi could only be convicted of four receipt counts - “one for each date on which he received images - but not multiple receipt counts per day.”

3. Simultaneous Convictions of Possession and Receipt

Finally, Polizzi argued that he could not be convicted of both possession and receipt, because possession is a lesser included offense of receipt. The court noted that both the Third and Ninth Circuits have so held, and found those cases “persuasive,” but did not actually rule on the issue. Polizzi “was charged with possessing certain images of child pornography the receipt of which did not form the basis for a separate receipt count.” Thus, for those four counts, his possession was not incident to an act of receiving for which he has already been punished.

B. Other Claims

At trial, Polizzi tried to get the district court to force the government into an Old Chief-type stipulation that the images were child pornography, so as to prevent them from being introduced into evidence. The district court would not do it, and the circuit affirmed. Here, in light of Polizzi’s insanity defense, the “specific nature and content of the images were relevant” and the “risk of unfair prejudice was minimized by the mode of presentation.”

He also challenged the court's charge on the insanity defense, but the court refused to consider the claim, finding that it was “waived” by his affirmative acceptance of the instruction, and not merely “forfeited” by a lack of objection, which would have left open the possibility of plain error review.

The Cross-Appeal

Although although the court rejected Polizzi’s claim that the Sixth Amendment required the jury to be informed of the mandatory minimum, the court did not agree with the government that district courts can never inform a jury of a mandatory minimum. Nevertheless, it reversed the grant of the Rule 33 motion.

After reviewing the cases, the court held that district courts have discretion to instruct the jury on the applicable mandatory minimum in some circumstances: “Without attempting to define the boundaries of a district court’s discretion in this regard, we recognize the possibility ... that circumstances may exist in which instructing the jury on the consequences of its verdict will better ensure that the jury bases that verdict solely on the evidence and will better discourage nullification.”

Here, the court did not reach the question whether the district court would have had the discretion to inform the jury of the mandatory minimum at Polizzi’s trial. Even if, arguendo, it had, it was “certainly within the trial court’s discretion to decline to,” which it did, and thus the standard for grating a new trial under Rule 33 - “a compelling reason involving substantial unfairness” - was not met.

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Caboose of Discretion

United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)

Every other circuit to consider the question has concluded that a district court’s denial of a crack retroactivity motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. With this decision, the Second Circuit joins the train.

Applying that standard here, the court affirmed. The district court reviewed the relevant records, considered the § 3553(a) factors and cited an appropriate reason - the danger that Borden posed to the community. In light of Borden’s lengthy criminal history, the district court was free to reject the Probation Department’s conclusion that Borden no longer “pose[d] a threat to society.”

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Khat Red-Handed

United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)

Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him. The circuit affirmed.

The difficulty, as always in khat cases, is the complex regulatory scheme for this substance. See Krazy Khat, posted September 27, 2008. Khat itself is not a controlled substance. Cathinone, the stimulant present in the leaves when it is first harvested is a Schedule I controlled substance; cathine, the substance that cathinone turns into after a few days, is a Schedule IV controlled substance and is not always illegal.

Mohamed was specifically charged with trafficking in the Schedule I substance. Thus, the government was required to prove that he knew that he possessed and intended to deal in a controlled substance, and that he in fact possessed cathinone. His sufficiency claim was premised on a claim that there was no evidence that he knew cathinone was a controlled substance.

The circuit disagreed. First, three years before this arrest, Mohamed was arrested and charged with receiving a 150-pound shipment of cathinone in Minneapolis. This was “direct evidence of his knowledge that cathinone is a regulated substance under United States law.” Moreover, the trial evidence as to the charged activity revealed that he attempted to conceal his efforts, further supporting the inference that he knew the khat he was involved with contained an illegal substance.

In addition, the government specifically proved that Mohamed sought to distribute cathinone, and not cathine, by showing (1) his efforts to move the khat leaves quickly, and (2) that the khat leaves were wrapped banana leaves to keep them moist. These were both reasonably found by the jury as efforts to preserve the cathinone.


The Acquittal That Wasn't

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)


At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the count into two questions. Part (a) asked whether McCourty possessed drugs with the intent to distribute on the street and part (b) asked whether he possessed drugs with intent to distribute in the apartment. Part (b) had a follow-up: if the jury answered “guilty” on this question, it had to decide whether there was more than five grams of crack. In the end, the jury could not reach a verdict on question (a) and acquitted on question (b). Post-trial, the defense moved for a directed verdict on question (a), since the wording of original count mentioned “five grams or more” of crack on that date. The defense argued that the acquittal on question (b) precluded further prosecution as to the events of that date.

The court denied the motion and, after a retrial, McCourty was convicted of what was left of this count - the possession of cocaine and crack on the street. The court sentenced him to seventy-eight months’ imprisonment, the bottom of the guideline range.

The Appeal

On appeal, McCourty argued that by splitting the count, the district court constructively amended the indictment, in violation of the Fifth Amendment’s Grand Jury Clause. In addition, he argued that the acquittal on question (b) was an acquittal of the entire “offense,” and thus that the Double Jeopardy Clause should have prohibited a retrial on question (a). The circuit disagreed and affirmed.

First, it held that there was no constructive amendment because “neither the trial evidence nor the jury charge altered” the count, which itself identified two separate bases for the offense - that the district court “distinguished the two bases of liability is of no consequence.” All the verdict sheet did was identify the apartment as the place of one instance of drug possession and the street as another. This did not “alter any element of the single crime of drug possession occurring on that date.” “Indeed” - according to the circuit -“we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous.”

As for the double jeopardy claim, the court held, “Where the jury is directed to make specific findings as to the separate bases of liability set forth in the indictment, we see no danger of a double jeopardy violation.” Accordingly, a defendant may be retried for a portion of a count “to which he was neither acquitted nor convicted provided the jury is particular about its findings with respect to the different theories of liability contained in that count.”

At the brighter side, however, the court granted McCourty a Regalado remand.

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