Monday, March 29, 2010

High Sierra

United States v. Sierra, No,. 08-2761-cr (2d Cir. March 29, 2010) (Jacobs, Miner, Livingston, CJJ)

Gustavo Sierra pled guilty to one count of drug trafficking and one count of money laundering. The drug count involved 21 kilograms of heroin, while the money laundering count involved the proceeds of the sale of between 2 and 3.5 kilograms. Sierra’s presentence report calculated the base offense level for the money laundering count by using the total amount of the drugs involved in the drug trafficking count. With adjustments, this produced a sentencing range of 135-168 months.

Sierra objected, arguing that the guideline range for the money laundering count should be based only on the drug quantity alleged in that count, which would produce a lower offense level. The district court disagreed, used the higher range, and sentenced him to 135 months’ imprisonment.

On appeal, the circuit affirmed. It characterized Sierra as a “direct money launderer,” which means that he both laundered the money and committed the offense that produced it. And the guideline for direct money launderers, § 2S1.1(a)(1), clearly specifies that the base offense level should be the offense level “for the underlying offense from which the laundered funds were derived” if the defendant either committed the underlying offense or would be accountable for it under the usual relevant conduct principles. Here, the “underlying offense” was indisputably the 21-kilogram heroin conspiracy. Thus, under this instruction, the offense level for that conspiracy became the base offense level for the money laundering count.

The court also rejected Sierra’s novel argument that the guideline’s reference to relevant conduct principles should mitigate his sentence, rather than increase it, because he in fact laundered only the proceeds of 2 to 3.5 kilograms and not the full 21. Under the relevant conduct guideline, a defendant is accountable for “all quantities of contraband with which he was directly involved”; thus, that a defendant “laundered a lesser amount of funds than the value of his entire drug operation” is “immaterial.” Sierra’s argument would also have the effect of “underminin[g] the express purpose of” the money laundering guideline, which is to punish direct money launderers “one to four levels greater than the Chapter Two offense level for the underlying offense.” Finally, the argument is precluded by the language of the guideline itself which, for direct money launderers, does not refer to the value of the laundered funds in any way. Accordingly, Sierra’s guidelines were correctly calculated.

Sierra also argued, for the first time on appeal, that his sentence created an unwarranted disparity with his co-defendants. But the court disagreed, calling the disparities warranted. His co-defendants either had plea agreements, pled guilty only to one of the counts, were “exceptionally honest in admitting to the crimes," or had unique personal circumstances, such as serious illness, that reduced their risk of recidivism.

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Saturday, March 27, 2010

Summary Summary

This has been a busy week in the circuit, and not just for published opinions. There are also three summary orders of interest.

United States v. Harrington, No. 09-1160-cr (2d Cir. March 23, 2010), has two noteworthy features. First, at this gun possession trial, the district court allowed the defense to present evidence of, and charged the jury on, "innocent possession," in light of the defendant's claim that he possessed the gun only to turn it in to the city's "Toys for Guns" program. Second, the circuit noted that it was error, albeit harmless, to admit, under Rule 404(b), evidence of a prior robbery conviction to rebut this defense, where the certificate of conviction did not indicate that a firearm was used in the robbery.

United States v. Townsend, No. 09-1283-cr (2d Cir. March 25, 2010), considered whether evidence used against the defendant at a supervised release violation hearing was obtained in violation of the Fourth Amendment, thus implicitly agreeing that the Fourth Amendment applied at revocation hearings.

And, in United States v. Hughes, No. 09-0770-cr (2d Cir. March 26, 2010), the court left open the possibility that some crack cases where there was a Rule 11(c)(1)(C) plea agreement might nevertheless be amenable to a § 3283(c)(2) motion. The court also did not enforce the plea agreement's § 3582(c)(2) waiver because the government did not raise waiver as a a defense.

What A Difference A Day Makes

United States v. Janvier, No. 08-5978-cr (2d Cir. March 26, 2010)(Jacobs, Lynch, CJJ, Restani JCIT)

On July 21, 2008, the last day of Janvier’s three-year supervised release term, the probation department submitted a petition to the district court alleging that Janvier had violated the conditions of his supervised release. That same day, the court checked the box on the probation form ordering the “[i]ssuance of a [w]arrant.” The warrant did not actually issue, however, until July 23, 2008. When Janvier appeared in court on the petition he argued that the court lacked jurisdiction to revoke his release because his supervised release term had already expired. The district court disagreed and, after he admitted violating his supervised release, sentenced him to five months’ imprisonment to be followed by thirty-one additional months of supervised release.

On appeal, the circuit reversed based on the “plain language of the governing statute” which only extends the court's jurisdiction beyond the expiration of supervision if a warrant issues before the supervision period ends.

Courts have long asserted jurisdiction over violation proceedings beyond the expiration of the term, even before there was statutory authorization for it. Generally, courts identified either the filing of the revocation petition or a similar notification to the releasee as the event that would trigger an extension of jurisdiction. As long as the triggering event occurred during the term of release, a court would retain jurisdiction over the matter for the time necessary to adjudicate it.

In 1994, Congress made this authority explicit by enacting 18 U.S.C. § 3583(i) for supervised release and § 3565(c) for probation. The supervised release statute provides that a court’s power to adjudicate a violation petition extends beyond the expiration of the supervision term if, “before its expiration a warrant or summons has been issued” on the basis of a violation charge. This section plainly “identifies the issuance of a warrant or summons during the term of supervised release as the condition for extension of the court’s power to adjudicate a violation charge” and by its very terms applied in Janvier’s case.

The circuit rejected the government’s arguments to the contrary. First, the government argued that the statute is “not exclusive”; it identifies “one particular set of circumstances” but does not preclude retention of jurisdiction under other, analogous circumstances.” While it is true that Congress could have made the exclusivity of the condition for extension of jurisdiction “even clearer” by using a phrase like “if and only if,” the language it chose is “more than clear enough.” Where “a power is granted upon a condition, it can hardly be argued that the power also exists when the condition is unmet.”

The government also argued that § 3583(i) “did not modify” the pre-enactment state of the law. The circuit again disagreed. The predominant view before the enactment of the statute was that the triggering event for extension of jurisdiction was the filing of the violation petition, not the issuance of the warrant. That Congress chose a different event “reads more as a rejection than as an endorsement of that aspect of the prior case law.”

Finally, the government argued that the appellate court should deem ordering the issuance of a warrant to be the same as the issuance of the warrant, and thus find the statute satisfied here. From a “policy standpoint” it might have made more sense to make the judicial officer’s finding of probable cause the triggering point and not the “purely ministerial action of the clerk of the court in actually issuing the warrant.” But the appellate court was “unwilling to rewrite the statute to say something that it does not.” The statute provides that the extension of jurisdiction occurs when a warrant or summons “has been issued.” Here, in contrast, the court merely “directed” the issuance of the warrant. That order did not “issue” the warrant - it directed someone else to issue one - and was not carried out until two days later, after Janvier’s supervision had expired.

Nor does this reading of the statute lead to “absurd or impracticable results.” Compliance with the literal terms of § 3583(i), even for a violation that occurs on the very last day of the release term is a “simple matter.” If the probation officer here had “simply taken the trouble to walk the signed form from the judge to the clerk’s office” there would have been nothing to prevent the warrant from being issued on the same day the petition was presented. Alternatively, “there is no reason why the judge could not be presented with a form warrant or summons ready for signature” along with the petition. “Given the ease with which the statute can be satisfied, there is no reason to contemplate strained readings that would blur the bright line provided by Congress.”


All ended well for Janvier. Except that he served his entire prison sentence - and a big chunk of the new supervised release term - before he won his appeal. According to the district court docket sheet, the judge denied his application for bail pending appeal noting that “[t]he proposed appeal does not raise a substantial question of law or fact likely to result in a recusal [sic] or a sentence reduction.” And there is no indication in the appellate docket sheet that he moved for bail in the circuit.


The Boss From Hell

United States v. Sabhnani, No. 08-3720-cr (2d Cir. March 25, 2010) (Wesley, Livingston, CJJ, Restani, JCIT)

The defendants, husband and wife, were convicted of forced labor, harboring aliens, peonage and document servitude, both substantive and conspiracy. The wife received an eleven-year sentence, while the husband was sentenced to forty months. The court also imposed fines and restitution and ordered the forfeiture of their home. The defendants raised several issues on appeal, not all of which are summarized here, but won relief only on a restitution issue.


The facts of this case are quite disturbing. The defendants lived very comfortably, along with their children, in a large house on Long Island from which the husband ran a successful export business. Beginning in 2002, with the help of the wife’s mother, the defendants brought two women to the United States from Indonesia to serve as household servants. Their treatment of the women was truly horrific. The wife would regularly abuse them physically - by, inter alia, depriving them of sleep, beating, starving and mutilating them - and psychologically - by insulting and threatening them and their families back in Indonesia. The husband’s role was more passive - he would report the women's supposed violations of the house rules to his wife, then let her do the dirty work.

The situation lasted until 2007, when one of the women finally mustered the courage to escape and summon help. A search of the home revealed substantial physical evidence, including blood and physical instruments that were used to beat the women.

The Appeal

The circuit affirmed the convictions and sentences, but remanded for recalculation of the restitution.

1. The Restitution Issue

In peonage or forced labor cases, 18 U.S.C. § 1593 provides for mandatory restitution of the full amount of the victim’s losses, which it defines as “the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act” (the “FLSA”). Here, the district court concluded that the two women worked twenty-four hours a day when the defendants were at home and eight when they were on vacation. It determined a minimum wage amount, then multiplied that by a statutorily determined factor to calculate overtime pay. After subtracting the amount that had been actually sent to the victims’ families, the court doubled the total under a FLSA provision providing for “liquidated damages” for minimum wage violations.

The defendants first argued that the victims were not entitled to overtime pay under the FLSA, and thus that the restitution amount was incorrect. The circuit agreed. The FLSA provides for overtime for employees who work more than forty hours per week, and this guarantee covers domestic workers. But the overtime provision does not apply to domestic employees who reside in the household. Reading the plain language of the statute, the court easily concluded that the victims here “resided” in the defendants’ house. The trial evidence showed that they lived in the house and did so as permanent residents for a considerable time. Moreover, the ordinary meaning of the term "residence" applies even, when the “residence” is involuntary, such as when a person “resides” in prison. Accordingly, since the victims were not statutorily entitled to overtime pay, the circuit remanded the case for recalculation of the restitution amount. It noted, however, that the residence exception does not excuse the employer from paying a live-in worker for all hours worked. Thus, on remand the district court need not deviate from its decision to award the victims pay for working twenty-four hours per day.

The defendants also contested the district court’s award of liquidated damages, arguing that the relevant FLSA provision, § 216(b) did not apply to restitution awards under 18 U.S.C. § 1593. The circuit disagreed. The restitution provision fixes the amount owed as the greater of the value to the defendant of the victim’s services or the value of the labor as guaranteed under the “minimum wage and overtime guarantees” of the FLSA. The circuit held that the FLSA’s provision for liquidated damages counted as part of the “value of the victim’s labor.” First, the restitution provision’s reference to the FLSA does not limit the value calculation to the FLSA's provisions under which wages and overtime are calculated. Moreover, § 216(b)’s double damages provision is triggered automatically by a violation of the FLSA's wage and overtime provisions. Third, § 216(b) is “explicitly and exclusively tied to violations of the minimum wage and overtime rules.” Thus, under § 1593, the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of FLSA includes the liquidated damages under § 216(b).

This is so even though the liquidated damages provision can be dispensed with if the employer’s FLSA violation was undertaken in good faith. This carve-out does not mean that the liquidated damages is not part of the value of the victim’s labor that the FLSA guarantees. “The possibility that a judge may in narrow circumstances relieve an employer of its obligations to pay [does not alter] Section 216's general command that liquidated damages be paid."

2. Other Sentencing Issues

A. The court rejected the wife’s contention that enhancements for both “serious bodily injury” and the use of a “dangerous weapon” constituted impermissible double counting.

B. Both defendants contested the “vulnerable victim” enhancement, arguing that because Congress took into account a victim’s vulnerability in enacting the criminal statutes under which they were convicted, the guideline under which they were sentenced, § 2H4.1, implicitly incorporated that vulnerability, and thus the victims here were not “unusually vulnerable.” They were, rather, the “prototypical victims Congress aimed to protect.”

The circuit disagreed, even though it agreed that the congressional findings behind the statutes included findings that persons with some of the same characteristics as these victims were more likely to be victims of the crimes of forced labor, peonage and document servitude. But neither the offense guideline nor the vulnerable victim guideline supported the defendants’ argument. The offense guideline itself specifies no victim-related factor that, under the commentary to the vulnerable victim guideline, would preclude application of the enhancement.

3. Trial Issues

A. The appellate court rejected, inter alia, the defendants’ claim that the district court should have granted their motion for a change of venue due to prejudicial pretrial publicity. The publicity was driven largely by coverage of court proceedings. Thus, the prosecution's reported comments, some of which were inflammatory, were proper given the litigation context in which they were made. Moreover, the press also reported on comments of the defendants’ attorneys. Nor was the press coverage “so pervasive and prejudicial as to have created a reasonable likelihood that a fair trial could not be conducted.” Finally, there was a searching voir dire of prospective jurors that the defendants did not object to as inadequate.

B. The husband challenged the district court’s jury instruction on aiding and abetting which, in one place, indicated that liability might attach for a “failure to act.” This was, arguably, error, since none of the charges on which he was convicted was predicated on a failure to act, and he had no common law duty to act. Omissions may serve as the basis for criminal liability only if there is an affirmative duty to act, and this is equally true for aiding and abetting. But here, the complained of language was
“not inaccurate” - it was “simply extraneous to this case.” And the “charge as a whole” repeatedly made clear that the jury had to find that the husband “by some act” sought to make his wife’s crimes succeed.

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A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering
in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.


1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern of racketeering activity. It described the structure and purpose of the Family and Basciano’s role - he started as an associate and rose to acting boss. The 2003 Indictment alleged six predicates - three homicide-related offenses, a marijuana distribution conspiracy, an illegal lottery, and an illegal sports betting ring.

In 2007, a jury convicted Basciano of all counts and found that all of the predicates had been proved. The judge sentenced him to life imprisonment.

2. The 2005 Indictment

In the meantime, after Basciano’s 2004 arrest, another Family member told the government that Basciano was continuing his criminal activity from prison. He had ordered the murder of one person, and was actively soliciting the murder of an AUSA. While Basciano was awaiting retrial on the 2003 Indictment, the government filed the 2005 Indictment, which it then superseded several times. In the version at issue here, it charged Basciano with substantive racketeering on behalf of the Bonanno Family between February 1997 and June 2005. It described the Family as a racketeering enterprise and repeated the 2003 Indictment’s allegations about Basciano’s role, although it gave more detail.

The pattern it alleged included eleven racketeering acts, although Basciano was named in only five of them. The 2005 Indictment also alleged, inter alia, two counts of conspiracy to murder in aid of racketeering (the “Murder Counts”).

3. The Motion to Dismiss

Basciano moved to dismiss the substantive racketeering count and the Murder Counts of the 2005 Indictment on double jeopardy grounds. The district court denied the motion.

The Appeal

On appeal, Basciano partially succeeded. The court found that the substantive racketeering count of the 2005 Indictment violated the Double Jeopardy Clause, but that the Murder Counts did not.

1. The Legal Standard

The Double Jeopardy Clause protects against successive prosecutions for offenses that are “the same in fact and in law.” Basciano’s first claim was that the Murder Counts violated double jeopardy with respect to the 2003 Indictment's racketeering conspiracy count. As to this claim, since the statutes were different, the question turned on whether the crimes were “the same in the legal sense, as defined by Congress" under the “same-elements test” of Blockburger/Dixon. For the substantive racketeering claim, since the 2003 Indictment and the 2005 Indictment alleged violations of the same statute, the issue turned on whether the crimes “are the same in fact,” that is, whether a “reasonable person familiar with the totality of the facts and circumstances would construe the substantive racketeering” pled in the 2003 Indictment “to include the substantive racketeering” pled in the 2005 Indictment.

2. No Double Jeopardy Violation For The Murder Counts

The court rejected Basciano’s argument that the Murder Counts were barred because those crimes were “legally subsumed” in the 2003 Indictment’s racketeering conspiracy, which charged him with conspiring to conduct the affairs of the Bonanno Family through a pattern of racketeering that included murders.

Basciano argued that the court should apply a“same-conduct” test, and not the traditional Blockburger/Dixon same-elements test. He noted that, in one post-Dixon case, the circuit had left open the possibility in dicta that in situations “where one of the statutes covers a broad range of conduct,” examination of “the allegations of the indictment rather than only the terms of the statutes” would be appropriate to a double jeopardy assessment. Here, the court declined this invitation, noting that it has consistently construed Dixon to preclude fact-based assessments of double jeopardy claims based on successive prosecutions under different statutes.

Here, under Blockburger/Dixon, the result was easy. The racketeering conspiracy statute charged in the 2003 Indictment has different elements from the murder-in-aid-of-racketeering statutes charged in the Murder Counts. They were thus “legally distinct offenses no implicating double jeopardy concerns.”

3. Double Jeopardy Barred The Substantive Racketeering Count of the 2005 Indictment

Finding that the substantive racketeering count in the 2005 Indictment charged Basciano with conducting the affairs of the same enterprise through the same pattern of racketeering as the substantive racketeering count in the 2003 Indictment, the court reversed and remanded for dismissal of that count.

For successive substantive racketeering prosecutions to place a defendant twice in jeopardy for the same offense, both the enterprise and the pattern of racketeering activity must be the same. Here, the government conceded that the enterprise in the 2003 Indictment was the same as that in the 2005 Indictment - the Bonanno Family. The circuit concluded, however, that the patterns were also the same.

The court first noted that Basciano had made a strong preliminary showing that the two Indictments alleged the same pattern. They used “identical language to describe” the Family’s criminal methods and the means by which its affairs were conducted. Moreover, the Indictments relied on common predicates and the government had proved some of the predicates alleged in the 2005 Indictment to “complete the story” of the racketeering charge at the trial on the 2003 Indictment. The circuit noted that the “story” being “completed” was that of the broad pattern of racketeering engaged in by the Bonanno Family.

Thus, the government failed to establish that the pattern in the 2003 Indictment was different from that alleged in the 2005 Indictment. The court rejected the government’s claim that the pattern in the 2005 Indictment was narrower than, and distinct from, that in the 2003 Indictment, because the later pattern was defined by a limited time and purpose - defending the family after it was threatened by a series of 2004 arrests, including Basciano’s own.

Here, the pattern alleged in the 2003 Indictment was described at the “highest level of generality” - the predicates were alleged simply to be related to the activities of the Bonanno Family. Although it would have been possible to plead a narrower pattern by defining it with other unifying principles, such as time or purpose, the government did not do so.

When the government first prosecutes a defendant for conducting the affairs of an enterprise through the broadest possible pattern of racketeering, which gives the government the greatest latitude to rely on a wide rage of crimes to make it case, the government’s choice has consequences. Such a pattern provides the “broadest shield against a successive racketeering prosecution based on other criminal activities fitting within that pattern.”

Given this, the court did not agree that the language of the 2005 Indictment alleged a distinct, narrow pattern. First, that count alleged a pattern of activity from February 1997 to June 2005; it hardly supported “a preponderance finding that the charged pattern is defined by the limited goal of defending the Family ... in the wake of [Basciano’s] arrest,” which occurred in 2004. Similarly, while the 2005 Indictment alleged that Basciano continued to participate in the Family’s affairs after his arrest, it “nowhere asserts that the pattern through which he conducted the Family’s affairs after his arrest is distinct from, as opposed to a mere continuation of, the pattern through which he conducted the Family’s affairs before his arrest.” While it might have been possible to plead a distinct pattern of conduct based on Basciano’s post-arrest activity, the 2005 Indictment “as it stands does not support a conclusion that the alleged pattern more likely than not is distinct from that charged" in the 2003 Indictment.

To get around this problem, the government argued that the pattern alleged as to Basciano in the 2005 Indictment should be defined only by the predicate acts ascribed to him, since he was not placed “in jeopardy” by the predicates attributed to others, an argument that the Court dismissed as an effort to “rewrite the indictment.” First, a racketeering indictment does not put a defendant in jeopardy for any predicate acts; it puts him in jeopardy only for conducting an enterprise though a pattern of activity that is defined by its related predicates. Thus, the pattern charged against Basciano cannot be limited to the predicates attributed to him on the theory that he is not being put in jeopardy for acts attributed to others. Moreover, in a single-count racketeering case, a court cannot identify the charged pattern by reference only to those predicates attributed to a particular defendant. This would risk the identification of multiple racketeering patterns rather than the single, common pattern alleged by the grand jury. Only the grand jury can decide whether an individual defendant should be charged with a pattern different from his co-defendants. Finally, the government’s argument ignores those cases holding that evidence beyond a defendant’s own predicate acts is relevant to establishing the charged pattern of racketeering.

Having found that Basciano satisfied his initial burden, the court turned to the multi-factor Russotti test for determining whether, under the totality of the circumstances, the “reasonable person” test was met. This test considers: (1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge.

Here, (1) as to timing, there was a partial overlap of nearly eight years. Although this “did not necessarily signal identical patterns,” the court noted that all of the predicates charged in the 2003 Indictment occurred during the time period of the 2005 Indictment. Thus the timing of the predicates did not “permit a preponderance finding” that the 2005 Indictment pattern was narrower than and distinct from that in the 2003 Indictment. (2) In terms of participants, the 2003 Indictment named Basciano and “unnamed others," while the 2005 Indictment charged Basciano and two named co-defendants. But, warning against exalting form over substance, the court noted that in viewing the two counts together, “a number of overlapping participants” could be discerned. (3) The similarity of the statutory offenses charged in the two Indictments supported the same conclusion. “Where racketeering activity consists of similar offenses, distinct patterns are not foreclosed, but their likelihood diminishes.” (4) The court’s discussion of the “nature and scope” prong was its most detailed. It first found similar motives in the two patterns. Both the 2005 Indictment and the 2003 Indictment included murders committed with the specific objective of exerting and preserving Bonanno authority whenever its leadership fell vulnerable to law enforcement. The court thus concluded that the totality of the predicates established that the two patterns were not distinct. Finally, (5) as to location, there was no real dispute that both Indictment alleged activities that took place in the metropolitan area.


PC World

United States v. Bari, No. 09-1074-cr (2d Cir. March 22, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)(per curiam)

The court’s most recent per curiam addresses a district court’s use of the results of an Internet search, in part, to find that the defendant violated his supervised release.

On release from a long bank robbery sentence, Bari faced a supervised release violation for robbing another bank. The district court found him guilty after a two-day hearing. In finding against him, the court cited: a bank employee’s identification of Bari’s voice; the similarity between Bari’s height, weight and posture to those described by witnesses to the robbery; Bari’s suspicious conduct at or near the bank around the time of the robbery; the similarity between Bari’s car and one seen near the bank just after the robbery, and; the similarity between the yellow rain hat worn by the robber - as depicted in a surveillance video - and one found in Bari’s landlord’s garage. As to this last point, the district judge noted that there were lots of different kinds of yellow rain hats - a fact he confirmed with a Google search - and that the similarity helped persuade him that Bari was the bank robber.

On appeal, Bari argued that the Internet search violated Evidence Rule 605, which prevents a judge from testifying as a witness, and Rule 201, which deals with judicial notice. The circuit affirmed. It first considered whether the Federal Rules of Evidence apply at a supervised release revocation hearing at all. Noting that it had already resolved this question for probation revocations, the court held that the rules of evidence, except those governing privileges, do not apply “with their normal force in supervised release revocation hearings.” They do, however, provide “some useful guidelines” that will help ensure that the district court’s findings are based on “verified facts” and “accurate knowledge.” The evidentiary constraints at such hearings “should be loosened, although not altogether absent.”

In a footnote, the court disposed of the Rule 605 claim, noting that the rule does not apply in the context of judicial notice. If a judge improperly testified whenever he took judicial notice of a fact, “it would be effectively impermissible to take judicial notice of any fact.”

Moreover, the district court did not err in conducting an independent Internet search “to confirm its intuition that there are many types of yellow rain hats for sale.” Rule 201 permits a judge to take judicial notice of a fact that is “not subject to reasonable dispute” that is either “generally known” or “capable of accurate and ready determination” through accurate sources. Here, the fact at issue was indeed one of “common knowledge,” since common sense would lead one to suppose that there are many types of yellow rain hats. The Google search here served only to confirm this.

The court closed by noting the utility of the Internet in answering this type of question. Instead of going to a department store to survey the rain hats for sale, a judge need take only a few moments to “confirm his intuition by conducting a basic Internet search.” And, “[a]s the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that.” Thus, at a revocation hearing, where only a “relaxed form” of Rule 201 applies, a judge is free to use a search engine to confirm his intuition on a matter of common knowledge.


Sunday, March 21, 2010

Summary Summary

Here are two more interesting summary orders.

In United States v. Spivack, No. 08-6091-cr (2d Cir. March 18, 2010), the prosecutor allowed a government witness to testify falsely that the defendant was a pedophile. The court characterized this as “outrageous” and as “severe misconduct.” But here, in light of the measures adopted to cure the misconduct and the certainty of conviction in the absence of the misconduct, Spivack was not prejudiced. The court also noted that some of the prosecutor’s comments about the nature of the child pornography in the case were “troubling” given their relationship to the false testimony, but did not rise to the level of misconduct, and that the prosecutor’s closing references to Lolita were “more problematic” - they had no purpose “other than to inflame the jury” - but did not amount to a due process violation.

In United States v. Gjidija, No. 07-3546-cr (2d Cir. March 15, 2010), the court modified a restitution order by deducting $5,000 that was “unattributable to any victim.” It also noted that the defendant could file a 2255 motion arguing that his counsel was ineffective even though he had already successfully filed one arguing that his appellate counsel was ineffective for failing to perfect his appeal. Since the first 2255 merely caused the district court to vacate the sentence and enter a new judgment from which Gjidiaj could appeal, he had not yet collaterally attacked the final judgment.

Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA's registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current - including providing the address of his residence - in each jurisdiction where he resides, is employed or is a student. In addition, within three business days after each “change” of residence, the offender must appear in person at an “appropriate office” and inform it of all changes in his information.

In the district court, Van Buren claimed that his termination of his hotel residence in New York was not a “change” in residence because he did not establish a new residence elsewhere. The government countered that leaving the hotel was by itself a sufficient “change” to trigger SORNA. The district court agreed that terminating a residence with no intention of returning requires a sex offender to update his information, and instructed the jury accordingly.

Van Buren pursued this claim on appeal, without success. The circuit held that Van Buren’s terminating his residence in New York to travel to North Carolina with no intention of returning qualified as a “change” in residence under any definition of the word “change.” It was a “change” in the sense of going from “something to nothing” and it was also a change in the sense of “going from something to something else.”

Moreover, regardless of the semantics, the circuit held that it was clear that SORNA covered Van Buren’s conduct. Indeed, its legislative history specifically notes that sex offenders’ moving from one state to another presents the “most significant enforcement issue in the sex offender program.” The statute is therefore not ambiguous such that the rule of lenity would apply.


An Unwelcome Edition

United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)
(Leval, Katzmann, Livingston, CJJ)

In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years. This estimate was based on the 2004 Edition of the guideline manual, the version in effect at the time of Gilmore’s sentencing, but the government later realized that this was erroneous because it resulted in a harsher sentence than the 2003 Edition, which was in effect at the time of the offense.

Gilmore’s PSR used the 2003 Edition, under which the guideline range was ninety-seven to 121 months’ imprisonment. Since this was less than the mandatory minimum, the PSR concluded that the guideline sentence was fifteen years.

At sentencing, however, the district court upwardly departed to thirty years due to the nature of the conduct. On Gilmore’s first appeal, the circuit vacated the sentence on the ground that the district court did not give Gilmore notice of its intent to impose an above-guideline sentence.

On remand, the district court imposed the same sentence. It gave several reasons for the sentence, including its recognition that the guideline manual in effect at the time of sentencing recommended a life sentence. While the district court found no ex post facto problem in looking to the 2004 Edition, it made clear that the guideline range it was using came from the 2003 Edition and that the sentence it selected was a non-guideline sentence under § 3553(a). The court noted that the fact that the 2004 Edition would have recommended a life sentence “support[ed] the reasonableness” of the thirty-year term.

On this, Gilmore’s second appeal, the circuit affirmed. Even though the government joined in the request for a remand on this point, the circuit found no violation of the Ex Post Facto Clause in the district court’s reference to the 2004 Edition for guidance. The court ducked the thornier issue of whether the Ex Post Facto Clause even applies to the guidelines in the wake of Booker, and instead agreed with the district court that there was no violation in looking to a later edition of the guideline manual to evaluate the seriousness of Gilmore’s offense and the reasonableness of the sentence imposed. Here, the district court “explicitly recognized” that the 2003 Edition applied and its reference to the 2004 Edition “was not a part of its analysis of” Gilmore’s guideline range. Since the 2004 Edition was not applied here, merely consulted, there was no ex post facto problem.


Saturday, March 20, 2010

An Exercise in Frivolity

United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)
(Winter, Sack, CJJ, Cogan, DJ)

Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months’ imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct - he had no contact with a child, and did not distribute the images. The court sentenced him at the bottom of the range, noting “I see no reason to deviate form the ranges that are set forth in the Sentencing Guidelines.”

On appeal, he argued that the sentence was procedurally unreasonable because the district court treated the guidelines as presumptively reasonable, and that it was substantively unreasonable for largely the same reasons he cited in the district court. The government, in response, did not file an opposition brief. Instead, it moved for summary affirmance. The circuit denied the motion and issued this opinion to explain its reasons.

The court began by noting that summary affirmance, as opposed to full merits briefing, is discretionary on the part of the appellate court and should be treated as “a rare exception to the completion of the appeal process.” It is a “short-cut” and, given the stakes involved, is only available if an appeal is truly “frivolous.” In criminal appeals, in particular, the decision to characterize a case as frivolous is “particularly perilous.”

Next, the court defined “frivolous” - an appeal is frivolous when it “lacks an arguable basis either in law or in fact.” That a “correct resolution of [the] appeal seems obvious” is not enough. Rather, a case is frivolous only where the legal conclusions are “inarguable” or the factual allegations are “fanciful.”

Here, the panel did not think that Davis’ appeal was frivolous. His procedural claim rested on a “close reading of the language used by the district court.” He argued that the court’s statement that it found “no reason” to give a non-Guideline sentence suggested that it was operating from the presumption that a guideline sentence would be reasonable. While the panel did not rule on whether this interpretation of the district court’s statement was correct, it concluded that it was neither “inarguable nor totally devoid of support.”
Thus, while the panel did not need to reach Davis’ arguments on substantive reasonableness, it observed nonetheless that those arguments were also non-frivolous. His claim t that the district court’s sentencing decision reflected an insufficient consideration of some of the statutory factors was “not so completely baseless as to be frivolous.”

The court accordingly denied the motion for summary affirmance and directed the clerk to set a briefing schedule.


This decision, while procedurally anomalous, is nevertheless quite important because of its impact on Anders briefs. It sets a very high bar for frivolousness, and should cause all counsel who are considering filing an Anders brief to think very carefully about whether there might be some view of the record, no matter how weak, that would lend itself to a merits brief instead.


Sunday, March 14, 2010

Summary Summary

Summary orders of interest have literally been piling up on my desk. Here's the latest crop:

In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury’ finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor.

In United States v. Nazario, No. 09-0953-cr (2d Cir. March 11, 2010), the court noted, but did not resolve, the looming tension between Samson v. California, 547 U.S. 24 843, 857 (2006), which held that for a California parolee the Fourth Amendment does not prohibit suspicionless searches, and the court’s own precedents on the reasonableness of parole searches.

In United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010), the court remanded for resentencing where, under Williams, the defendant was not eligible for the mandatory consecutive § 924(c) sentence that he received. However, the court noted that the issue is now before the Supreme Court and thus that it “would likely be an efficient use of judicial resources to await the Supreme Court’s resolution of this issue before resentencing.”

In United States v. Barrios, No. 08-4354-cr (2d Cir. March 9, 2010), the court noted a circuit split on the question whether a vehicle impoundment under the police community caretaking function must be made under standardized procedures, like inventory searches, but did not resolve the issue because the defendant did not raise in the district court. But the court found plain error in the imposition of consecutive terms of supervised release - 18 U.S.C. § 3624(e) requires that they be concurrent.

In United States v. Jones, No. 09-1009-cr (2d Cir. March 9, 2010), the court found no error when, at a supervised release violation, the district court sentenced the defendant in criminal history category VI, even though at his original sentencing the court had departed down to category V. The guidelines for supervised release violations permit, but do not require, a similar departure when calculating the violation sentence.

In United States v. Kelly, No.08-2247-cr, (2d Cir. March 3, 2010), the court found no constructive amendment where the indictment charged that the defendant escaped from a halfway house, but proof at trial showed that he never reported there at all.

Checking References

United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)

At Deandrade’s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed.

Deandrade argued that those references improperly impaired the presumption of innocence under Estelle v. Williams, 425 U.S. 501 (1976). The circuit disagreed, noting that in situations like this, several other courts have held that under Estelle “brief and fleeting references are generally allowed, but extended comment is impermissible.” The circuit agreed, holding that “a brief and fleeting comment on the defendant’s incarceration during trial, without more, does not impair the presumption of innocence to such an extent that a mistrial is required.”

There was accordingly no error here. The remarks were isolated, “apparently unintentional on the part of the prosecution,” incidental to legitimate questioning and the government did not refer to them again.

Deandrade also raised an interesting sentencing issue. He argued that his prior juvenile delinquency adjudication could not serve as a “prior conviction” to enhance his mandatory minimum under 21 U.S.C. §§ 841(b) & 851. The court did not decide the issue,however, since Deandrade’s sentence was higher than the mandatory minimum and it was clear from the record that the prior conviction did not affect the sentence in any way. But in a footnote, the court noted, “without comment” that the Third Circuit has held that a prior delinquency adjudication is not a "conviction" under these statutes.


Saturday, March 13, 2010

PC World

United States v. Muse, No. 07-4483-cr (2d Cir. March 11, 2010)(Walker, Calabresi, Wesley, CJJ) (per curiam)

Two defendants in a large khat prosecution appealed the multi-million dollar forfeiture orders against them, arguing that a defendant in a drug case is not subject to forfeiture where he does not have assets to satisfy the judgment at the time of sentencing. The court joined the First, Third, Seventh and Ninth Circuits in rejecting that argument and holding that 21 U.S.C. § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing. The court noted that this was consistent with the statute’s language and purpose and that a contrary interpretation “could have the undesirable effect of creating an incentive for an individual involved in a criminal enterprise to rid himself of his ill-gotten gains to avoid the forfeiture sanction.”



United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” - one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 - the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that version of the statute, the Supreme Court first held that a defendant who received drugs in exchange for a gun violated § 924(c), then later held that a defendant who received a gun in exchange for drugs did not. A person did not “use” a firearm “simply by receiving it in a barter transaction.”

But the current version of the statute contains a different theory of culpability. A person can now violate § 924(c) if he “possesses a firearm” “in furtherance of” a drug trafficking crime. The Supreme Court has not addressed whether paying for a gun with drugs satisfies this language, and the Second Circuit long ago mentioned it only in dicta, noting that “trading drugs for a gun will probably” violate the statute.

Since then, however, several other circuits have held that trading drugs for weapons constitutes possession in furtherance of a drug trafficking crime, although there is a split, with the Third Circuit seemingly going the other way.

The circuit had little trouble joining the majority. It noted that the defendants possessed the guns and that their doing so furthered a drug trafficking crime - their own sale of the crack cocaine to the gun seller. It is “natural to say that a person who trades drugs for guns ‘possesses’ the guns ‘in furtherance of’ the transaction.” Moreover, the defendants instructed the gun seller to sell the crack to raise the money he owed them. Thus, their possession of the guns promoted “further drug trafficking” as well.


Final Examination

United States v. Culbertson, No. 09-0485-cr (2d Cir. March 10, 2010) (Miner, Cabranes, CJJ, Rakoff, DJ)

Defendant Troy Culbertson, acting pro se, moved in the circuit for poor person’s relief and for appointment of counsel to pursue an interlocutory appeal of the district court's orders (1) denying his speedy trial motion, (2) refusing to appoint him new counsel, and (3) denying his request for a psychiatric evaluation. Noting that the appealability of these last two orders presented questions of first impression in the Second Circuit, the court found that none of the orders was “final” and dismissed the appeal.

By way of background, Culbertson was arrested at the airport, where he met up with a known drug courier. He was detained and within a month went through three appointed attorneys. After his arraignment, he filed a pro se motion to dismiss the indictment on speedy trial grounds, which the court denied. After that, his counsel moved to be relieved and the court appointed a fourth attorney. The district court rejected his effort to fire that attorney, and instead directed Culbertson to go pro se, with his current attorney as standby counsel. Culbertson then moved for dismissal of the indictment under the Speedy Trial Act, appointment of counsel and for a competency evaluation. The district court denied all three.

The court of appeals concluded that none of the district court’s orders was appealable as a final order under 28 U.S.C. § 1291, and none fit within the “collateral order doctrine,” the Supreme Court’s extremely narrow standard for permitting interlocutory appeals in criminal cases.

A Speedy Trial Act denial is not final, since fulfillment of the Act “would be rendered impossible if every pretrial order were appealable.” Moreover the Act does not encompass a “right not to be tried” that needs to be upheld prior to trial, and a violation of the Act is reviewable on appeal from the final judgment.

Likewise, an order denying appointment of counsel - while perhaps a closer call - is not subject to an interlocutory appeal. It can be reviewed on appeal from the final judgment and, again, does not implicate a right not to be tried. The court distinguished the denial of an attorney’s motion to withdraw, which it has considered on an interlocutory appeal, because the injury to an attorney forced to represent a client against his will “is irreparable” and would be “effectively unreviewable upon final judgment.”

Finally, while the court has permitted the interlocutory appeal of a pretrial order finding the defendant mentally incompetent to stand trial, here it concluded that an order denying a psychiatric examination - in essence a finding that the defendant is competent - is not immediately appealable.

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Trailer Trashed

United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)

In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it.

After further surveillance, the agents arrested the defendants, one of whom admitted that drugs were hidden in a rooftop compartment of the trailer. After receiving verbal consent to search the warehouse and its contents, but with no search warrant, the agents ripped open the roof of the trailer and discovered 230 kilograms of cocaine.

The district court suppressed the cocaine. It rejected the argument that the verbal consent to a general search of the warehouse extended to a physically invasive search of the trailer. The court also concluded that the automobile exception did not apply, holding that a stationary trailer stored in a warehouse, detached from its cab with its legs dropped, was not subject to the exception.

On the government's appeal, the circuit reversed. After surveying the rationales underlying the exception - the inherent mobility of and reduced expectation of privacy in an automobile - the court held that the search of the trailer was permissible.

First, as to mobility, it is a vehicle’s inherent mobility, not the probability that it might actually be set in motion, that matters. Thus, the “trailer sans cab” could be treated as inherently mobile in the same way that, decades ago, the Supreme Court held that a “wagon without a horse” could be. The trailer had its own wheels, could have been connected to any cab and driven away, and its legs served only to stabilize it temporarily. Nor was it relevant that the defendants were all detained and the warehouse secured by the time of the search - those facts “had no bearing on the inherent mobility of the trailer itself.”

The circuit also found a reduced expectation of privacy in the trailer - an issue that the district court did not consider at all. The trailer was used for transportation, with no objective indicia of residential use. Moreover, the pervasive state and federal regulation of interstate commercial trucking further supported a reduced expectation of privacy.

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Strong Arm Of The Law

United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)

Here, the circuit upheld the use of Walker’s prior conviction for “strong arm robbery” - a South Carolina common law offense - as a “crime of violence” to enhance his offense level under the firearms guideline. The court rejected the argument that only statutory offenses can be used as guideline enhancements, agreeing with the Ninth Circuit that “when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” Common law offenses are just as amenable as statutory offenses to the “categorical approach for enhancement determinations.”

The guideline at issue expressly includes “robbery” as a “crime of violence.” Thus, since “strong arm robbery” in South Carolina corresponds in substance to the generic meaning of robbery, it qualifies. The South Carolina Supreme Court has defined the offense as the “felonious or unlawful taking of money, goods, or other personal property of any value from the person of another in his presence by violence or by putting such person in fear.” This definition corresponds “in all material respects” to the generic definition of robbery.


The Liar's Flub

United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)

Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a “discharge” 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility.

After he pled, but before his sentencing, Savoca testified at his brother’s trial and unsuccessfully tried to exonerate him. After the brother's conviction, when Savoca was sentenced, the district court found that he committed perjury at the trial. It accordingly added 2 levels for obstruction of justice and denied him the 3-level reduction for acceptance of responsibility. With a new range of 183-198 months, the court sentenced Savoca to 190 months, and noted that it would have imposed the same sentence even if the range were lower.

A year later, Savoca filled a § 2255 motion alleging that his appellate counsel was ineffective in failing to follow Savoca’s instruction to file a timely notice of appeal. After a hearing, the district court granted the motion and scheduled a resentencing hearing. The parties agreed that the court could either simply enter an amended judgment from which a notice of appeal could be taken, or conduct a full resentencing. The district court chose not to conduct a new sentencing, noting that Savoca should not benefit from his appellate counsel’s ineffectiveness, there was no change in the law that might affect the sentence, and that, given the offense and Savoca’s history, there was nor reason to revise the original sentence. It therefore entered an amended judgment with the same sentence.

This time, Savoca filed a notice of appeal. But the circuit affirmed. It first found that the district court properly took into account his testimony at his brother’s trial. This was consistent with the obstruction guideline and the district court’s findings on the issue were adequate. The denial of the acceptance of responsibility adjustment was likewise correct. It avoided the “incongruous” finding that Savoca both accepted responsibility and perjured himself as to the same events.

Finally, the court held that a full resentencing was not necessary. On granting the 2255, the district court had the discretion to decide whether any useful purpose would be served in reconsidering the sentence. Given the reasons it cited, the court did not abuse that discretion.

A Main Event

United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)

In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U.S.C. § 3582(c)(2).

Last year, in United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009), the court held that a defendant sentenced under an 11(c)(1)(C) agreement was ineligible for a § 3582(c)(2) sentence reduction. See
“Out Of Range,” posted August 30, 2009. Here, the 11(c)(1)(C) agreement specified a 168-month sentence, to run concurrent with Green’s undischarged state sentence. However, by the time Green was to be sentenced, he had completed the other sentence. His attorney wrote to the government and proposed that instead the sentence be 145 months. The government agreed, although not in writing, and at sentencing, the judge agreed as well and imposed the 145-month term. Years later, but before Main was decided, when Green moved for a § 3582(c)(2) sentence reduction, the court denied the motion on the ground that the 145-month sentence was already “effectively” in the lower range.

On Green’s appeal, the circuit held that Main applied, even though the sentence was different from that specified in the written 11(c)(1)(C) agreement, rejecting Green’s argument that the sentence was not imposed pursuant to Rule 11(c)(1)(C). The court found that the parties’ agreement on a 145-month sentence, although not reduced to writing, was still a Rule 11(c)(1)(C) sentence, and hence was covered by Main.

The court thus affirmed even though, in one respect, the district court did not comply with Rule 11(c)(1)(C). The rule requires that the agreement be disclosed when the plea is offered, and here the amended agreement was not. In order to accomplish this, the district court would have had to let Green withdraw his plea and reenter it. The Rule 11 error was harmless, however, since the amended agreement was disclosed in open court, and the record was clear Green understood the new terms.