Monday, August 31, 2009

Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.


In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the case.

Ray herself caused the case to be reopened in 2007 when she applied for a city job, and needed documentation as to the resolution of her 1992 conviction. She contacted the court clerk, an action that prompted the district court to set a “re-sentence” date of March 5, 2008.

By this time, Ray had fully rehabilitated. Living openly in the Eastern District, she had been employed for the entire fifteen-year period and had never been rearrested. She raised three children, owned a home and a car and was in college, as were two of her children.

At the resentencing hearing, the court faulted both the defendant and her attorneys - but not itself or the government - for the delay. The government, on its part, raised the question of whether the delay violated Ms. Ray’s right to a “speedy sentencing.” After the parties had briefed the issue, the court found no violation and imposed sentence: one day in prison plus three years of supervised release. The court ordered six months in a halfway house as a condition of the supervision, even though counsel pointed out that the only available facility was far from both Ray’s job and her home.

The Appeal

On appeal, the court first held that the district court erred in finding that it had been Ray’s own responsibility to return to court and face resentencing. A “defendant does not bear the burden of seeking her own sentencing.” With this, the court went on to analyze the constitutional issues.

1. No Sixth Amendment Violation

Both the government and the defense took the position that the Sixth Amendment right to a speedy trial included the right to a speedy sentencing. This is significant, since under the Speedy Trial Clause, the remedy is “categorical: dismissal of the charges.”

The Supreme Court and several circuits - including this one - have assumed without deciding that the Speedy Trial Clause includes a right to a speedy sentencing. But this panel's own examination led it to hold otherwise. It began by noting a tension in the precedents - Speedy Trial Clause violations require a dismissal, but the Supreme Court has held that dismissal of the charges is an inappropriate remedy for a sentencing error. This tension evaporates if the Sixth Amendment does not cover delays in sentencings.

Next, the court considered the original meaning of the word “trial” in the Speedy Trial Clause, looking both to Blackstone and early American court decisions. It had little difficulty concluding that the American court system has always “distinguished between trial and sentencing.” Thus, “the word ‘trial,’ as understood at the time of the Founding, would not have encompassed sentencing proceedings.” Moreover, modern authorities, such as the Federal Rules of Criminal Procedure, and the Speedy Trial Act - which does not include sentencing proceedings in its time calculations - have preserved this “basic divide between trial and sentencing.”

Finally, the court looked at the interests protected by the Speedy Trial Clause - oppressive pretrial incarceration, the defendant’s anxiety, and the possibility that the defense will be impaired by the passage of time - and found that “these harms do not arise when there is a delay between conviction and sentencing.” While other harms can arise from a delayed sentencing, for example, the defendant and victim are left “in limbo concerning the consequences of conviction,” these concerns are “not the same as those that animate the Speedy Trial Clause.”

2. Fifth Amendment Violation

The court found a better fit in the Due Process Clause of the Fifth Amendment, which “has a limited role to play in protecting against oppressive delay.” The court considered two factors to determine whether Ray was deprived of her “due process right to a prompt sentencing”: (1) the reasons for the delay; and (2) the prejudice to the accused.

Here, the specific reasons for the delay were unknown, and the court treated the delay as the result of “ordinary negligence on the part of the government.” But the court held this against the government, and reiterated that it was not Ray’s duty to see that she was speedily sentenced.

The court next held that to prevail Ray had to show “substantial and demonstrable” prejudice. But the court weighed the extraordinary length of the delay in Ray’s favor, particularly since she underwent a “complete rehabilitation” in the interim. The court concluded that removing Ray “from her current life and compel[ling] her to reside for six months in a halfway house would undermine her successful rehabilitation,” since the restrictions imposed on the liberty of a halfway house resident are “substantial.”

After balancing all of the factors, the court held that, in light of Ray’s “successful and prolonged rehabilitation, and the upset that a custodial sentence would now entail,” she had successfully established a Due Process Clause violation. The remedy the court selected was to vacate the six-month halfway house portion of her sentence.

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Sunday, August 30, 2009

Out Of Range

United States v. Main, No. 08-4088-cr (2d Cir. August 27, 2009) (Walker, Wallace, CJJ)

Christopher Main pled guilty to a crack cocaine offense pursuant to a Rule 11(c)(1)(C) agreement that stipulated to maximum sentence of 96 months, which was below the 120 to 150-month guideline range, and provided a “carve-out” for Main to seek a downward departure. The district court accepted the plea agreement, granted Main a modest departure and sentenced him to 84 months’ imprisonment.

Three years later, Main moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 because the Sentencing Commission had retroactively ameliorated the guideline covering crack offenses. The district court denied the motion, and the circuit affirmed.

Under the statute, a defendant is eligible for a sentence reduction only where the original sentence was “based on a sentencing range” that the Sentencing Commission has subsequently lowered. Here, however, Main’s sentence was “based on” the terms of his plea agreement, which stipulated to a sentence that was lower than that recommended by the guidelines. Under Rule 11(c)(1)(C), once the court accepted the agreement, it was bound to impose the agreed-upon sentence. Main’s sentence was therefore not “based on” the range recommended by the guideline for crack cocaine offenses.

The court rejected Main’s arguments that because his plea agreement provided for a sentencing cap, not a particular sentence, and permitted him to seek a downward departure, the sentencing guidelines still “played a role in determining his sentence.” Section 2D1.1, the particular guideline that the Sentencing Commission subsequently modified, played “no role in the sentence that Main received.”

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Saturday, August 29, 2009

Summary Summary

For your reading pleasure, here are more summary orders of interest:

In two related decisions, both captioned United States v. Salvagno, Nos. 06-4201-cr and 06-4202-cr (2d Cir. August 28, 2009), the defendants, who were father and son, complained of a confict of interest between some of their attorneys - they were employed at the same firm - at sentencing. The circuit concluded that the district court's Curcio hearing, while "not examplary" was adequate because the conflict was waived by each defendant's non-conflicted attorney, with the defendants present and "evidently in agreement."

In United St
ates v. Rodriguez-Nieves, No. 08-0783-cr (2d Cir. August 28, 2009), the court agreed that, where the the defendant was convicted of being the principal administrator of a continuing criminal enterprise ("CCE") under 21 U.S.C. § 848, his convictions of two lesser included offenses - an underlying drug conspiracy count and a conviction for basic administration of the same CCE - were unauthorized.

In United States v. Peguero, No. 07-2306-cr (2d Cir. August 19, 2009), the court vacated a sentence where the district court presumed that the guideline sentence was reasonable by saying, "I have the ability to do justice and depart [or impose] a sentence independently of the Guidelines, but my opinion is that that is reserved for really special situations, and I even then take the Guidelines into serious consideration."

Khat Man, Two

United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)

Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. In September of 2008, the court of appeals reversed his conviction on the substantive money laundering counts due to insufficient evidence, and remanded for a new trial on all of the conspiracy convictions because of an erroneous jury instruction. See “Krazy Khat,” posted September 27, 2008.

Both sides sought rehearing, and this amended opinion, which deals with the claims raised in the rehearing petitions, supersedes the original without changing the outcome. In the court’s own words, here is the difference between the original opinion and the new one:

[T] his amended opinion replaces in its entirety our earlier decision in United States v. Hassan, 542 F.3d 968 (2d Cir. 2008) (“Hassan I”), to which both parties petitioned for rehearing. Having reviewed the petitions, we have concluded that each presents at least one valid ground for granting rehearing and have amended the opinion accordingly. We grant Hassan’s request that we consider the sufficiency of the evidence for the single count of money laundering conspiracy because we agree that we are required to reach that issue since Hassan’s retrial would be barred by Double Jeopardy if the evidence presented by the government was insufficient. See United States v. Riggi, 541 F.3d 94, 108 (2d Cir. 2008). We conclude that the trial evidence was sufficient to support a conviction on this count. We decline Hassan’s invitation to revisit our conclusion that the trial evidence was sufficient to prove that he was dealing with khat containing cathinone. We grant the government’s request that we amend the opinion’s description of the elements of a Controlled Substances Act (“CSA”) conspiracy and have deleted that language in Hassan I indicating that there is an overt act requirement for conspiracies charged under the Controlled Substances Act (“CSA”). See United States v. Shabani, 513 U.S. 10, 15 (1994). We also grant the government’s request that we amend the opinion to clarify that “scienter with respect to the type and quantity of controlled substance is not required to convict a defendant under the CSA,” Gov’t Pet. for Reh’g at 5-6, but make only limited amendments as we think our decision read as a whole makes clear that we adhere to that rule. However, we deny the government’s request that we revisit our conclusion that a “conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment.” Hassan I, 542 F.3d at 991. We adhere to that conclusion. See United States v. Abdulle, 564 F.3d 119, 126-27 (2d Cir. 2009) (explaining why conviction based on cathine, rather than cathinone, is constructive amendment rather than variance). We deny the government’s and Hassan’s petitions in all other respects.


The court's latest per curiam ("PC") opinion deals with the narrow definition of "crime of violence" in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms "with the intent to use the same unlawfully against another" is not a crime of violence under that section. The 2L1.2 definition of "crime of violence" includes certain enumerated offenses, not implicated here, as well as any other offense that "has an an element the use, attempted use, or threatened use of physical force gainst the person of another." Since the New York statute prohibits the intended use of force, but not the attempted use of force, it is not covered by this definition. And, since the "categorial approach" to recidivism statutes prohibits looking back at the defendant's actual conduct, it is irrelevant that Gamez actually shot someone - twice.

It should be noted that this decision is confined to its narrow context. The 2L1.2 "crime-of-violence" definition is pretty much the only one out there that does not have an "otherwise involves" catchall. The circuit long ago held that the same New York statute is a crime of violence under this broader definition.

It is perhaps more important, then, that the court also held that being sentenced under a "significantly overstated advisory Guidelines range" constitutes plain error.


Cap’n Crunched

United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)

Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison. On appeal, he raised an unsuccessful statute of limitations claim.

The government filed the indictment against Pizzonia on May 26, 2005; since a five-year statute of limitations applied, the government had to prove that Pizzonia’s participation in the conspiracy extended past May 26, 2000.

Pizzonia’s indictment charged a broad pattern of racketeering activity encompassing the entire spectrum of Gambino malfeasance. It alleged specifically that the pattern “consisted of” seven specified predicates. The jury found that he participated in only two of them: a 1992 double-murder conspiracy and a 1994-96 gambling offense. It also concluded that these two seemingly distinct events were sufficiently related to constitute a racketeering “pattern.” Finally, although the predicates ended well before May 26, 2000, the jury concluded that Pizzonia’s participation in the conspiracy continued beyond that date.

On appeal, Pizzonia argued that because the pleading alleged a racketeering pattern that “consisted of” seven acts, this temporally limited the conspiracy to the predicates. And, because the only proven predicate acts did not extend into the post-May 2000 limitations period, he argued, his conviction could not stand.

The circuit disagreed. The court held that the temporal scope of a RICO conspiracy is not limited to the charged or proven predicate acts. “[W]here, as here, the affairs of the enterprise in which a defendant agreed to participate through a pattern of racketeering are broadly defined to encompass all its criminal money-making objectives and all means used to protect those objectives, the conspiracy does not end, as a matter of law, with the last proved predicate.” Even if the government pleads a pattern that “consisted of” or “included” specified predicate acts, a defendant’s completion of those predicates “does not, as a matter of law, dictate the end of the pattern, much less the attainment or abandonment of the conspiracy’s overall objective.” Accordingly, an indictment drafted in this way does not “limit the temporal scope of the charged racketeering conspiracy to the time-frame of those predicates.”

Here, since Pizzonia “effectively concede[d]” that there was sufficient evidence that he participated in the conspiracy, although not in a charged RICO predicate, after May 26, 2000, the court affirmed his conviction.

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Friday, August 28, 2009

On a Role

United States v. Ware, No. 07-5222-cr (2d Cir. August 18, 2009) (Kearse, Sack, Hall, CJJ)

For five months in 2001 and 2002, Ware, an attorney, ran a “pump and dump” scheme, in which entities he controlled issued fraudulent, and supposedly independent, press releases promoting two penny stocks that he owned. When other investors acted on the false releases, the stocks went up and Ware sold his shares, earning a profit of more than $200,000. He was convicted of securities and wire fraud offenses, and the district court sentenced him to 97 months’ imprisonment.

On appeal, he represented himself pro se, raising a host of trial and sentencing issues. In this long opinion, which covers little real new ground, the court affirmed the conviction, but remanded for further sentencing findings on a leadership role enhancement.

The trial evidence revealed that Ware had three associates in the scheme: Jones and Epps, two young securities traders that he hired to find small companies to promote, and to draft press releases; and a clerical assistant, Williams, who helped distribute the releases.

At sentencing, the district court imposed a four-level leadership role enhancement under U.S.S.G. § 3B1.1(a). This section applies where the defendant was an “organizer or leader of a criminal activity that involved five or more participants” or was “otherwise extensive.” Circuit precedent requires highly specific findings on leadership role: it is “not enough for the court merely to repeat or paraphrase the language of the guideline and say conclusorily that the defendant meets those criteria.” Nor is it sufficient to adopt the PSR if the “PSR itself does not state enough facts to permit meaningful appellate review.”

Here, the district court's findings were too general. The court noted that the scheme “obviously involved ... five or more participants and unknowing participants and was otherwise extensive.” By “unknowing participants” the court meant “the wire services that published [the] false press releases.” The court also noted that the scheme “took place over a period of time.”

The circuit, on plain error review, since Ware did not object to the enhancement at sentencing, had “several difficulties with this explanation.” First, the findings did not identify the “five or more” participants, and the trial record produced only “four obvious” candidates. In addition, the court faulted the district court’s inclusion of the wire services through which Ware distributed the press releases as “unknowing participants.” Under § 3B1.1(a), a “participant” must have criminal exposure, and the record did not support a finding that the wire services could be criminally liable. The district court also made insufficient findings on the alternative, “otherwise extensive,” basis for the enhancement. Its observation that the scheme “took place over a period of time,” was, “standing alone,” insufficient, since the scheme spanned only five months. Nor did Ware’s use of wire services make the activity “otherwise extensive.”

The court accordingly remanded the case for additional findings on the leadership role enhancement.


Monday, August 17, 2009

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried no mandatory minimum sentence.
Both Count One and Count Two alleged conduct that occurred on July 19, 2002.

Count Five of the indictment alleged additional crack activity occurring April 30 to May 1, 2002, and charged a violation of 21 U.S.C. § 841(b)(1)(B). This count carried a ten-year mandatory minimum - the usual (b)(1)(B) five-year term, doubled due to Parker’s prior drug felony conviction. Since § 924(c) requires that the five-year mandatory minimum be imposed consecutive to any other sentence imposed on the defendant, the district court found that Parker was subject to a 180-month mandatory minimum, and imposed that sentence.

On appeal, the circuit affirmed. While it is true that Williams holds that a § 924(c) sentence cannot be imposed on a defendant who faces a higher drug-related mandatory minimum, the circuit distinguished Williams because, here, “the predicate drug crime underlying Parker’s [§ 924(c)] conviction [did] not dictate a mandatory minimum sentence.” The drug offense that carried the mandatory minimum occurred on a different date, and the Whitley/Williams rule was therefore not “called into play.” That rule applies only to “minimum sentences for predicate statutory offenses arising from the same criminal transaction or operative set of facts.” (emphasis in original). Thus, even though Count Five carried a greater minimum sentence than that prescribed by § 924(c), Parker was still eligible for the § 924(c) sentence because he was not convicted of using or carrying a gun in connection with that count.


Summary Summary

Here is the latest collection of summary orders of interest:

In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court "should have provided a written statement of the specific reasons for its sentence."

In United States v. Giordano, No. 07-3487-cr (2d Cir. August 12, 2009), the court affirmed the decision not to resentence the defendant on a Crosby remand, even though the district court had "mischaracterized the record in rejecting" the defendant's harsh conditions of pretrial confinement - solitary confinement for 23 hours each day - as a "consideration that might justify a decision to resentence." The court's "misstatement" did not undermine it's decision not to resentence, since it also concluded that the original sentence would not have been materially different had it known at the time of the original sentencing that the guidelines were advisory.

United States v. Garcia, No. 07-3779-cr (2d Cir. August 11, 2009), found that trial counsel was not ineffective in failing to attend the presentence interview. The probation officer did not question the defendant about the offense, and the attorney reviewed the first draft of the report and had no objections to it.

Wednesday, August 12, 2009

Suffer the Little Children

United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)

In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”

Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that "(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made those findings here, the circuit affirmed.


You Can’t Bet On It

United States v. Battista, No. 08-3750-cr (2d Cir. August 6, 2009) (Walker, Wesley, Wallace, CJJ)

James Battista was part of an illegal NBA gambling operation. He pled guilty to conspiring to transmit wagering information, in violation of 18 U.S.C. §§ 371 and 1084, and his sentence included restitution to the NBA. On appeal he unsuccessfully challenged this order.


The gambling scheme began with a corrupt NBA referee, who would transmit “picks” through an intermediary to Battista, who would then place bets on those games. Battista paid the ref a fee for each game where the ref picked the winner. The ref and the intermediary each pled guilty to wire fraud, while Battista pled guilty to the wagering conspiracy. At sentencing, the district court ordered the three defendants to pay more than $ 200,000 in restitution to the NBA.

The Appeal

On appeal, Battista argued that the NBA was not a “victim” of his wagering offense and that the league’s attorneys’ fees and investigative costs were not recoverable under the restitution statutes. The circuit affirmed.

The court first was asked to determine which restitution statute applied in Battista’s case. Under 18 U.S.C. § 3663A (the “MVRA”) full restitution is mandatory for certain types of offenses, including Title 18 “offense[s] against property ... including any offense committed by fraud or deceit.” 18 U.S.C. § 3663(c)(1)(A)(ii). Offenses not covered by the MVRA are covered by 18 U.S.C. § 3663 (the “VWPA”), under which restitution is discretionary, to be imposed only after the court balances the victim’s losses against the defendant’s resources.

Here, while Battista conceded that his offense conduct involved fraud or deceit, he argued that, since the statute under which he was convicted did not have fraud or deceit as an element, the MVRA did not apply to him. It is an open question whether the MVRA applies to fraudulent or deceitful conduct that is charged under a non-fraud or non-deceit statute, but the court did not resolve it here. It found that even if the discretionary VWPA applied, restitution under was proper. The district court’s findings as to Battista’s financial circumstances were not clearly erroneous. Moreover, the court properly considered the need to treat Battista and his co-defendants equally. They pled guilty to wire fraud and thus, for them, restitution was indisputably mandatory.

Next, the court held that the NBA was properly deemed a “victim” under the restitution statutes, since it was “directly and proximately harmed as a result of the commission of” Battista’s offense.

Finally, the court concluded that the NBA’s attorneys’ fees were recoverable. The restitution statutes contain a list of the kinds of losses that are covered, including “other expenses related to participation in the investigation or prosecution of the offense.” The district court properly included in the restitution order those attorneys’ fees that were “directly related to” the investigation as “other expenses.”


Monday, August 03, 2009

Going Down!

United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)

Here, the circuit concluded that an internal BOP investigation into corrections officers’ use of force against an inmate constituted an “official proceeding” within the meaning of 18 U.S.C. § 1512. The court rejected the defendants’ sufficiency challenge and affirmed their convictions.

The case arose from the beating of an inmate by a CO in an elevator at the MDC. Two other CO’s watched the beating, although one of them finally put a stop to it, and all three were convicted of violating 18 U.S.C. § 1512(c) by making false statements in the paperwork that they were required to fill out by the BOP’s administrative procedures - various “use-of-force” memoranda.

The BOP investigates every use of force by a staff member. That investigation begins with the use-of-force paperwork, which is reviewed by an After-Action Review Committee that comprises the Warden and three other officials. This Committee must determine whether BOP policy was adhered to, and complete a report that includes its findings and a decision whether the incident requires further investigation. A use-of-force incident can be referred to the DOJ’s Inspector General, the BOP’s Internal Affairs bureau, or the FBI.

The statute at issue makes it a crime to “corruptly obstruct ... an official proceeding,” which is defined, to the extent pertinent here, as “a proceeding before a Federal Government agency which is authorized by law.” 18 U.S.C. § 1515(a)(1)(C). At issue here was whether a BOP use-of-force investigation was an “official proceeding,” since such an investigation involves neither live witnesses nor sworn testimony.

The circuit, after considering three different precedent lines that might help interpret the term, decided not to follow any of them. It ducked the broader question of “[w]hether or not agency investigations in general can satisfy the official proceeding element of subsection 1512(c)(1),” and held that, here, the “particular procedures required by the BOP” in use-of-force situations “suffice to support a conviction.” The court’s focus was on the degree of formality required. The BOP Program Statement that governs use-of-force investigations “contemplates more than a preliminary investigation; it sets forth a detailed process of review and decision-making.” Accordingly, the court held, “[b]ecause the review panel must ‘determine’ if there has been a violation of BOP policy, must make ‘findings,’ and may ‘decide’ to refer the matter to senior departmental authorities, its work is sufficiently formal to satisfy the ‘official proceeding’ element of subsection 1512(c)(1).”

The defendants also challenged - on appeal only, no objection was registered at trial - the district court’s jury charge, which was arguably overbroad, since it included all “investigations as well as other administrative functions” of a government agency in the definition of “official proceeding.” But the circuit found no plain error.

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Sunday, August 02, 2009

Car, Men, Miranda

United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)

In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he underst
ood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.

During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh that they were about to hand him over to the Marshals and that if he “wanted to make any statements this was the” time to do it. Plugh then agreed to make statements, was re-advised of and waived his Miranda rights, and confessed.

The district court suppressed the resulting statement and, on the government’s appeal, the a divided panel affirmed.

The majority first held that Plugh’s refusal to sign the advice-of-rights form constituted an “unequivocal” invocation of his right to remain silent. Although Plugh’s pre-refusal statements were “ambiguous,” his refusal to sign was a clear signal that he was not willing to waive his rights.

An invocation of the right to remain silent must be “scrupulously honored." Here, it was not. Under circuit precedent, both telling a suspect that his cooperation will be brought to the prosecutor’s attention and telling him that “now is the time” to talk constitute interrogation. Accordingly, the district court correctly suppressed the confession that was precipitated by these remarks.

In dissent, Chief Judge Jacobs disagreed with the majority’s premise that Plugh’s refusal to sign the written waiver operated as an invocation of his Miranda rights, particularly in light of his nearly simultaneous ambiguous statements.


Transmission Lines

United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)

Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960, but the circuit reversed, finding that the district court erred in explaining the scope of § 1960 in its jury instructions.

Section 1960 makes it a crime to operate an “unlicensed money transmitting business” in interstate or foreign commerce in a “State where such operation is punishable as a misdemeanor or a felony under State law.” Under New York State law, it is a crime both to receive money for transmission and to transmit it without a license. Only the second of these is covered by § 1960, however, since the federal statute does cover the receipt of money for transmission.

This was Bah’s defense. He testified that customers would bring cash to him in New York. He would take the money to New Jersey and then lawfully transmit it to Africa. But the district court erroneously charged this defense out of the case. It rejected Bah’s request for an instruction that “1960 does not make it unlawful to receive money for transmission without a license,” even as it instructed - correctly, but irrelevantly - that it was a crime in New York to be in the business of receiving money for transmission without a license.

This charge “likely misled” the jury “as to the scope of Section 1960,” and was not harmless error, since under the charge as given, “Bah’s defense at trial - that he received money in New York for transmission in New Jersey - amounted to a concession of guilt.”

Summary Summary

Here are two more summary orders of interest.

In United States v. Nash, No. 08-0136 (2d Cir. July 29, 2009), a fraud prosecution, the court remanded the case for further record development on the question whether the "10 or more victims" enhancement should apply.

United States v. Zavala, No. 08-2727-cr (2d Cir. July 27, 2009), remanded the case for findings on whether an aggravating role enhancement was appropriate. The enhancement was based on the defendants' supervising their daughter, but she was a minor for part of the time. "Specific findings" are necessary "as to acts constituting her participation in the parents' offenses after she turned 18," since a minor child is not a "participant" for the purposes of a role enhancement.

Formula 404

United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)

In this split decision, the court upheld the admission of Rule 404(b) evidence - prior firearms sales - on the issue of intent in a drug conspiracy trial. The majority did not delve too deeply into the facts; instead, it rather formulaically noted that the prior transactions showed how the relationship of trust between the defendant and his co-conspirator developed, and rebutted the defendant’s argument that his actions were the innocent acts of a friend. The court also found no error in the district court’s Rule 403 balancing.

Judge Droney dissented, giving a much more complete picture of the facts of the case. The charged conduct involved the defendant, Townsend, and his friends, Jones - a cooperating witness - and Winfree. On the day he was arrested, Townsend drove them on some errands, one of which was a stop for Jones to purchase cocaine, which Winfree had arranged. Jones then persuaded Townsend to go back to Townsend’s apartment, where Jones cooked the powder into crack.

Townsend was charged with a cocaine conspiracy, a crack conspiracy, and a firearms charge - there was a gun hidden in his car - but was convicted only of the cocaine charge.

The Rule 404(b) evidence was that three months before the drug transaction Jones - who was already cooperating with the government - made arrangements for Townsend to purchase a handgun, and that one month before the drug transaction Jones purchased a different handgun from him.

Judge Droney carefully deconstructed the proffered reasons for admitting the 404(b) evidence, and found them all lacking. As to “background,” he noted that “some particular aspect of the background or the relationship of mutual trust must be in issue and the proffered evidence must be particularly relevant to that issue.” He found none of those characteristics present here, since the charged drug conspiracy had “no similarity” to the prior gun sales, and Townsend’s role in the gun sales “was not offered to support a theory regarding his role in the drug conspiracy.”

The gun sales were also “not particularly relevant to the development of mutual trust between Jones and Townsend.” Townsend did not dispute that relationship, and admitted that he and Jones had known each other since childhood, had lived together for a time, and were very close at the time of the offense.

Judge Droney also found fault with the district court’s Rule 403 balancing, particularly since the court permitted the two guns themselves to be entered into evidence, which “likely contributed to the substantial prejudicial effect of the testimony regarding the gun sales. The impact of the handguns as full exhibits far exceeded their very low probative value.” Finally, he noted that the gun sales were initiated by Jones when he was already cooperating, further diminishing their probativeness as to Townsend’s intent to join in Jones’ later effort to purchase cocaine.

Judge Droney next found that both the limiting instructions and the final jury charge on the Rule 404(b) evidence were inadequate. They included “knowledge” as one of the issues on which the evidence could be considered, even though Townsend’s knowledge of Jones’ cocaine activity was not at issue at the trial. The district judge also cited an incorrect time period, potentially confusing the jury as to which acts or agreements could form the basis for the conspiracy conviction.

Finally, Judge Droney concluded that these errors affected the outcome, since the government had a weak case as to Townsend’s intent, the only disputed issue in the case. The primary evidence on that issue was the testimony of Jones, who was “hardly a credible witness.”

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