Sunday, June 21, 2009

Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other proceedings” typically refers to “formal judicial processes,” and the statute itself includes as examples “formal processes over which the parties have no direct control.” Plea negotiations, by contrast, are controlled by the parties, not the court, and thus do not “fit comfortably into the ‘other proceedings’ section.”

Ultimately, however, the court ducked the question. It identified a single day during the 70-day period upon which the district court held a status conference. Since a status conference is definitely a “proceeding,” and is “very similar” to the examples listed in § 3161(h)(1), that day was automatically covered by the district court’s exclusion order, and did not require an “ends of justice” finding. This rendered Lucky’s “plea negotiations” argument moot - the court’s thoughtful analysis is thus merely dicta - since with that single day excluded, Lucky could identify only 69 nonexcluded days. Accordingly, his conviction was affirmed.

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Saturday, June 20, 2009

Gray's Anatomy

United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)

Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight's daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent's testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter's friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase "another person" for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that it could not consider the statement against Jass. Jass was convicted along with Mr. Leight and was sentenced to 65 years imprisonment.

The opinion concerns the admissibility of the redacted statement and a sentencing guideline issue. The Court rejected in a summary order other evidentiary and sentencing arguments.

The Redacted Statement

The defendants’ activities came to light soon after the New Jersey trip, and both were arrested. Post-arrest, Leight gave a detailed statement about the New Jersey trip that implicated both him and Jass. At the defendants’ joint trial, Leight’s confession was admitted, but was redacted of its references to Jass, who was either referred to as “another person” or “the other person.” The district court also gave instructions limiting the jury’s use of the statement to Leight and prohibiting its use against Jass.

On appeal, Jass argued that the admission of Leight’s confession violated her confrontation right under Bruton because the use of neutral pronouns or phrases such as “another person” was inadequate under Gray v. Maryland, 523 U.S. 185 (1998), which held that replacing a defendant’s name with an obvious blank or a “deleted” reference was insufficient to avoid Bruton error. Jass claimed that the redaction here was insufficient because it still obviously implicated her, and that the circuit’s pre-Gray case law - which permitted the substitution of neutral words for a defendant’s name - had been abrogated by Gray.

The circuit disagreed. It first noted that it had already held, in a 2001 case, that this was not so and that there was no basis for reconsidering that case.

Nor did it matter that in Jass’ case the redacted confession implicated only one person other than the declarant and only the declarant and one other person were on trial. While Leight’s redacted confession alluded only to a single, presumably female, confederate, this circumstance is not analogous to Gray because the “another person” redaction effectively concealed from the jury the fact that Leight had referred directly to another person at all, let alone that the person he identified was Jass.

According to the circuit, this is the core element of the Bruton/Gray line of cases: a concern that juries not learn that a declarant defendant has “specifically identified a co-defendant as an accomplice in the charged crime,” because such “specific testimony” is “more vivid than inferential incrimination” and is thus “more difficult to thrust out of mind.” But the Bruton rule is “narrow,” confined to those situations where there will be an “overwhelming probability” that the jury cannot ignore one defendant’s specific implication of another. Where the redaction adequately conceals from the jury the specific identification of a co-defendant, there is no reason to fear that a jury will be unable to follow the court’s instruction that it should consider a confession only against its maker. The Confrontation Clause does not require that a “confession be redacted so as to permit no incriminating inference against the non-declarant defendant.”

Here, accordingly, the redaction was adequate. First, it did not indicate to the jury that Leight’s original statement contained actual names. The way the agent described the confession - e.g., “Mr. Leight told me that he and another person had taken [Victim 2] to ... New Jersey” - in no way suggested that Leight had given the agent the actual name of his accomplice.

Nor did the redacted confession “immediately” inculpate Jass. Here, the inference that the jury would have had to make to connect Jass to the redacted statement was sufficiently attenuated, because the jury would have had to refer to other trial evidence to make the link. Viewing the statement in isolation, it would not have been immediately apparent that the references to “another person” must have meant Jass, even though some of the redactions made it fairly clear that the “other person” was a woman. A “simple gender reference ... lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.” This is true even though Jass was the only other person on trial with Leight. All a juror could infer from this was that the prosecution believed that Jass was the other person that Leight mentioned in his confession but who, as far as the jury knew, he did not identify further. Accordingly, there was no Confrontation Clause violation here.

The court concluded with a brief review of the evidence of Jass’ guilt apart from Leight’s statement, and found that that the testimony of the girls rendered any confrontation error harmless, although this review did not expressly discuss the corroborating effect of Leight's statement.

The Sentencing Issue

Before the New Jersey trip, Leight used a computer, with Jass’ knowledge, to “groom” the daughter’s friend by showing her images of adults having sex with children so as to persuade her that such acts were normal. The district court subjected both defendants to the two-level enhancement under guideline section 2G2.1(b)(3)(B)(ii), which prescribes a two-level enhancement for the use of a computer to “solicit participation with a minor in sexually explicit conduct.” Jass argued that this enhancement did not apply, since it was the minor’s own participation - and not a third party's - that had been solicited.

The circuit agreed. It would make no sense to say that there should be a two-level increase because Leight used a computer to “solicit [Victim 2's] participation with [Victim 2] in sexually explicit conduct.” It is more natural to read this section as addressing a situation in which one person solicits another person to engage in sexual activities with a minor; otherwise the phrase “participation with” is rendered effectively meaningless. Accordingly, here, it was error to enhance Jass’ sentence under this provision.

But the error was harmless. The district court gave Jass a below-Guideline sentence of 65-years’ imprisonment - Leight got 115 years - and specifically indicated that it would have imposed the same sentence without the enhancement.

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Gambling Problem

United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)

Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City’s traditional organized crime families had on illegal gambling.

The primary challenge on appeal concerned two RICO predicate acts that alleged violations of New York state’s extortion statute. In New York, extortion involves compelling another person to “deliver ... property” to himself or a third person through fear of a future injury. “Property” is any personal property or “article, substance or thing of value ... which is provided for a charge or compensation.” The defendants argued that control over illegal intangible property such as a gambling operation was not “property” and could not be “delivered.”

The circuit disagreed. Surveying New York case law, the court first concluded that the state recognizes that intangible property - for example, a tenant’s right to occupy an apartment - is covered by the extortion statute. New York courts have also held that “illegal tangible goods,” such as narcotics, can constitute “property.” From those two propositions, the circuit readily concluded that illegal intangibles are also “property” under New York law.

The circuit’s own Hobbs Act jurisprudence bolstered this conclusion. Indeed, the court in 2006 held that “intangible property rights can qualify as extortable property under the Hobbs Act,” whether legal or not.

The court characterized the defendants’ claim that control over an illegal gambling business could not be “obtain[ed]” or “deliver[ed]” as “imaginative but overly literal,” since New York courts have already held that intangible property rights can be extorted.

Relatedly, the defendants also claimed that one of their beating victims was not a “victim” of the inchoate extortion offense, since he was not an “owner” of the extorted property. The court held that, since the defendants were charged with attempt and conspiracy offenses, it was sufficient that the defendants thought he was an owner.

Finally, the defendants challenged their § 924(c) convictions, which related back to the substantive racketeering count, arguing that racketeering did not constitute a “crime of violence.” Applying the traditional “categorical approach” to both the racketeering statute and the statutes underlying the predicate acts, the court disagreed. “[W]here the government proves (1) the commission of at least two acts of racketeering and (2) at least two of those acts qualify as ‘crime[s] of violence’ under § 924(c)," a racketeering conviction serves as a predicate for a § 924(c) conviction.

Finally, the court tackled an open Guidelines question in racketeering cases. One defendant challenged his aggravating role enhancement on the ground that the district court should have looked only to the conduct alleged in the charged RICO predicates, and not to his role in the enterprise as a whole. The circuit disagreed, adopting the reasoning of a Seventh circuit case. In racketeering prosecutions, role adjustments function just as they do in any other prosecution: the sentencing court is to look to the count of conviction and all relevant conduct.

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Thursday, June 04, 2009

Timewell Spent

United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)

Here, the circuit held that the district court’s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions.

Background

Gregory Timewell was a major international trafficker in marijuana and hashish. In the late 1990's, he was prosecuted in the Eastern District of New York, where he cooperated with the government. In 1998, he signed a cooperation agreement, which included a list of his assets that he agreed to forfeit to the government. Three years later, it emerged that Timewell had misled the government about some of his assets - millions of dollars hidden in Switzerland. His explanation was that, at the time of his original cooperation, he believed that the money had been appropriated by one of his associates. He later learned that this was not true, but did not tell the government, a violation of his cooperation agreement. As a result of this, in 2001, he pled guilty to making false statements to the government.

Timewell was sentenced in 2004, before Booker. His offense level was 41: a subtotal of 44, which included a 2-level increase for obstruction of justice based on his concealment of assets, less 3 levels for acceptance of responsibility, which produced a 324-to-405-month sentencing range. The government decided to honor cooperation agreement and made a 5K1.1 motion, urging a “substantial” sentence reduction in light of Timewell’s “extensive” cooperation, which included testimony at a co-defendant’s trial. The court downwardly departed, but only to 275 months’ imprisonment.

The Crosby Remand

In preparation for the Crosby remand, Timewell’s counsel again recounted the scope of Timewell’s cooperation, and also noted that one of Timewell’s co-conspirators received a 120-month sentence. Also before the district court were letters from the government, and a former DEA agent who had debriefed Timewell.

At the Crosby hearing, the assistant again praised Timewell for his forthrightness in cooperating, and noted that a different co-conspirator had received a 180-month sentence with no 5K1.1 motion. The government asked the court to give “serious consideration and weight to the argument” that there should not be a “significant disparity” between Timewell and that co-conspirator.

Despite this, the district court remained concerned about Timewell’s earlier failure to disclose some assets. The court entered an order in October 2007 in which it decided not to resentence Timewell. First, the court found no unwarranted sentencing disparity between Timewell and his co-defendants because, unlike them, Timewell violated his cooperation agreement by failing to disclose assets. The court also took into account that the government typically refuses to file a 5K1.1 motion at all when a cooperator has violated the plea agreement, and noted that it had for this reason imposed a sentence “substantially” longer than it otherwise might have.

The Appeal

On appeal, the circuit vacated that order, and remanded the case with instructions. The court identified five procedural errors in the district court’s approach.

First, the lower court did not “respond directly” to the inquiry “required” by Crosby - whether the sentence would have been “materially different from the sentence originally imposed” had the district court known that the sentencing guidelines were not mandatory.

In addition, the court erred in taking into account what it perceived to be the government’s customary practice of voiding plea agreements whenever a defendant violates one of its terms. There was no evidence before the district court that such a practice existed, and it was procedural error to rest a sentence on a “clearly erroneous finding of fact.”

The district court also erred by increasing Timewell’s sentence based on this supposed “practice” in the first place. “That the government usually voids cooperation agreements upon a breach by the defendant should not be a reason to constrain a district court from giving proper effect to a 5K1.1 letter if the government decides to submit [one] notwithstanding the defendant’s breach.”

Fourth, the court erred in its belief that, absent a 5K1.1 motion, the guidelines would have recommended a life sentence. In fact, the range was 324 to 405. A district court errs when it “makes a mistake in its Guidelines calculation.”

Finally, the court mischaracterized Timewell’s unwarranted disparities argument by including more co-defendants in its analysis than Timewell had proposed as a basis for comparison. The district court included defendants who had been sentenced after Timewell was sentenced, but under Crosby a court considering a remand must limit its decision to the circumstances “existing at the time of the original sentence.”

The circuit remanded the case and directed that the district court consider the Crosby inquiry “without consideration of past practices of the government in regard to the rescission of cooperation agreements.” In addition, if the court decides to revisit the original sentence, it should consider (1) the sentencing disparities among co-defendants; (2) the government’s recommendation of a “substantial” departure from the guidelines “in view of Timewell’s excellent cooperation”; and (3) the factors set forth in § 5K1.1 itself.

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