Wednesday, December 16, 2009

SORNA Doom

United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

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Role Away

United States v. Labbe, No. 08-0673-cr (2d Cir. December 4, 2009) (Newman, Pooler, Katzmann, CJJ)

About a week before Labbe’s sentencing, the district court issued a written Sentencing Opinion describing the sentence it was likely to impose. The Opinion included a 4-level role reduction for Labbe’s “minimal” participation and announced that “Labbe is hereby sentenced to ... 57 months.” The Opinion noted, however, that this was “subject to modification at the sentencing hearing.”

Before sentencing, the government sent a letter to the court objecting to the role reduction, but at the sentencing hearing itself the defense focused its arguments primarily on the loss calculations, apparently assuming that the judge had decided to keep the role reduction. The judge asked the government a few questions about the relative participation levels of Labbe and his co-conspirators, then announced that the “government’s argument and its reading of the guidelines with respect to the minor and minimal participants is right.” He imposed a sentence 30 months longer than that contained in the Sentencing Opinion.

On appeal, Labbe argued that the district court’s change of heart was not supported by adequate findings. The court of appeals agreed. It held that the Sentencing Opinion had given Labbe an “expectation” that he would be sentenced to 57 months. Under the advisory Guidelines, a court need not give notice of its intention to impose a non-Guideline sentence. But here, the Sentencing Opinion created an “expectancy” that was more like that created by the mandatory Guidelines and “gave rise to the need for notice that a significant change was likely” so that Labbe would have a chance to oppose the contemplated change.

The court did not rule on the merits because it concluded that the district court’s findings on the issue were insufficient for appellate review. The appellate court was uncertain whether the judge changed his mind because he (1) attributed more misconduct to Labbe than he had originally found, (2) was interpreting the guideline differently than before, or (3) had simply reassessed the significance of the facts under the same legal standard that he had used in the Sentencing Opinion.

The court accordingly remanded the case for a de novo sentencing, at which the defense - now alerted to the judge’s inclinations - would have a “full opportunity to argue for the adjustment.”




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Summary Summary

It's been a while but at last the court has issued enough summary orders of interest for another post. Here they are:

In United States v. Madarikan, No. 08-5589-cr (2d Cir. December 16, 2009), the court found a Confrontation Clause violation in the admission into evidence of a Certificate of Nonexistence of Record at an illegal reentry trial. Here, however, the error was harmless because there was other evidence that the defendant kacjed the requisite advance permission - her own testimony conceded the point.

In United States v. Venkataram, No. 08-3637-cr (2d Cir. December 16, 2009), the district court erroneously imposed five-year terms of supervised release on Class C and D felony convictions. The court modified the Judgment by reducing the terms to three years.

In United States v. Ramos-Soto, No. 08-2381-cr (2d Cir. December 1, 2009), the court remanded for clarification, where the sentencing record was ambiguous as to whether the district court believed that it lacked the authority to impose a non-Guideline sentence in an illegal reentry case based on the disparity with “fast-track” districts.

Tuesday, December 15, 2009

Money Disorder

United States v. Garcia, No. 08-1621-cr (2d Cir. December 1, 2009) (Jacobs, Sack, Lynch, CJJ)

In Cuellar v. United States, 128 S.Ct. 1994 (2008), the Court held that, for the crime of transportation money laundering under 18 U.S.C. § 1956(a)(2)(B)(i), the government most prove more than that the money was hidden during its transportation. Rather, it must prove that the “purpose,” not merely the effect, of the transportation was to conceal or disguise the nature, location, source, ownership or control of the money. Thus, the government must prove not just how the money was moved, but why it was moved. The Second Circuit has held that this holding applies equally to “transaction” money laundering under 18 U.S.C. § 956(a)(1)(B)(i), which makes it a crime to engage in certain financial transactions, including the transfer or delivery of cash, for those same purposes.

Here, the court held that, in light of these principles, Garcia’s guilty plea to transaction money laundering lacked a factual basis.

During his allocution, Garcia admitted that he “went to get some money” that he believed was dirty. But when the judge asked whether he understood that his picking up cash “was in fact part of a larger scheme to conceal or disguise the source or ownership of the funds,” he replied “no.” His counsel then proffered that Garcia agreed to pick up the money and deliver it to someone else knowing that the funds were the proceeds of illegal activity and would not be declared as income. He also proffered that Garcia concealed the funds in a cargo truck that was also carrying legitimate cargo. After confirming that Garcia knew that the packages of money were wrapped so as to conceal their contents, the district judge accepted his plea.

Although Garcia challenged the sufficiency of his plea for the first time on appeal, the circuit vacated the plea. The court first noted that Garcia's acknowledgment of his understanding of the nature of the charge was not enough. The particular charge was “[]complicated and [not] readily understandable by the average layman.” Moreover, Garcia’s allocution “demonstrated actual confusion about the critical concealment element of the offense.” Nothing in his colloquy showed his understanding “that the transaction [had to] be designed to conceal a listed attribute of the funds - or [contained] an admission that Garcia had such a purpose.”

Having found error, the court had no trouble finding plain error here: “the additional elements necessary for Rule 52(b) relief flow naturally under the present circumstances.” Although Cuellar was not decided until after the plea, whether an error is “plain” is “determined by reference to the law as of the time of the appeal,” by which time it was clearly plain. And the error affected Garcia’s substantial rights. The record presented a “reasonable probability that, had Garcia fully understood the nature of the crime he was charged with, he would not have pled guilty.”

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Thursday, December 03, 2009

Fare is Foul

United States v. Rodriguez, No. 08-2805-cr (2d Cir. November 30, 2009) (Newman, Calabresi, Katzmann, CJJ)

This interesting opinion concludes that a dispute over a taxi fare did not violate the Hostage Taking Act, 18 U.S.C. § 1203.

Background

In 2005, Azucena Gonzalez Mendez was smuggled into the United States from Mexico. She was driven from Arizona to Las Vegas, then flew to Long Island, where her husband, Julio Perez, who lived in New Jersey, was to meet her and drive her home. When she arrived at the airport, however, Mendez, could not find her husband.

Defendant Rodriguez saw Mendez and told her that it was not safe for her to wait in the airport, because there were immigration officers present. Rodriguez pretended to call Mendez’ husband, telling her that there was no answer, then offered to give her a ride. He brought her to a van, which was driven by co-defendant Reynoso. While Mendez was waiting in the van, she saw her husband arrive at the airport, but Rodriguez told her not to get out because immigration officers were following them.

She then reluctantly agreed to let them drive her home. Reynoso drove off with Mendez, and Rodriguez met up with them later at a convenience store. In the meantime, he called Mendez’ family and said that he would bring Mendez home. The family told him not to, but Rodriguez insisted. Rodriguez then spoke directly to Perez, telling him that he was a Customs Service employee who had directed Mendez to car for her own safety. Rodriguez later told Perez that she was on her way to New Brunswick, New Jersey.

After several more conversations with Perez, Rodriguez told Perez to make a financial arrangement with the person driving Mendez, and they agreed to meet at a service area on the Garden State Parkway. Rodriguez, Reynoso and Mendez were the first to arrive there, and waited in an employee parking lot. Just after 9:00 p.m., Perez arrived. Mendez tried to leave the van, but Rodriguez would not let her, telling her that first the driver had to speak with her husband. Perez demanded that they let Mendez out, but they said they would not release her until Perez paid $475 for the ride.

When Perez said that he would not pay anything, Rodriguez threatened to call the police. Perez said that he would call the police himself, and did so, at 9:17. Ten minutes later, New Jersey state troopers arrived, released Mendez and arrested Rodriguez and Reynoso. At total of fifteen minutes elapsed between the demand for the $475 and Mendez’ release; during most of that time, they were all waiting for the police to arrive.

After a jury trial, the defendants were convicted of transporting an illegal alien, not challenged on appeal, and one count of violating the Hostage Taking Act.

The Circuit’s Ruling

On appeal, the defendants challenged both the applicability of the Hostage Taking Act to their conduct and the sufficiency of the evidence. The court agreed that the evidence was insufficient.

First, after a long discussion, the court concluded that § 1203 can be applied in cases that are not linked to international terrorism, even though the treaty that inspired the legislation was specifically direct to acts of terrorism. But the court went on to note that the statute’s original purpose should “serve as a frame of reference to caution against stretching the coverage of the Act.”

In concluding that the evidence was insufficient, the court noted that the statute required the government to prove that Rodriguez and Reynoso “detained” Mendez and continued to do so to compel her husband to pay the taxi fare. Moreover, the case law requires that the confinement be “for an appreciable period of time.” Here, the relevant period of time should not be measured from the moment that Mendez was first confined at the airport. While this is when the alien transportation offenses of which the defendants were convicted started, it was not the starting point of the hostage taking.

Here, the defendants did not try to compel Perez to pay money for his wife’s release until he arrived at the service area, and the confinement following the demand for payment “lasted at most fifteen minutes.” Rodriguez’ earlier efforts to get Perez to “make an arrangement” with Reynoso could not reasonably be deemed a demand for payment for Mendez’ release. Accordingly, the detention of Mendez for the purpose of compelling Perez to pay for the ride did not begin until the demand for payment was made at the service area.

The fifteen post-demand minutes that Mendez was confined in the taxi at the service area, without any injury or threat of injury, was not an “appreciable period of time,” and hence was “not sufficient to establish a Hostage Act violation.” This is particularly true since, for most of that time, Mendez, the defendants and her husband were all waiting for the police to arrive. In short, “confinement incident to a taxi fare dispute” was not “the confinement of a hostage proscribed by” § 1203.

The court accordingly reversed the defendants’ Hostage Act convictions and remanded the case for resentencing on the alien transportation convictions.

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