Wednesday, October 28, 2009

Action Jackson

United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)

Here, the circuit concluded that erroneous introduction of prejudicial “other acts” evidence required a new trial.

The Facts

Police officers responding to a “shots fired” call in Queens encountered Jackson and others outside the target apartment building. Jackson fled, and has he ran, one of the officers claimed to see what looked like the butt of a gun in his pocket. Jackson was arrested later coming out of a different building. He was unarmed, but the police found a gun in a trash can in the courtyard that separated the two buildings. Jackson was charged with being a felon in possession of that gun.

The next day, the police executed a search warrant in the target apartment and found guns, drugs, bulletproof vests and cash. Jackson was not charged with possessing those items, but at 11:15 on the night before the trial was to begin, the government moved to admit them at trial, claiming it had “eye witnesses” testimony that they were his. The government claimed that the evidence was “necessary background” and would go to “opportunity, plan and lack of mistake.”

The district court admitted it, holding that evidence that Jackson was in an apartment with “that kind of armament” is “highly relevant” and “not unduly prejudicial.” Accordingly, the government called a witness who testified that, on the night Jackson was arrested, he brought her to the target apartment so that she could use the bathroom. This was the government’s only evidence tying him to the apartment. The government also introduced into evidence photographs of all of the contraband found in the apartment, as well as four actual guns.

The Evidence Was Erroneously Admitted

The circuit reversed, finding that the evidence from the apartment was “not admissible for any proper purpose.” First, it was not proper background evidence, as it was “not particularly helpful to explain the crime.” The only crime that Jackson was charged with occurred on the street, not in the apartment, and the government did not need to introduce the contents of the apartment to explain why the police were at the building, why they pursued Jackson after he bolted, or why he was charged with possessing a gun.

The court also rejected the government’s argument that the evidence was relevant to Jackson’s opportunity or motive. These matters were not really at issue at trial, since Jackson’s defense was that he did not have a gun at all. Moreover, even though evidence that Jackson had ready and contemporaneous access to guns was relevant circumstantial evidence that he possessed the gun he was charged with, the evidence the government introduced went “far beyond what was necessary for this purpose,” and the government never argued at trial that the evidence showed opportunity.

The Error Was Not Harmless

This case presented the perfect storm of harmfulness: a weak case, improper use by the government, and truly baffling limiting instructions.

First, the circuit found the government’s case to be “by no means overwhelming.” The officer who said he saw what looked like the but of a gun in Jackson’s pocket admitted on cross-examination that he was not sure it was a gun. No one saw Jackson put anything in the trash can where the gun was found, and the gun had no fingerprints on it.

The government also misused the evidence by “invit[ing] the jury to infer that Jackson at least associated with dangerous drug dealers equipped with an array of weapons who operated a narcotics business out of a residential apartment building.” In its summation the government argued that the evidence showed “exactly what was going on that day” and “who the defendant really is.”

Finally, the district court’s limiting instructions were terrible. The court told the jury that the case had “nothing to do with a narcotics charge” and that the jury should not consider the drugs “for any reason whatsoever” because they were being admitted simply to show what was found in the apartment. The circuit concluded that there was an overwhelming probability that the jury would be unable to follow an instruction to ignore the drug evidence. Moreover, the instruction only mentioned the drugs, not the guns, leaving open the possibility that the “jury might have believed that the weapons [found in the apartment] ... could contribute to a finding that Jackson possessed the gun” he was charged with. A jury is not likely to be able to follow an instruction that evidence is “merely background” where the evidence is highly prejudicial and the government puts it “at the center of the trial.” Since that was true here, the error was not harmless.


Tuesday, October 27, 2009

Summary Summary

Two more summary orders of interest:

In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant's claim that the government illegally began tapping his phone before it obtained a wiretap order. One record was "troubling," in that it seemed to support the defendant's claim, and the government's explanation - that the record was a "data entry error" - was unconvincing. The court noted that "[i]f we were in the district court's position, we would have conducted a hearing to delve further into this bare explanation," although it was not an abuse of discretion to decline to do so.

In United States v. Carrasco-Abreu, No. 08-4420-cr (2d Cir. October 20, 2009), the court held that an alien who failed to leave the the country under an order of voluntary departure and was removed by the immigration authorities years later, was still "deported" within the meaning of the illegal reentry statute.

Drug Abuse

United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)

Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions - which it termed “propensity evidence in sheep’s clothing” - during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.

McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.

The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the defendant in the same category of crime.” In fact, where the government offers the evidence to establish knowledge or intent it must show a “similarity or connection between the two acts that makes the prior act relevant.” But, because of the risk that a jury will engage in “generalized reasoning about a defendant’s criminal propensity” such evidence “merits particularly searching, conscientious scrutiny,” particularly when it involves prior convictions, as opposed to other bad acts. Prior convictions should only be admitted after a careful Rule 403 balancing.

Here, there was no indication that the district court “engaged at all in the Rule 403 inquiry, let alone the required conscientious one” and the circuit would not presume that the district court “appreciated the seriousness of the risk that introducing the convictions would undermine the fairness of the trial.” While it was true that McCallum did not clearly indicate that the issues of knowledge or intent would not be disputed, which rendered them “sufficiently in dispute for the similar acts evidence to be relevant and ... admissible,” there was no basis for the district court to find any sort of probative need. There was extensive testimony from McCallum’s co-conspirators about the operation of the conspiracy, and the government introduced drugs seized from the apartment they shared along with extensive audio and video surveillance. “Given all of this evidence, we are at a loss to understand how the court or the government could believe that the prior convictions were necessary to prove ... intent and knowledge and that they passed muster under Rule 403.” It was accordingly an abuse of discretion to admit the convictions.

The error here was harmless in light of the government’s “indisputably strong” case against McCallum. The court warned, however, that in a “different case, in which prior convictions were admitted but the government’s other evidence was not overwhelming, or where the other harmless error factors tilted more strongly in the defendant’s favor, or where the government’s summation emphasized the prior convictions, a different result could well be indicated.”

PC World

Here are the two most recent PC’s.

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court’s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term “intentional” that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court’s chosen language - that the defendant’s act must have been the product of his “conscious objective rather than the product of a mistake or accident” was not error. The appellate court was equally unimpressed with the district court’s alternative reason for granting a new trial: the uncontested use of a general verdict form. The form was not error, nor were the court’s instructions on how to consider the relationship between the counts.

In United States v. Thrower, No. 08-2016-cr (2d Cir. October 14, 2009)(Parker, Wesley, CJJ, Restani, JCIT)(per curiam), the court resolved an open question by holding that larceny from the person under N.Y. Penal Law § 155.30 (McKinney Supp. 2009) constitutes a “crime of violence” for the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2006) (“ACCA”). Larceny that involves a physical nexus between the victim and the property creates a risk of violent confrontation. Moreover, the offense is “roughly similar” to burglary - which is specifically listed in ACCA - in that it is “as inherently violent and aggressive.”

Wednesday, October 14, 2009

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils - former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud - the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court fist had to consider whether the district court correctly handled the resentencing. Under circuit precedent, where a conviction on one or more counts is overturned on appeal, the circuit’s “default rule” is that the case should be remanded for a de novo resentencing. Here, the district court viewed this rule as too “mechanical,” and instead treated the reversal of a single count of this multi-count indictment as a “sentencing error,” not a “conviction error.” It therefore conducted only a limited resentencing. Even so, however, the court reduced each defendant’s sentence by three years and noted that, alternatively, it would have done the same at a de novo resentencing.

The circuit held that the district court’s treatment of the remand was error. When any part of a conviction has been overturned on appeal “a district court ... is required to resentence de novo [and] must reconsider the sentences imposed on each count.” Here, however, the error was harmless, in light of the district court’s alternative ruling.

The court then turned to the substantive reasonableness of the resulting sentences. The court’s last decision to discuss meaningfully this issue, the en banc in Cavera, left us with a standard that was fairly amorphous. “[W]e will set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.”

Here, the court gave some more structure to that language. First, it insisted, as it has before, that substantive reasonableness review is not a “rubber stamp.” It then likened the standard for substantive reasonableness to similar standards that apply in other situations: the “manifest-injustice” standard for granting Rule 33 motions and the “shocks-the-conscience” standard for intentional torts by state actors. All three standards are deferential to district courts and provide relief “only in the proverbial ‘rare case.’” They are also “highly contextual,” which means that they “do not permit easy repetition in successive cases." And, finally, they are “dependent on the informed intuition of the appellate panel that applies these standards.” All told, these standards provide a “backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

Under these principles, the court had “no trouble” concluding that the Rigas’ sentences were substantively reasonable. The court noted that stiff Guideline sentences for white collar crimes reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the Rigas’ crimes were specifically intended to create a false picture of profitability at Adelphia, even for professional analysts, and were motivated by the defendants’ personal financial circumstances and outright greed.


Sunday, October 11, 2009

Summary Summary

Here's a fairly large crop of summary orders of interest.

In United States v. Smith, No. 07-5740-cr (2d Cir. October 8, 2009), the court agreed that it was error to admit a picture of the defendant's tattoo - which depicted the skull, arms and ribcage of a skeleton firing a weapon - in a homicide case. Other than to show propensity, the evidence was irrelevant. The error, however, was harmless.

In United States v. Jackson, No. 08-0541-cr (2d Cir. October 2, 2009), the court found no error in allowing the government to prove two assaults through hearsay at a supervised release violation hearing. The government justified the hearsay by asserting that the victims were no longer cooperating with the authorities - one had recanted and the other had indicated that she was afraid of the defendant. The court found that the government conclusively demonstrated the reliability of the hearsay.

In United States v. Tejada, No. 07-3419-cr (2d Cir. September 30, 2009), the government, on its own initiative, noted that a seven-year consecutive § 924(c) sentence was illegal under Williams and agreed to a remand.

In United States v. Seifer, No. 08-5864-cr (2d Cir. September 30, 2009), the court affirmed the denial of the defendants' attorneys fees under the Hyde Amendment. But the court also acknowledged the district court's criticism of the government's conduct in the case, "criticism that the government appears to concede was warranted."

United States v. Mends, No. 08-0158-cr (2d Cir. September 17, 2009), vacated a guilty plea to aggravated identity theft under Flores-Figueroa, because the defendant did not allocute to knowing that he was using the identification of an actual person.

Murder, She Dotes

United States v. Young, No. 07-2729-cr (2d Cir. October 8, 2009) (Jacobs, Walker, Leval, CJJ)

Defendant Laval Farmer was a member of the Bloods street gang, charged with a 2001 gang-related murder and and 2002 gang-related attempted murder, along with various associated firearms offenses. At least three years before the charged offenses he acquired the unfortunate nickname of "Murder." At his trial the court allowed witnesses to refer to him by that name and the prosecutors to repeatedly use it in highly inflammatory ways. As a result, the court of appeals vacated the attempted murder conviction, but let the murder conviction stand based on the strength of the evidence.


In July of 2001, members of a rival gang, the Crips, assaulted two members of Farmer's Bloods crew. Farmer took it upon himself to avenge the beatings. Believing that a fourteen-year-old boy wearing blue clothing was a Crip, Farmer shot and killed him. It turned out that the boy was a popular fourteen-year-old, and not a gang member.

A few months after the shooting, Farmer moved to Pennsylvania and associated with another Blood, Jaquel Patterson. Farmer and Patterson had a strained relationship; Patterson frequently disparaged Farmer's Bloods bona fides, and there were occasions where Patterson did not honor the Bloods' code of behavior during incidents involving Farmer. In July of 2002, Farmer decided to teach Patterson a lesson. He entered Patterson's bedroom with a gun, forced Patterson to apologize and plead for his life, then shot him in his body, legs, arms and face. Patterson survived.

The Trial

At trial, Farmer moved to strike the nickname "Murder" from the indictment and preclude any reference to him by that name at the trial. The district court denied these requests, and Farmer was referred to as "Murder" throughout the trial. The government referred to him by that name at least three times in its opening, and several times more in its summation, suggesting that he was trying to "live up to his name of Murder." Worse still, in the rebuttal summation the government used the name nearly thirty times, repeatedly tying it to Farmer's offense conduct.

The Appeal

On appeal, the circuit was highly critical of the government's conduct.

It first surveyed the case law on the use of nicknames, holding that a trial court need not preclude the use of a suggestive nickname where "it help[s] to identify the defendant, connect him to the crime, or prove other relevant matter, or when coherent presentation of the evidence entail[s] passing reference to it," as long as the name's probative value outweighs its potential for prejudice.

Here, it was error for the district court to permit the government to elicit testimony of Farmer's nickname, except for references by witnesses who knew him by that name. Farmer's identity was not at issue and his nickname had "no legitimate relationship to the crimes charged." Rather, the name strongly suggested "a propensity to commit particularly heinous crimes, including the very offenses charged in the indictment."

But the more serious problem here arose from the "prosecutors' frequently repeated, gratuitous invocation of Farmer's nickname in their addresses to the jury, uttered in a context that, in effect, invited the jurors to infer that the defendant had earned the nickname among his gang colleagues as a a result of his proclivity to commit murder." Here, the government's conduct amounted to a "flagrant abuse." Even so, however, the court did not grant Farmer a new trial on every count.

The 2001 murder was "supported by such overwhelming evidence that conviction was a certainty." For the 2002 attempted murder, however, the evidence was "far less conclusive." The shooting was not witnessed, and it was plausible that Farmer acted in self-defense. Alternatively, there was a view of the evidence that Farmer shot Patterson to settle a personal score, not to elevate his status within the Bloods, as required by the statute of conviction. The court accordingly vacated the counts associated with the attempted murder and remanded the case for a new trial on those counts only.

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Plea Circus

United States v. Carreto, No. 06-2295-cr (2d Cir. October 8, 2009)(Parker, Livingson, CJJ, Chin, DJ)

Three defendants were charged with various offenses relating to a scheme in which young women were smuggled into the United States from Mexico and forced to engage in prostitution. Soon after they were indicted, the government offered a "global" plea agreement with a February 18, 2005, deadline. Two days before the deadline, the district court had a conference to address whether the defendants would accept the plea. At that point, they were still undecided. The next day, the defendants rejected the offer and the government revoked it. The court set an April trial date.

On the scheduled date, the court selected and empaneled a jury. Just as the trial was about to commence, however, the defendants indicated that they were ready to plead guilty to the entire indictment without an agreement. The court closely examined the defendants and their attorneys about whether they understood the implication of their pleas. Each defendant expressed satisfaction with his attorney - one of them had previously repeatedly asked for a change of counsel - and read aloud a statement acknowledging his guilt.

About one year later, the defendants appeared for sentencing, but had by then filed pro se motions to withdraw their pleas. The motions alleged that the defendants had not been adequately advised of their right to testify at trial, the court did not verify that the pleas were voluntary, and that their lawyers were ineffective in failing to obtain documents from Mexico. As to this last point, the attorneys told the court that they had just learned of potentially exculpatory transcripts from a Mexican trial in which the victims had testified.

The district court denied the motions, and the circuit found no abuse of discretion. The defendants did not assert their innocence in their plea withdrawal motions, did not move to withdraw their pleas until a year after they had been entered, and the government would have been prejudiced by a withdrawal after more than a year's delay. More generally, the defendants did not show a "fair and just reason" for withdrawing their pleas. Even the Mexican transcripts did not "alter the fact that [the] defendants had knowingly and voluntarily pled guilty to the charges against them." The Mexican trial took place before the victims came to the United States and thus would not have "significantly undermined" the defendants' admissions.


PC World

This set of per curiam decisions deals with mes rea elements.

In United States v. Romero-Padilla, No. 08-1817-cr (2d Cir. October 7, 2009) (Calabresi, Cabranes, Hall, CJJ), the court held that 21 U.S.C. § 959(a), a drug importation statute, requires the government to prove that the defendant actually, as opposed to constructively, knew that a controlled substance he distributed or manufactured would be illegally imported into the United States.

United States v. Grandt, No. 08-1834-cr (2d Cir. October 1, 2009) (Parker, Wesley, CJJ, Murtha, DJ), looked at 18 U.S.C. § 2421, one of the provisions of the Mann Act. This section makes it a crime to "knowingly" transport an individual in interstate commerce with the intent that the individual engage in prostitution. Under Flores-Figueroa v. United States, 129 S.Ct. 1886 (2008), the district court should have charged the jury that it had to find that defendants knew that individuals were being transported for prostitution.